Two recent cases out of North Carolina emphasize the importance for municipalities and counties to carefully follow statutory requirements for notice and public hearing before enacting land use regulation. North Carolina General Statute §160A-364 requires that a public hearing be held before the municipality’s governing body before zoning legislation can be enacted. It also requires that notice of the public hearing be given once a week for two successive weeks in a newspaper having general circulation in the area. General Statute §153A-323 sets the same requirements for counties when enacting or amending land use ordinances.

In Molamphy v. Town of Southern Pines, 2004 U.S. Dist. LEXIS 3594, (M.D.N.C. March 29, 2004), the federal district court for the Middle District of North Carolina held that the failure of the Town to strictly comply with the notice requirements in the state enabling legislation cited above, rendered a land use amendment, prohibiting convenience stores in certain zoning districts, null and void. The plaintiff in that case sought to build a convenience store. The Town Council proposed a zoning amendment to prohibit the proposed convenience store. The Town published notice of a "Request to amend Section 146, Use 2.111." The Town then held the public hearing and enacted an ordinance which effectively disallowed the plaintiff’s proposed convenience store.

Even though the plaintiff did receive notice of the hearing and, in fact, attended and spoke in opposition to the ordinance, Magistrate Judge Eliason held that because the Town published the two notices of the meeting in one week rather than consecutive weeks, the amendment was void. Furthermore, he held that the vague description in the notice was not sufficient to provide notice of the public hearing. Judge Eliason described the wording in the newspaper notice as "nothing less than cryptic shorthand that the meeting may take up the topic of zoning with respect to convenience stores." He emphasized that notice must "be descriptive and informative beyond some vague, cryptic notation" and that the failure to be sufficiently descriptive invalidated the notice, and consequently, the ordinance.

Then, last month in Sandy Mush Properties, Inc. v. Rutherford County, 595 S.E.2d (May 4, 2004), the North Carolina Court of Appeals issued a similar decision invalidating a land use ordinance because of inadequate notice. In Sandy Mush, Rutherford County noticed a public hearing to consider an ordinance to prohibit heavy industry within 2000 feet of schools and churches, but published the legal advertisement only one time. After the public hearing, the Commissioners voted to impose a building moratorium prohibiting heavy industry in school zones while the planning commission considered a zoning plan to deal with the same. Eventually, a zoning amendment was noticed, a public hearing was held and the County enacted an ordinance, which effectively disallowed the plaintiff’s quarry.

During the moratorium period, the plaintiff had applied for a building permit to operate a crushed stone quarry and had been denied. The plaintiff sued alleging, among other things, that the moratorium had been invalid because the County did not publish notice once a week for two successive weeks in a newspaper of general circulation as is required before a land use ordinance is enacted. The Court of Appeals rejected the County’s argument that the moratorium was enacted under its general police power, and accordingly, was not subject to the notice requirements related to land use ordinances. The Court held that because the County was partially zoned, the moratorium had the effect of making areas of the county that were not zoned, subject to zoning prior to the adoption of a zoning ordinance. Accordingly, the moratorium was a sort of temporary land use plan while the County’s planning commission considered a permanent land use plan and the notice provisions should have been followed. Failure to publish once a week for two successive weeks caused the moratorium to have been void and therefore, the plaintiff’s building permit should have been issued.

If you have any questions regarding this alert or other Land Use and Zoning issues, please contact Kacey Ragsdale at 919.783.2957 or kragsdale@poynerspruill.com or Robin Tatum at 919.783.2931 or rtatum@poynerspruill.com.