The debate over Zoning/Design & Aesthetic Controls, (House Bill 150) concerns two basic issues: how much control we want government to have over consumer choice, and whether we want government in North Carolina to function as its founders intended.
Lets address the latter issue first.
To understand why the Real Estate and Building Industry Coalition (REBIC) and other industry groups support this bill, one has to understand the basic constitutional structure of government in our state. Unlike some other states, which prioritize local control, North Carolina is a Dillon Rule state, meaning local governments function as extensions of the state and may exercise only powers expressly granted through state legislation.
The authority to implement a local zoning ordinance is granted by the state for a specific set of purposes. North Carolina General Statute 160A-381 reads, 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.
Read that language again. Nowhere in it do you see mention of exterior materials, porches, how far the garage can be from the front of the home or other architectural elements. Clearly, local governments do not have the authority to regulate design through zoning ordinances. This point forms the foundation for our support of HB 150. Its irrelevant whether local governments should regulate architectural design.
Under current law they cannot.
Clearly, N.C. cities and towns are regulating residential design. Huntersville and Davidson require garages to be set back from the front of a home. Mint Hill requires half the homes in a Conservation Subdivision to be built from brick. None of this is legal.
Thats why legislation was introduced in 2011 to clarify that the regulation of aesthetic design was prohibited, at least for residential construction. Last fall, an N.C. Supreme Court ruling did something else. In Lanvale Properties, LLC v. Cabarrus County, the court said an Adequate Public Facilities ordinance on the books in one Charlotte-area county was illegal because the county commissioners never requested, nor were granted, any authority to impose one.
Writing for the court, Justice Barbara Jackson wrote that a local governments zoning authority cannot be exercised in a manner contrary to the express provisions of the zoning enabling authority. Local governments cannot assume zoning powers which they have not expressly been granted.
But even if local governments did not need explicit authority to impose residential design requirements, would the regulation be sensible? We think not.
The home building industry spends millions researching buyer preferences so builders can tailor plans to each local market and price point. The research most often shows homebuyers, particularly those buying a first home, care less whether their house is brick or Hardiplank, and more about the mortgage payment. Residential design requirements interfere with consumer choice and can add thousands to the cost of a home, putting homeownership out of reach for countless working families.
HB 150 does not prohibit design requirements in historic districts or areas listed on the National Register of Historic Places. It does not interfere with neighborhood covenants or private contracts. It does not prevent property owners from offering architectural conditions during rezoning or development approval. But it will ensure that N.C. housing remains affordable, and preserve the rights of builders and consumers to decide what their home should look like.
Padilla is executive director of Real Estate & Building Industry Coalition. He wrote this for PlanCharlotte.org.
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