The Charlotte City Council Monday night began grappling with the impact that the new Residential Aesthetics law (SB 25 – ‘Zoning/Design & Aesthetic Controls) will have on its rezoning process. The legislation, signed by Governor Pat McCrory June 19th, prohibits local governments from regulating “building design elements” on residential single-family homes, townhomes and duplexes, and applies to any ordinances adopted before, on, and after the effective date.
The law defines “building design elements” as:
The law does not prohibit design requirements pertaining to local historic districts or areas listed on the National Register. It does not interfere with neighborhood covenants or private contracts. And it DOES NOT prevent property owners from freely offering architectural conditions as part of a rezoning or development approval.
But it was this last point that appeared to create the most confusion for Council members. City Attorney Bob Hagemann, who met a few weeks ago with REBIC and a group of local zoning attorneys, told Council he worried the City would be in legal jeopardy if staff, planning commissioners or elected officials questioned home builders or residential developers about any of the elements restricted by the law.
Hagemann said he was still struggling with how to deal with language in the legislation that allows building material or design requirements to be applied to a property if they were ‘voluntarily consented to’ by the property owners seeking a rezoning or development plan approval.
REBIC believes this language means that ONLY the rezoning petitioner can present or discuss design elements on a project (brick exteriors, front porches, recessed garages, etc.), or volunteer a list of design conditions to which they would bound should the rezoning be approved. But Hagemann said he and his staff were considering requiring petitioners to sign an affidavit to this extent, to protect the City from any legal jeopardy regarding design criteria agreed upon in a rezoning.
Hagemann also told Council members that the law would require the City to rewrite portions of its zoning and development ordinance to eliminate any by-right requirements that deal with residential design or materials. REBIC believes this also applies to small area plans, which often contain guidelines about residential character.
Mayor Dan Clodfelter, who sponsored the earliest version of the aesthetics bill when he served as a member of the North Carolina Senate, said the legislation was necessary to counteract regulatory overreach by a number of local governments around the state. While he didn’t think the impact on Charlotte would be significant (city staff said only seven zoning decisions from 2014 would have been affected by the law), he said aesthetic design requirements in some North Carolina communities have been used in an exclusionary manner, to limit the construction of affordable housing.
REBIC looks forward to working with the City of Charlotte and other local governments in the region to help them achieve compliance with the new aesthetics law.
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