Implementing Valid Consistency Statements

To properly adopt a zoning ordinance, the North Carolina General Statutes require a number of procedural steps. One of those steps is the adoption of a “consistency statement” by the governing board. N.C.G.S. § 160A-383 states, in part:

When adopting or rejecting any zoning amendment, the governing board shall also approve a statement describing whether its action is consistent with an adopted comprehensive plan and any other officially adopted plan that is applicable, and briefly explaining why the board considers the action taken to be reasonable and in the public interest. That statement is not subject to judicial review.

In 2012, the North Carolina Supreme Court held a zoning amendment void for failure to follow the above procedure. Wally v. City of Kannapolis, 365 N.C. 449 (201). In Wally, the City of Kannapolis sought to change the zoning classification of a 75.9 acre parcel of land to a more permissive use. The zoning change had been reviewed by the City’s Planning and Zoning Commission, and staff had provided the City Council with a statement of consistency prior to adoption of the change. However, the City Council did not specifically adopt a consistency statement. Neighboring landowners challenged the rezoning.

The N.C. Supreme Court held that the rezoning was void and that the previous zoning still applied to the property because the City did not adopt a consistency statement meeting the requirements of § 160A-383. The Court determined that a consistency statement cannot be adopted by implication. The municipality must formally adopt a consistency statement independent of the zoning amendment itself. The Court also held that is also insufficient to declare that the procedural requirements have been met. They must be met in fact. The Court stated that in order to be valid the consistency statement “must describe whether the action is consistent with any comprehensive plan and explain why the action is reasonable and in the public interest.” These two elements are an absolute requirement.

Yesterday, the North Carolina Court of Appeals struck down a zoning amendment passed by the City of Charlotte. Atkinson v. City of Charlotte, COA13-1226, 2014 WL 3724134 (N.C. Ct. App. July 29, 2014). In Atkinson, the City of Charlotte had sought to amend its zoning ordinances to exclude parking decks from floor area ratio standards for institutional uses. A group of property owners challenged the amendment. Following the adoption of the amendment, the City had adopted the following statement of consistency:

“STATEMENT OF CONSISTENCY This petition is found to be consistent with adopted policies and to be reasonable and in the public interest…”

The Court of Appeals declared this statement to be invalid because it failed to explain why the amendment was reasonable and in the public interest. The City contended that the statement was not subject to judicial review based on the language of the statute. However, the Court, referencing back to Wally, indicated that that provision of the statute was applicable only when the statement itself complied with the statute. The Court, like the one in Wally, held that a court can review consistency statements to make sure that the two required elements were present. The Court found that the second element was not met because the consistency statement merely stated that the petition was “found to be consistent with adopted policies and to be reasonable and in the public interest.” It did not explain why the amendment was reasonable and in the public interest. Therefore, it had not met the statutory requirements of § 160A-383 and was therefore invalid. Because the City had failed to follow the procedural requirements for the zoning amendment, the amendment itself was also held invalid.

When adopting a zoning amendment, it is critical that a consistency statement be adopted that comports with the statutory requirement. That is, the elected board should formally adopt a statement that: (1) describes whether the amendment is consistent with any controlling land use plan; and (2) explains why it is reasonable and in the public interest. Failure to provide any description or explanation is a sure way to have your zoning amendment declared void if ever challenged.

If you have a question about your municipality’s consistency statements or whether they meet the statutory requirements, please give me a call or send me an email. I’d be happy to take a few minutes to review your statements or explain other steps your municipality can take to make sure its ordinances are upheld by the courts.


David M. Rief

David is a certified zoning official and licensed attorney who counsels local governments on land use issues. As a former planner and building inspector, he has a desire to help other planners, inspectors, and elected officials address the unique legal questions and challenges these public servants face.

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