Sara Messina

Rezoning ProjectReal Property Planning

2/8/16

Preparing for a City Council Hearing on Rezoning

To use your property as a retail store, you have decided current zoning ordinances
marking the property for general residential use only will need to be changed to a central
business zoniong use. The property is currently serving as a rooming house, but the owners have
already contractually agreed to sell the property to you. A proposal for rezoning in front of a city
council requires the proponent to 1. make a case for rezoning a property under North Carolina
law and town zoning ordinances, and 2. rebut challenges to the rezoning which may include
direct opposition or efforts to encumber the project so it would no longer be worthwhile. To get
the property rezoned, you should convince the council and attending community members you
have a legally permissible use in mind which will benefit the community.
To make a successful case for rezoning you must demonstrate how:
1. The rezoning is consistent with the purpose of zoning. Namely, changing the zoning
classification continues to promote the public health, safety, and general welfare. N.C.
Gen. Stat. 153A-341 (West 2015).
2. The rezoning would not be illegal spot zoning or contract zoning.
I.

The rezoning is consistent with the purpose of zoning. Namely, changing the zoning
classification continues to promote the public health, safety, and general welfare. N.C.
Gen. Stat. 153A-341 (West 2015).
Your rezoning is consistent with the purpose of zoning because changing the designation
from residential to business will uphold the intent expressed in the ordinances, and your requisite
improvements to the property will promote public health, safety, and general welfare. Town
ordinance 6.2 states the intent of a residential district zoning is to stabilize existing residential
areas and promote well planned new residential areas by limiting the occurrence of conflicting
uses in such residential areas and to promote a pleasant, healthful environment. In contrast, a
central business district promotes the use of property for retail and office use. 6.3. Your
rezoning would assist the residential zoning purpose by maintaining the outward characteristics
of the residential property which are consistent with the nearby residential properties while also
serving the business zoning interest through expanding parking and services available for the
business district abutting your propertys boundaries.
Your rezoning does not create a distinctive, conflicting building amid the other residences.
The residential requirements also meet the requirements for business zoning, including
minimums for lot area, width, and front, side, and rear yard area. Additionally, your signage is
restricted to a maximum fixed to the proportions of the building. However, since you will
already maintain the buildings residential character, it is likely sufficient to have signage limited
to the same six square feet as neighboring houses. Furthermore, businesses and homes alike are
forbidden from having flashing or otherwise lit signs which shine upon neighbors. See 6.2 and
6.3. The dimensional requirements for business zoning requires additional setback for a public
sidewalk, and would require an increase in parking.
Under the ordinance, you would not be required to provide off-street parking. Currently,
however, the existing rooming house only requires one parking space per room rented for
resident parking. On rezoning, this parking would become publicly available parking near the

Sara Messina
Rezoning ProjectReal Property Planning

2/8/16

business district, which you could restrict to be available during business hours only to avoid
disturb the residential homes at night or in early morning hours.
Residents may object to the encroachment of retail space onto residential land. In compensation,
residents or the city may suggest impact fees, exaction, or dedication to mold the use of your
property with their concerns. Impact fees charge for the increase use or expansion of public
resources, such as water and sewer systems. Properties under Lillington town ordinance are
subject to impact fees for water and sewer usage. These fees are fixed and not avoidable. Trying
to appeal application of the fees would likely spoil public support and contribute to the rezoning
becoming a detriment to the surrounding community as the extra impact incurs an expense which
must be paid for. An example of the impact fee schedule as applied to new construction, likely in
our case, is a minimum of $4,150 to a maximum of $5,750 plus cost of materials, but not
including possible offsets. See http://treefree.harnett.org/weblink/0/doc/207051/Electronic.aspx.
Exaction and dedications require you to agree to certain burdens in exchange for permission
to use the property as you want. Exactions and dedications mean you no choice on how a
portion of your property is used, and would receive no monetary compensation for the lost value.
In doing so, the city risks committing an illegal taking of your property because a nexus must
exist between legitimate state interest and permit condition exacted by city; and degree of
connection between exactions and projected impact of proposed development. Dolan v. City of
Tigard, 512 U.S. 374, 114 S. Ct. 2309, 129 L. Ed. 2d 304 (1994). However, we can rebut
arguments such impositions by demonstrating how maintaining the propertys original structure
will limit the impact on the city infrastructure, and its existing dimensions already sufficiently
provide for public needs.
Again, the propertys current zoning provides for no public parking or sidewalks. In contrast,
a retail store would provide parking spaces for patrons shopping in your store and nearby stores,
as well as require a setback for a sidewalk where one does not currently exist. As a show of
good faith and cooperation, you may want to show a willingness to pay impact fees in the
interest of compensating the city for the loss of residential housing. However, I would do so
with the utmost caution as the city would determine the value of the loss, and acknowledging
such a detriment may detract from your other contentions of benefit.
II.

