North Carolina § 160D-108 - Permit choice and vested rights.

§ 160D-108. Permit choice and vested rights.

Findings. - The General Assembly recognizes that local government approval of development typically follows significant investment in site evaluation, planning, development costs, consultant fees, and related expenses. The General Assembly finds that it is necessary and desirable to provide for the establishment of certain vested rights in order to ensure reasonable certainty, stability, and fairness in the development regulation process, to secure the reasonable expectations of landowners, and to foster cooperation between the public and private sectors in land-use planning and development regulation. The provisions of this section and G.S. 160D-108.1 strike an appropriate balance between private expectations and the public interest. Permit Choice. - If a land development regulation is amended between the time a development permit application was submitted and a development permit decision is made or if a land development regulation is amended after a development permit decision has been challenged and found to be wrongfully denied or illegal, G.S. 143-755 applies. Vested Rights. - Amendments in land development regulations are not applicable or enforceable without the written consent of the owner with regard to any of the following: Buildings or uses of buildings or land for which a development permit application has been submitted and subsequently issued in accordance with G.S. 143-755. Subdivisions of land for which a development permit application authorizing the subdivision has been submitted and subsequently issued in accordance with G.S. 143-755. A site-specific vesting plan pursuant to G.S. 160D-108.1. A multi-phased development pursuant to subsection (f) of this section. A vested right established by the terms of a development agreement authorized by Article 10 of this Chapter. Duration of Vesting. - Upon issuance of a development permit, the statutory vesting granted by subsection (c) of this section for a development project is effective upon filing of the application in accordance with G.S. 143-755, for so long as the permit remains valid pursuant to law. Unless otherwise specified by this section or other statute, local development permits expire one year after issuance unless work authorized by the permit has substantially commenced. A local land development regulation may provide for a longer permit expiration period. For the purposes of this section, a permit is issued either in the ordinary course of business of the applicable governmental agency or by the applicable governmental agency as a court directive. Multiple Permits for Development Project. - Subject to subsection (d) of this section, where multiple local development permits are required to complete a development project, the development permit applicant may choose the version of each of the local land development regulations applicable to the project upon submittal of the application for the initial development permit. This provision is applicable only for those subsequent development permit applications filed within 18 months of the date following the approval of an initial permit. For purposes of the vesting protections of this subsection, an erosion and sedimentation control permit or a sign permit is not an initial development permit. Multi-Phased Development. - A multi-phased development is vested for the entire development with the land development regulations then in place at the time a site plan approval is granted for the initial phase of the multi-phased development. A right which has been vested as provided for in this subsection remains vested for a period of seven years from the time a site plan approval is granted for the initial phase of the multi-phased development. Continuing Review. - Following issuance of a development permit, a local government may make subsequent inspections and reviews to ensure compliance with the applicable land development regulations in effect at the time of the original application. Process to Claim Vested Right. - A person claiming a statutory or common law vested right may submit information to substantiate that claim to the zoning administrator or other officer designated by a land development regulation, who shall make an initial determination as to the existence of the vested right. The decision of the zoning administrator or officer may be appealed under G.S. 160D-405. On appeal, the existence of a vested right shall be reviewed de novo. In lieu of seeking such a determination or pursuing an appeal under G.S. 160D-405, a person claiming a vested right may bring an original civil action as provided by G.S. 160D-1403.1. Miscellaneous Provisions. - The vested rights granted by this section run with the land except for the use of land for outdoor advertising governed by G.S. 136-131.1 and G.S. 136-131.2 in which case the rights granted by this section run with the owner of a permit issued by the North Carolina Department