After my unkind post of this past Saturday (Property Good – Government Bad), I’d like to commend the legislature for proposing a bill to enact a change I’ve been suggesting for years. House Bill 806, if enacted, would distinguish between zoning text amendments and zoning map amendments, two completely different concepts that are treated the same for purposes of statutes of limitation. For land use practitioners, this is a big deal.
Rather than drafting something new, I’ll quote from a paper I’m presenting tomorrow at a seminar for attorneys in Cary. (If nothing else, it proves that I’ve already presented the idea publicly inasmuch as this paper was written and submitted for printing weeks ago).
“We use the term “zoning ordinance” to apply to map amendments and text amendments, two completely different actions – two completely different concepts – yet treat them as if they are exactly the same thing.
Let’s look at the difference.
Map Amendments – a map amendment changes the status of a specific tract of land. Map amendments typically occur when somebody holds a set of building blueprints, is seeking or already has secured financing for everything from land clearing to brick and mortar, there is a bulldozer parked nearby, and contractors and subs have submitted bids based on current market prices.
Not only this, but everyone who potentially has a dog in the fight has been notified of the change and had a chance to become a participant in discussions.
It is only fair to the owner/buyer/builder that any challenges occur within a reasonable time for the challenger to hire an attorney who prepares the pleadings. Two months (or better, sixty days) makes sense.
Text Amendments – A text amendment changes the processes and standards for the entire jurisdiction. A text amendment typically occurs when a member of the planning staff or elected body wants to change a definition or a requirement in the zoning laws that affect the entire jurisdiction. Nobody is notified by mail. Most of them slip through without media notice. And most importantly, very few people have standing at the time to challenge the ordinance. Sometimes nobody has standing.
There are no bulldozers waiting to bulldoze. There is no financing term that expires within the month. And there are no construction contracts. There is no reason whatsoever for such a short period of time to appeal a text amendment.
However, over several decades of jurisprudence our courts have either failed or refused to acknowledge the difference between map and text amendments, and they simply repeat the mantra “a zoning ordinance must be brought within two months.”
And there’s yet another problem here. If the text amendment that nobody had standing to challenge at the time was adopted illegally or unconstitutionally, or is illegal or unconstitutional on its face, then why should we allow local governments an escape clause by which they can either use or bestow upon themselves illegal powers simply by granting them a statute of limitations cover to hide behind. We legalize what is illegal.
The Fix – Amend the statute to clarify that only map amendment adopted by ordinance are subject to a 60 day statute of limitations. Zoning text amendments should be treated like statutes.”
And those ten preceding paragraphs explain the problem. HB 806 provides that the statute of limitations to challenge a text amendment begins to run as soon as you have standing to challenge it, and runs for two years.
However, it fails to address another problem. Map amendment challenges are to be filed within “two months.” The problem is that “two months” is not precisely determinable because there is no standard length month. We should change it to 60 days.
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