In an effort to directly notify officials they’re ignoring State Law, I recently sent this letter, via email, to Mr. Greg Beal, CZO Economic Development Coordinator, Director of Planning & Development for Mt Holly, NC. Rather than recount the issue to you, this letter will not only effectively cover the details, but provide the vernacular and facts needed to understand this problem.
Dear Mr. Beal:
It has recently come to our attention that the City of Mount Holly is contemplating adopting additional aesthetic and minimum square footage requirements, among others, as conditions of voluntary annexation. It is unclear to us whether these additional requirements will be added to the Design Guidelines for Voluntary Residential Annexation document or be included in a future ordinance. While it appears that the City has, since at least May of 2008, required property owners seeking voluntary annexation into the municipality to abide by certain architectural guidelines, that practice should have been ceased following the passage of S.L. 2015-86.
That law, now codified as GS 160D-702(b), provided that any regulation relating to building design elements “may not be applied to any structures subject to regulation under the North Carolina Residential Code for One-and Two-Family Dwellings”. That act’s definition of “building design elements” which may not be regulated includes those currently in the City’s “design guidelines” as well as those being contemplated. Further, the act provides that “regulations prohibited by this subsection may not be applied, directly or indirectly, in any zoning district or conditional district…or development approval.” We believe the City’s voluntary residential annexation process clearly qualifies as a “development approval”.
While the act does provide that aesthetic regulations may be applied if “voluntarily consented to by the owners of the property”, we believe that any local government which explicitly requires consent to any “building design elements” prohibited by GS 160D-702(b), if challenged, would not be found to be voluntary. This conclusion is strongly supported by the Supreme Court’s analysis in the Lanvale* case in flatly rejecting Cabarrus County’s argument that its APFO “voluntary mitigation fee” was, in fact, “voluntary”.
Further, in 2019, the General Assembly enacted a provision prohibiting local governments from setting a minimum square footage for any structure subject to regulation under the residential code [GS 160D-702(c)]. That prohibition doesn’t contain any provision that would allow it to be applied by “consent”.
Finally, in Section 12 of the recently enacted S.L. 2024-45, it prohibits public water and sewer systems from imposing unauthorized conditions which provides additional support for this position. Since the primary (if not the only) reason to seek voluntary annexation is to obtain municipal water and sewer services, we strongly believe that this new act prohibits not only building design elements and minimum square footage requirements which are specifically set forth in the act but also any other condition “not otherwise authorized by law”. In particular, we would point to the specific provision that not only prohibits a local government from requiring an applicant to agree to any unauthorized condition but also prohibits the local government from accepting any offer by the applicant to consent to any condition not otherwise authorized by law.
These provisions have been adopted by the General Assembly to directly address several of the housing attainability burdens that, unfortunately, have been put in place by many local governments around the state. We request that you cease and desist from such actions that directly conflict with the sections of current law summarized above. Please let me know if you would like to discuss this matter further. I’m hopeful we can come to a resolution that meets some of the City’s goals while it preserves affordability for those seeking housing options within Mount Holly.
Sincerely,
Rob Nanfelt
Executive Director
Real Estate & Building Industry Coalition (REBIC)
*https://caselaw.findlaw.com/court/nc-supreme-court/1611498.html
My take: By powerfully inserting our voices into the conversation, we are hopeful we can correct misinformed elected officials at the local level. Take the time to read this, and click on the links, so you can understand the scope of this issue.
Our REBIC representatives in Cabarrus County have been attending most all city council meetings to keep tabs on the lack of SFD water and sewer allotments granted in Concord. Although we hear about some positive movement towards viewing data through a more current and accurate lens of actual gallon usage in today’s modern homes, we continue to report mounting problems. At the City’s last allotment meeting the Council approved ZERO H2O permits for all residential, discovering residential requests do not fit into the current rating system. Right now we only see allotments granted to commercial development sites. There is another allotment meeting scheduled for next month and REBIC is hopeful this metric will begin to shift. We will keep an eye on the progress.
My take: We believe placing fair market principles at the helm of decisions always leads to economic stability for all shareholders. Also, this is yet another example of why we’re playing catch-up when it comes to keeping up with housing demand, especially affordable housing.
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