The rezoning would not be illegal spot zoning or contract zoning.

The essential element of spot zoning is a small tract of land owned by a single person and
surrounded by a much larger area uniformly zoned. Covington v. Town of Apex, 1992, , 108
N.C.App. 231, 423 S.E.2d 537 (1992). The North Carolina Supreme Court has enumerated
several factors that are relevant to a showing of the existence of a sufficient reasonable basis for
spot zoning.
1. The size of the tract in question.
2. The compatibility of the disputed action with an existing comprehensive zoning plan.
3. The benefits and detriments for the owner, his neighbors and the surrounding community.
4. The relationship of the uses envisioned under the new zoning and the uses currently present in
adjacent tracts. Id.Covington v. Town of Apex, 108 N.C. App. 231, 423 S.E.2d 537 (1992).
Illegal contract zoning is a transaction wherein both the landowner who is seeking a certain

Sara Messina
Rezoning ProjectReal Property Planning

2/8/16

zoning action and the zoning authority itself undertake reciprocal obligations in the context of a
bilateral contract. Massey v. City of Charlotte, 145 N.C. App. 345, 550 S.E.2d 838 (2001)
The North Carolina Supreme Court has enumerated several factors that are relevant to a
showing of the existence of a sufficient reasonable basis for spot zoning:
1. The size of the tract in question.
2. The compatibility of the disputed action with an existing comprehensive zoning plan.
3. The benefits and detriments for the owner, his neighbors and the surrounding community.
4. The relationship of the uses envisioned under the new zoning and the uses currently present in
adjacent tracts.
Covington v. Town of Apex, 108 N.C. App. 231, 238, 423 S.E.2d 537, 541 (1992) (citing
Chrismon, 322 N.C. at 628, 370 S.E.2d at 589.) [O]ur Courts have found illegal spot zoning
present in cases in which the tract of land at issue ranged from 0.58 acres..to fifty acres.
McDowell v. Randolph Cty., 186 N.C. App. 17, 22-23, 649 S.E.2d 920, 924 (2007) (citing see
Mahaffey v. Forsyth County, 99 N.C.App. 676, 394 S.E.2d 203 (1991) and Good Neighbors, 355
N.C. 254, 559 S.E.2d 768 (2002). Firstly, with such a broad range, it is likely your property is of
eligible size for spot zoning analysis.
Secondly, compatibility considers the compatibility of surrounding zoning in contrast
with the suggested zoning. Your use is not compatible with residential zoning, but the whole of
your property is not surrounded by residential zoning. As such the counsel only needs sufficient
support which is not was not arbitrary, capricious or without plausible basis where such lot was
adjacent to and directly across street from existing areas previously zoned the same as your
suggested rezoning. Nelson v. City of Burlington, 80 N.C. App. 285, 341 S.E.2d 739 (1986). As
the rest of the central business district abuts your property can serve as an additional residentialstyle buffer between private homes and retail industry. The proposed rezoning would allow for
the intent of having the residential zoning to be preserved while being a benefit to the business
district. Other rezoning proposals have been rejected as expansions of a business district for
services readily available elsewhere. Mahaffey v. Forsyth Cty., 99 N.C. App. 676, 683-84, 394
S.E.2d 203, 208 (1990) aff'd, 328 N.C. 323, 401 S.E.2d 365 (1991). However, our plan exists in
contrast because our proposal does not merely provide a new business, but also public resources
for which there is already a need. Thus, the residents will stand to benefit overall.
Furthermore, the relationship between your new uses and current needs is better than the
current uses as they meet current needs. You raised the question of whether the counsel would
prefer the current structure raised, or the zoning unchanged to encourage more affordable
housing. In response, the council and attendees should be reminded that the rooming house will
already be discontinued as even without a retail option you are not considering its continuance.
The encouragement of residential housing would not necessarily guarantee better housing
befitting a growing city. The city needs better access to the resources it already has, like parking
for the business district, not hold outs for resources it might get. Likewise, a less crowded
business district would encourage growth in the other residential zones as people could live
farther way but still park to use stores.

Sara Messina
Rezoning ProjectReal Property Planning

2/8/16

As discussed above, your use will provide better parking and sidewalks. Additionally,
your business will generate tax revenue and multiple jobs for the area. These benefits speak
against both contract and spot zoning. Such illegal zoning would be made to primarily benefit
you whereas having your business in that particular spot benefits primarily the public. You could
take a different property as you have not official renovated or completed purchase. You would
be out the current costs of presentation, but those are small compared to the startup costs of the
business and the gains for the community.
Overall, the zoning board and the surrounding community should accept your rezoning
suggestion as both legal and beneficial, especially in contrast to its current use.