Today the House of Representatives overwhelmingly passed bipartisan legislation limiting when a county or municipality may enact zoning ordinances to control design and aesthetics of private property. Senate Bill 25, just approved by a vote of 98 to 17, now heads to the Governor’s desk for his signature.
“Government does not have the authority to tell homeowners what they can and cannot do aesthetically on properties that they privately own and maintain,” said Representative Nelson Dollar, the primary sponsor of similar legislation first introduced in the 2013-2014 session. “Today we were able to return more personal liberties to the people of North Carolina.”
The legislation is designed to protect homeowners’ private property rights from pesky Gladys Kravitz types in local government by limiting the ability of city councils and county commissions to control the aesthetic details of private single family residences, duplexes and townhomes. These “building design elements” include their architectural design, exterior color, interior layout of rooms, kinds of exterior cladding (siding) used, style or materials of roof structures and porches, location and styling of windows or doors, and number, type and interior layout of rooms, etc.
Examples of this kind of overreach include:
- The Raleigh neighborhoods of South Park, Cameron Park and North Boylan require that main entrances face the street or in the same direction as the other homes under its Neighborhood Conservation Overlay;
- The towns of Huntersville and Davidson have a “garage-scape” ordinance, which requires that a garage can be no closer to the street than the house;
- The Town of Cary has an “anti-monotony” ordinance, which requires architectural variety among houses in a neighborhood (we can’t make this stuff up);
- The Town of Mint Hill requires that a certain percentage of homes be constructed entirely of brick, according to their Conservation Subdivision;
- The City of Charlotte wants to require that a house on a corner lot have a set number of windows on the side.
But not for long.
The General Assembly grants local governments limited authority to enact and implement local zoning ordinances for specific purposes. The governing statute (North Carolina General Statutes 160A-381) says that “a zoning ordinance may regulate and restrict the height, number of stories and size of buildings and other structures, the percentage of lots that may be occupied, the size of yards, courts and other open spaces, the density of population, the location and use of buildings, structures and land.”
But some of our city and county governments in North Carolina have broadly interpreted the law so they can regulate aesthetic elements not at all associated with safety and construction standards or the general character of a neighborhood.
The so-called “broad construction policy” does give local governements some latitude in implementing zoning rules, granting the exercise of “additional and supplementary powers that are reasonably necessary and expedient” in implementing housing regulations. But, since many of the grants of zoning power are stated in brief and general terms, it can be difficult to determine the limits of this authority.
The law plainly states that local governments do not have the authority to regulate design through their zoning ordinances, but some cities and counties are using this approach of “broad construction” to overstep their bounds. Some affected property owners have challenged local governments in court over these overly-broad interpretations, and the courts have not been disposed to give cities the latitude they seek to expand their authority.
North Carolina law has held that reasonable and limited regulation (based on aesthetic considerations) can be reason enough to exercise regulatory power. For example, a number of courts have ruled that zoning measures based on general community appearance considerations, such as situations involving signs, telecommunications towers, resource conservation districts, accessory buildings and structures, historic preservation, fences, and manufactured housing. Our courts have held that these measures may be used to protect property values, promote tourism, and preserve the character of the community.1
More recently, however, in the 2012 case Lanvale Properties vs Cabarrus County, the North Carolina Supreme Court ruled that cities may not use this broad construction policy to enlarge the scope of their authority beyond the express intent of the law. In writing for the court, Justice Barbara Jackson said that a local government’s zoning authority “cannot be exercised in a manner contrary to the express provisions of the zoning enabling authority.”
As a matter of decided constitutional law, cities and counties are “creatures” of the state. The General Assembly entrusts them to fairly administer and exercise the specific powers granted to them — and nothing more.
Referring to the Lanvale case, Executive Director at the Real Estate and Building Industry Coalition Joe Padilla said, “This ruling clearly articulates that local governments cannot assume zoning powers which they have not expressly been granted. So even if a city or town was imposing residential design standards through a liberal reading of the state zoning statute that implied such authority, the Lanvale ruling says those standards are illegal.”
An expansive interpretation of the law has led some cities to assume they have the authority to control such design elements as: exterior building color; type or style of exterior cladding material; style or materials of roof structures, garage doors and porches; exterior nonstructural architectural ornamentation; location or architectural styling of windows and doors, including garage doors; the number and types of rooms; and the interior layout of rooms and minimum square footage.
According to the North Carolina Association of Realtors, “one local zoning ordinance currently requires an 8ft. deep front porch over 40% of the front of the house. This mandate alone adds approximately $9,600 to the cost of a 60ft. wide house but it doesn’t translate to increased value when the house is appraised.”
Legislators and industry experts contend that the regulation of appearance and interior design clearly goes beyond the intent of the law and places an unreasonable burden on property owners to conform to strict, unreasonable, and often costly standards.
“The home building industry spends millions each year researching buyer preferences so builders can design plans tailored to each local market and price point,” said Joe Padilla. “This research most often shows that home buyers, particularly those making their first purchase, are less concerned about whether their house is covered in brick or Hardiplank, and more concerned with whether they can afford their monthly mortgage payment.”
Over the years, numerous studies have looked at the impact that zoning and other land use controls have on the cost of housing. Edward Glaeser of Harvard University and Joseph Gyourko of the University of Pennsylvania found that zoning and other land use restrictions contribute significantly to the cost of housing:2
“The bulk of the evidence that we have marshaled suggests that zoning and other land-use controls are more responsible for high prices where we see them…Measures of zoning strictness are highly correlated with high prices. While all of our evidence is suggestive, not definitive, it seems to suggest that land-use regulation is responsible for high housing costs where they exist.” (Source: The Impact of Zoning on Housing Affordability).
An explicit clarification of the law would not only return control over aesthetics to builders and homeowners, but the greater economic freedom afforded them would enhance a city’s ability to grow and prosper.
And the residential housing industry would also benefit from a rollback of regulation. According to Bernard Helm of Market Opportunity Research Enterprises, “Less-restrictive communities get more growth. It makes it easier for a builder to reach a market for his product.”
If adopted, uncertainty about the application of design standards to single-family residential development would be resolved.3
The bill does contains exemptions for homes in historic districts, for individual historic buildings, and for mobile homes. And the bill makes it clear that it does not restrict the ability of neighborhood associations to establish and enforce design standards through a voluntary contract or covenant; it only prohibits the use of coercive means for achieving this end. The legislation specifically excludes setback provisions, use of buffering or screening to minimize visual impacts or impact of light and noise, or regulations governing permitted uses of land in defining “building design elements.”
The North Carolina Home Builders Association has been seeking legislation for many years to limit local governments control over design standards 4 and has been a strong supporter of this and similar prior bills. Other groups supporting the legislation include the North Carolina Association of Realtors, the Real Estate and Building Industry Coalition, the North Carolina Housing Coalition, and Habitat for Humanity.
- Coates’ Canons: “A Few Thoughts on Community Appearance and Design Controls“
- Brian Phillips: “Zoning and the Cost of Housing“
- Coates’ Canons: “A Few Thoughts on Community Appearance and Design Controls“
- NC Construction News: “HB 150 Would Limit Local Government in Setting Design Standards for Residential Housing“