In 2005, the General Assembly adopted legislation allowing local governments and developers to enter into “development agreements” for long-term, multi-phased projects. The reasons for this legislation were several, but the primary one was the inability of governments and developers to coordinate a government’s capital improvement planning while developers were pushing for or seeking changes to long-term plans to accommodate large-scale development.
Another reason we needed this legislation has been apparent for decades. When a developer proposes a project that can change the function and aesthetics of a community forever, North Carolina local governments actually discourage communication. If the process is legislative, most local governments give each side a finite time at the podium to present the project. If it’s quasi-judicial, communications with decision-makers actually are prohibited outside of the hearing. This is not poor policy. This is institutional insanity.
Development agreements provide a vehicle for ironing out countless details that govern the marriage between a large-scale project and the government’s policies and plans. They provide “time at the table.”
After having participated in the negotiation of several development agreements, several shortcomings in the legislation have become apparent to me, including, but not limited to 1) it is not clear whether regional utility authorities have the statutory authority to enter into such an agreement; 2) we don’t yet know how to include elected officials in the discussions when the ultimate decision is quasi-judicial; 3) with a 25 acre net developable minimum, a ten or twenty acre tract within or adjacent to an urban core – although of critical importance – would not qualify; 4) it is entirely unclear whether planning board review is required; and 5) the statutes leave us scratching our heads as to the statute of limitations for challenging a development agreement.
In today’s issue of Land Use Law Quarterly, the lead article is my call for several changes to the 2005 legislation. If you would like a copy, please email me at tom.terrell@smithmoorelaw.com and I will forward one to you.