of Transportation. Nothing in this section precludes judicial determination, based on common law principles or other statutory provisions, that a vested right exists in a particular case or that a compensable taking has occurred. Except as expressly provided in this section, nothing in this section shall be construed to alter the existing common law. [Definitions. - ] As used in this section, the following definitions apply: Development. - As defined in G.S. 143-755(e)(1). Development permit. - As defined in G.S. 143-755(e)(2). Land development regulation. - As defined in G.S. 143-755(e)(3). Multi-phased development. - A development containing 25 acres or more that is both of the following: Submitted for development permit approval to occur in more than one phase. Subject to a master development plan with committed elements showing the type and intensity of use of each phase. The establishment of a vested right under any subdivision of this subsection does not preclude vesting under one or more other subdivisions of this subsection or vesting by application of common law principles. A vested right, once established as provided for in this section or by common law, precludes any action by a local government that would change, alter, impair, prevent, diminish, or otherwise delay the development or use of the property allowed by the applicable land development regulation or regulations, except where a change in State or federal law mandating local government enforcement occurs after the development application is submitted that has a fundamental and retroactive effect on the development or use. Except where a longer vesting period is provided by statute or land development regulation, the statutory vesting granted by this section, once established, expires for an uncompleted development project if development work is intentionally and voluntarily discontinued for a period of not less than 24 consecutive months, and the statutory vesting period granted by this section for a nonconforming use of property expires if the use is intentionally and voluntarily discontinued for a period of not less than 24 consecutive months. The 24-month discontinuance period is automatically tolled during the pendency of any board of adjustment proceeding or civil action in a State or federal trial or appellate court regarding the validity of a development permit, the use of the property, or the existence of the statutory vesting period granted by this section. The 24-month discontinuance period is also tolled during the pendency of any litigation involving the development project or property that is the subject of the vesting. History (2019-111, s. 2.4; 2020-3, s. 4.33(a); 2020-25, ss. 5(a), 50(b), 51(a), (b), (d).) Editor's Note. - Session Laws 2020-3, s. 4.40(a)-(g), provides: "(a) Definitions. - As used in this section, the following definitions apply: "(1) Development approval. - Any of the following approvals issued by any unit of local government, regardless of the form of the approval, that are for the development of land: "a. Any approval of an erosion and sedimentation control plan granted by a local government under Article 4 of Chapter 113A of the General Statutes. "b. Any building permit issued under Article 9 of Chapter 143 of the General Statutes. "c. Any approval by a county of sketch plans, preliminary plats, plats regarding a subdivision of land, a site-specific development plan or a phased development plan, a development permit, a development agreement, or a building permit under Article 18 of Chapter 153A of the General Statutes. "d. Any approval by a city of sketch plans, preliminary plats, plats regarding a subdivision of land, a site-specific development plan or a phased development plan, a development permit, a development agreement, or a building permit under Article 19 of Chapter 160A of the General Statutes. "e. Any certificate of appropriateness issued by a preservation commission of a city under Part 3C of Article 19 of Chapter 160A of the General Statutes. "(2) Development. - The division of a parcel of land into two or more parcels, the construction, reconstruction, conversion, structural alteration, relocation, or enlargement of any building or other structure or facility, or any grading, soil removal or relocation, excavation or landfill, or any use or change in the use of any building or other structure or land or extension of the use of land. "(b) For any development approval that is current and valid at any point during the period beginning March 10, 2020, and ending April 28, 2020, the expiration date of the period of the development approval and any associated vested right under G.S. 153A-344.1 or G.S. 160A-385.1 is extended for five months. "(c) This section shall not be construed or implemented to: "(1) Extend any permit or approval issued by the United States or any of its agencies or instrumentalities. "(2) Extend any permit or approval for which the term or duration of the permit or approval is specified or determined pursuant to