Chapter 250 was ratified and enacted on March 5, 1923. The Zoning, Planning and Land Use Section celebrates the 100th anniversary of the North Carolina Zoning Enabling Act. The Zoning Enabling Act contained just eleven sections and empowered cities and towns to adopt zoning regulations and was just four pages long. By contrast, Chapter 160D of the North Carolina General Statutes is 131 pages, divided into 14 articles, and applies to both counties and municipalities equally.

Most of the originally adopted sections have stood the test of time. The purpose in Section 1 of the Zoning Enabling Act was to promote health, safety, morals, or the general welfare of the community. It authorized cities to regulate and restrict the height, number of stories and size of buildings and other structures, the percentage of lot that may be occupied, the size of yards, courts and other open spaces, the density of populations, and the location and uses of buildings, structures and land for trade, industry, residence or other purposes. Today, Section 160D-701 lists the following public purposes: to provide adequate light and air, to prevent the overcrowding of land, to avoid undue concentration of population, to lessen congestion in the streets, to secure safety from fire, panic and dangers, to facilitate the efficient and adequate provision of transportation, water, sewerage, schools, parks, and other public regulations, and to promote the health, safety, morals, or general welfare of the community.

Section 2 of the Zoning Enabling Act authorized the division of a municipality into districts of such number, shape and area as may be best suited to carry out the purposes of the Act. Similarly, Section 160D-703 authorizes the division of a local government’s territorial jurisdiction into zoning districts of any number, shape, and areas deemed best suited to carry out the purposes of the Zoning Regulation Article. Both required uniformity of regulations within each district but allow the regulations to differ from district to district.

Section 3 of the Zoning Enabling Act required the zoning regulations to be made in accordance with a comprehensive plan and with reasonable consideration to the character of the district and encouraging the most appropriate use of land. Today, Section 160D-605 requires the local governing board to approve a statement of consistency with the comprehensive or land-use plan and a reasonableness statement for zoning map amendments.

In 1923, Section 4 of the Zoning Enabling Act required a public hearing before any regulation, restriction, or boundary could become effective after notice of the hearing was published in a local newspaper at least fifteen days prior to the hearing. Today, Section 160D-602 requires mailed notice to the owners of affected properties and all parcels of land abutting the affected properties at least ten but not more than twenty-five days prior to the hearing. In addition, the notice must be published in a local newspaper once a week for two successive calendar weeks with the first notice at least ten but not more than twenty-five days prior to the hearing. Many if not all local jurisdictions also post the notice on their websites and alert interested persons by email.

Section 5 of the Zoning Enabling Act allowed protest petitions by the owners of at least twenty percent of the area included in a proposed zoning change or of those immediately adjacent within 100 feet. The local legislative body needed a three-fourths favorable vote to make the changes effective. Protest provisions were repealed in 2015. In addition to public hearings, Section 160D-603 now requires that citizen comments be provided to the governing board prior to the proposed vote on any zoning regulation amendment.

To implement the Zoning Enabling Act, Section 6 required each city or town to appoint a Zoning Commission to review and recommend district boundaries and appropriate regulations. Similarly, Section 160D-604 requires planning board review and recommendation of both original zoning and any zoning amendments.

Section 7 of the Zoning Enabling Act authorized the appointment of a Board of Adjustment consisting of five members with three-year terms. A four-fifths vote was required for any decision of the Board of Adjustment. Today, Section 160D-302 requires at least five members with three-year terms. However, Section 160D-406 only requires the four-fifths majority for variances, all other decisions require a simple majority. Both Section 7 and Section 160D-405 provide that an appeal of an administrative decision or determination stays enforcement of the action appealed unless the zoning official certifies that a stay would cause imminent peril to life or property. While Section 7 allowed the Board of Adjustment or a court to issue a restraining order imposing a stay, today only a court may issue the restraining order. The Board of Adjustment had the same power then and today to reverse or affirm, wholly or in part, or modify, and make such order, requirement, decision or determination as in its opinion ought to be made. Even in 1923, a Board of Adjustment could vary or modify any regulation where there are practical difficulties or unnecessary hardship. Section 160D-705 now requires showings of all four factors – (1) unnecessary hardship, (2) resulting from conditions peculiar to the property, (3) not the result of actions of the applicant or property owner (a self-created hardship), and (4) consistent with the spirit, purpose and intent of the regulation such that public safety in secured and substantial justice is achieved.

Section 8 of the Zoning Enabling Act provided for enforcement by the municipality to prevent unlawful construction, repair, or use, to restrain, correct, and abate violations, to prevent occupancy or other illegal use of the premises. Similarly, Section 160D-404 provides for stop work orders and the same types of other remedies.

Section 9 of the Zoning Enabling Act required the higher standard to be applied whenever there was conflict with other statutes, regulations, or ordinances. Section 160D-706 requires the higher standard, except where prohibited by Section 160A-174 which outlines certain ordinances which would be inconsistent with State or federal law.

The Zoning Enabling Act took effect when adopted as stated in Section 10; whereas, Chapter 160D was adopted in pieces with various and delayed effective dates and only after significant work by the Zoning, Planning and Land Use Section of the North Carolina Bar Association.

Section 11 of the Zoning Enabling Act preserved the then-existing local zoning acts unless they were repugnant or inconsistent. Similarly, Section 160D-101 states that Chapter 160D does not repeal or amend any charter or local act unless there was a clear legislative intent by the General Assembly to do so.

Interestingly, the United States Department of Commerce issued “A Standard City Planning Enabling Act” by the Advisory Committee on City Planning and Zoning appointed by Secretary Herbert Hoover in 1921. The Planning Enabling Act cost 15 cents at the time. An Advisory Committee on Zoning, with substantially the same members, was also appointed by Secretary Hoover. The Standard State Zoning Enabling Act under which Municipalities May Adopt Zoning Regulations was not issued until February 14, 1924, almost a year after North Carolina adopted its Zoning Enabling Act. The Standard State Zoning Act only cost 5 cents at the time and did not include definitions because the explanatory notes stated that terms used in the act were so commonly understood that definitions were unnecessary and a source of danger by giving words a restricted meaning. Today, Section 160D-102 contains 35 definitions, and Section 160D-706 prohibits local governments from adopting a definition of building, dwelling, dwelling unit, bedroom, or sleeping unit that is inconsistent with definitions in any other State statute or rule adopted by a state agency.

For the most part, the original zoning framework adopted in 1923 is still in effect today. We can only wonder how much zoning will change in the next 100 years!

Terri Jones is the Town Attorney for the Town of Garner.

March 8, 2023/by ZPLU