Opinion

LIGHTNING EDITORIAL: Legislature undercuts local zoning authority

By Lightning Editorial Board, Published: January 21, 2025

Cities and counties are just now starting to absorb the magnitude of the state Legislature’s stealth effort to abolish their authority to manage growth through zoning.

Senate Bill 382 became law on Dec. 11 when the state House voted to override Gov. Roy Cooper’s veto of the legislation, following the Senate override nine days earlier. Disguised as "Disaster Relief," SB 382 undercut the governor's power and, in a little noticed section, weakened the power of cities and counties to zone.

The bill, which outlaws “downzoning” without a landowner’s consent, severely curbing the ability of cities and counties to curb higher density development in crowded or sensitive areas. This could mean areas that are already too congested or areas served by inadequate rural roads. Or — in an example that will be cited plenty in these parts — it could mean no downzoning to protect farmland.

Bill Lapsley, chair of the Henderson County Board of Commissioners, sounded the alarm last week when it came his turn to identify priorities for the upcoming year. Commissioners worked for nearly three years on a rewrite of the county’s comprehensive land-use plan, adopting several goals intended to preserve farmland (although fewer than conservationists sought). As one could imagine, a board of commissioners in a rural farm-centric county might very well decide to make the buyout of farmland less profitable by surrounding the land — apple orchards, might be one example — with estate lot zoning instead of 10 units/acre multifamily zoning.

“All of a sudden, to be thrown this curve ball of downsized zoning limitations flies in the face, from my point of view, of everything that this board did and our planning board did in trying to preserve farmland,” Lapsley said. All that effort “now is in jeopardy because of an action in the Legislature that we didn’t know anything about. So that’s something that’s early here, in the next month or two months, I think we need to make sure is addressed.”

Addressing the law was to start here on Tuesday afternoon (after print deadline for this week’s Lightning). Lapsley inked it in as a primary discussion item of the Local Government Committee for Cooperative Action. If Henderson County commissioners are alarmed, we can only imagine what elected leaders in Hendersonville, Mills River, Laurel Park and Flat Rock think about a law that has eliminated their ability to rezone land from 10 units per acre to detached single-family dwellings.

The alarm has now been sounded around the state, too. But what’s telling is that the N.C. League of Municipalities, which fields a stout and alert lobbying corps in the capital, is having to chase this herd of horses after someone left the barn door open.

“We’re hoping they strike the provision and recognize that whatever was attempting to be accomplished here, this was not the way to do it,” said Scott Mooneyham, the League’s director of political communication. As Business NC and its sister newsletter, the North Carolina Tribune, reported this month, the undercutting of local government’s autonomy in managing growth gets worse the closer one looks.

Because the bill is retroactive to take in any zoning action in the six months before it became law, a downzoning enacted by a city council or county commission from June 11 on could be invalid.

It gets worse still — especially here in the Helene-ravaged Appalachian mountains — when one considers another consequence: It may undercut cities’ and counties’ ability to limit development in floodplains. Business NC’s Ray Gronberg flags an analysis by UNC School of Government professor Adam Lovelady warning that the law could invalidate local leaders’ ability to use zoning to protect property — and lives — post-Helene.

“When (flood-mitigation) standards are revised or (floodplain) maps are updated, local governments must take action to update local ordinances accordingly,” Lovelady said. “Such action could amount to a downzoning, and the local government may be caught between the federal or state requirements and adhering to the limits on downzoning.”

In other words, the imperious drum majors of the General Assembly have marshaled a parade of horribles into law — without regard to the need for floodplain protection, farmland preservation, prevention of overdevelopment or limiting traffic congestion, and, indeed, without even consulting cities and counties.

We get that the sponsors of this disastrous shortsighted bill might have some laudable policy goals in mind — affordable housing and property rights among them. We’re guessing that they are about to hear loud and clear why this was a terrible way to try to achieve such goals.