federal law. "(3) Shorten the duration that any development approval would have had in the absence of this section. "(4) Prohibit the granting of such additional extensions as are provided by law. "(5) Affect any administrative consent order issued by the Department of Environmental Quality in effect or issued at any time from the effective date of this section to September 28, 2020. "(6) Affect the ability of a government entity to revoke or modify a development approval or to accept voluntary relinquishment of a development approval by the holder of the development approval pursuant to law. "(7) Modify any requirement of law that is necessary to retain federal delegation by the State of the authority to implement a federal law or program. "(8) Modify any person's obligations or impair the rights of any party under contract, including bond or other similar undertaking. "(9) Authorize the charging of a water or wastewater tap fee that has been previously paid in full for a project subject to a development approval. "(d) The provisions of this section shall be liberally construed to effectuate the purposes of this section. "(e) For any development approval extended by this section, the holder of the development approval shall: "(1) Comply with all applicable laws, regulations, and policies in effect at the time the development approval was originally issued by the governmental entity. "(2) Maintain all performance guarantees that are imposed as a condition of the initial development approval for the duration of the period the development approval is extended or until affirmatively released from that obligation by the issuing governmental entity. "(3) Complete any infrastructure necessary in order to obtain a certificate of occupancy or other final permit approval from the issuing governmental entity. "(f) Failure to comply with any condition in this section may result in termination of the extension of the development approval by the issuing governmental entity. In the event of a termination of the extension of a development approval, the issuing governmental entity shall provide written notice to the last known address of the original holder of the development approval of the termination of the extension of the development approval, including the reason for the termination. Termination of an extension of a development approval shall be subject to appeal to the Board of Adjustment under the requirements set forth in law if the development approval was issued by a unit of local government with planning authority under Article 18 of Chapter 153A of the General Statutes or Article 19 of Chapter 160A of the General Statutes. "(g) This section is effective when it becomes law and expires September 28, 2020." Session Laws 2020-3, s. 5, is a severability clause. Session Laws 2020-25, s. 5(a), enacted subsection (j) without a heading. The bracketed heading "[Definitions. - ]" has been added to the subsection at the direction of the Revisor of Statutes. Session Laws 2020-25, s. 50(b), provides: "Sections 5, 10, 14, 16, 17, 18, 45, 46, 47, [which amended or enacted 160D-108, 160D-108.1, 160D-405, 160D-603, 160D-703, 160D-705, 160D-706, 160D-1402, 160D-1403.1, 160D-1403.2, respectively] and the amendments to G.S. 160D-1405(c) in Section 48 incorporate in Chapter 160D of the General Statutes the provisions of Sections 1.2, 1.3, 1.6, 1.7, 1.8, 1.9, 1.10, 1.12, 1.13, 1.14, 1.15, and 1.17 of S.L. 2019-111 [which amended or enacted former 160A-360.1, 153A-320.1, 160A-385, 160A-385.1, 153A-344, 153A-344.1, 160A-388, 160A-393.1, 160A-364.1, 160A-393, 160A-393.2, 160A-381, 153A-340, 160A-382, 153A-342, 153A-346, and 160A-390, respectively], clarify and restate the intent of existing law, and apply to ordinances adopted before, on, and after the effective date of this act." Session Laws 2020-25, s. 51(b), provides: "Part II of S.L. 2019-111 [which enacted this Chapter] is effective when this act becomes law [June 19, 2020]. Part II of S.L. 2019-111 clarifies and restates the intent of law existing on the effective date of this act [June 19, 2020] and applies to ordinances adopted before, on, and after that date. Valid local government development regulations that are in effect at the time of the effective date of Part II of S.L. 2019-111 remain in effect but local governments shall amend those regulations to conform to the provisions of Part II of S.L. 2019-111 on or before July 1, 2021. Part II of S.L. 2019-111 applies to local government development regulation decisions made on or after the earlier of: "(1) The effective date of the amendments to local development regulations made to conform to the provisions of Part II of S.L. 2019-111 or "(2) July 1, 2021." Effect of Amendments. - Session Laws 2020-25, s. 5(a), effective June 19, 2020, rewrote this section. Legal Periodicals. - For article, "Out of Focus: The Fuzzy Line Between Regulatory 'Takings' and Valid Zoning-Related 'Exactions' in North Carolina and Federal Jurisprudence," see 16 Campbell L. Rev. 333 (1994).