Land Use at the State Level

North Carolina Local Governments Scramble to Decide Whether Development Approvals Should Be Tolled/Extended Through December 2011

As we’ve blogged earlier, in light of recent uncertain economic conditions the North Carolina General Assembly passed “The Permit Extension Act of 2009.” The 2009 Act–S.L. 2009-406, a safety valve for developers and local governments, alike–provided that the running and the expiration of any time limit for taking action on a development permit would be suspended for the period January 1, 2008 through December 31, 2010. Under North Carolina laws, the window within which to act on these development approvals is oftentimes quite limited.

To be clear, the 2009 Act defines “development approval” to include sketch plans, preliminary plats, subdivision plats, site-specific and phased-development plans, development permits, development agreements, erosion and sedimentation control plans, CAMA permits, water and wastewater permits, nondischarge permits, water quality certifications, and air quality permits, and building permits.

And also as we’ve previously blogged, local governments remain busy deciding whether they should “opt out” of an otherwise automatic extension of the 2009 Act through December 31, 2011, enacted this past summer as S.L. 2010-177. Local governments have until–when else?–December 31 of this year to make a final decision.

Well, we’ve already seen some tumult. For example, newly-elected Chatham County Board of Commissioners voted earlier this week to reverse the previous Board’s decision to “opt out” of the extension proposed by S.L. 2010-177. In other words, developers holding fast-expiring “development approvals” issued by Chatham County may well rest a little easier under this late-game re-decision. Other municipalities in the Triangle, including Cary and Morrisville, are taking up this week the decision to “opt out” of S.L. 2010-177.

The lesson from Chatham County’s u-turn is that these decisions aren’t final until, well, they are final. As a result, developers holding approvals (or seeking, insofar as tolling will certainly affect future approvals from a predictability standpoint) need pay attention to what municipalities and counties are doing in this regard.

We’ll continue to keep you updated through the end of the calendar year.

Mike Thelen is a lawyer in Womble Carlyle’s Real Estate Litigation practice group. He regularly represents a wide variety of clients in land use and land development issues, from local governments to businesses, in both state and federal venues throughout North Carolina.

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