Commercial Zoning

General Assembly Mulls Limitations Period Against Challenges to Validity of Zoning Ordinances

We’ve blogged in the past here and here about the two-month statutes of repose applicable against challenges to the validity of zoning ordinances, and we presented a paper — with shameless self-promotion here — on this same topic to the North Carolina Bar Association Local Government Section and the Zoning, Planning and Land Use Section.

In a nutshell, the currently-existing statutes of repose bar all comers aiming to challenge a zoning ordinance once the ordinance is two months past its date of adoption. Attempts to circumvent this bright line have met limited and varying success, which we addressed to the North Carolina Bar Association. Again, see us here.

With the introduction of House Bill 806, which made its debut some three days prior and which we briefly discussed before our colleagues at the North Carolina Bar Association, the North Carolina General Assembly is looking toward revision of those statutes of repose. At its core, the latest version of the revised statutes of repose would do as follows:

(a) Two Months, At Least for Some. Keep in place a strict two-month window within which to challenge “the validity of any ordinance adopting or amending a zoning map or approving a special use, conditional use, or conditional zoning district rezoning request.”

(b) Two Years and Accrual Is Anyone’s Guess. But for those actions outlined in (a) above, any other challenge to the “validity of any zoning or unified development ordinance … shall be brought within two years of the accrual of such action.” The General Assembly also attempts to define accrual in House Bill 806, which the current law sets at the date of ordinance adoption: “Such an action accrues when the party bringing such action first has standing to challenge the ordinance.”

(c) The “End Around”. While a head-on challenge to the validity of a zoning ordinance may be barred by either (a) or (b) above, the revised statute would be clear that these statutes of repose/limitation do not “bar a party in an action involving the enforcement of a zoning or unified development ordinance from raising as a defense to such enforcement action the invalidity of the ordinance.”

These are significant changes to a paradigm some originally believed so beneficial that the original 9-month “window” was subsequently shortened to 2 months in duration, with accrual at the date of adoption.

On May 13, 2011, the Senate received House Bill 806 from the House. Then, on May 16, 2011 and after passing its first reading, House Bill 806 was referred to the Senate Committee on State and Local Government.

We’ll continue to monitor this legislation.

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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