At WithersRavenel, our planners work with municipalities and developers on a variety of public and private projects which involve zoning. Whether it is helping a community consider ordinance changes or state compliance, or helping a builder navigate local regulations, we rely on an understanding of existing rules.
A relatively recent wrinkle in state regulations is the development of conditional zoning districts, which allow developers and municipalities to work together, often to draft specific guidelines for an individual property.
WithersRavenel Senior Planner Karen Mallo, AICP, says that conditional zoning has become more popular after North Carolina updated its zoning enabling legislation with general statue 160D.
“A straight rezoning allows for many uses for a property specific to the requested zoning district. You may be allowed to put a daycare or dry cleaner or other businesses on a property zoned for commercial,” Karen says. “When there is conditional zoning, an applicant may agree to put conditions on that property that are specific to that site alone.
“The condition might be that you can only use it for a daycare. You could only use it for a carwash.”
Communities, developers work together
An example where conditional zoning may be beneficial is in providing a trade-off for both the developer and the Town. Perhaps a developer is proposing a use and the existing adjacent residential community has asked the Town to require the developer to provide an extra 50-foot buffer. The developer is happy to provide the extra 50 feet of woodland as a buffer, if they can reduce the buffer and setback against the commercial property on the other side of the development to provide an easier pedestrian connection. The developer and community may work together to find a conditional zoning framework that would help both parties get what they want.
Standard rezoning of a property typically involves petitioning a governing body, review by staff and planning board, and a subsequent vote. Conditional zoning typically has a specific site plan, and then that site plan becomes part of the reasoning for the conditional use of the property.
“The conditional zoning locks that applicant into that design,” Karen says. “If they change that design substantially, they have to go back for another rezoning.”
The options for flexibility often vary by community, Karen says. In some communities, conditional zoning agreements cannot be any less than the standard ordinance – for example, the community will not allow developers to reduce setbacks or buffers. Other towns, however, are willing to allow flexibility in ordinance standards and developers may offer site amenities that are not required or as common, such as wider roads, trees in the middle of streets or parking lots, or other features.
“The possibility of conditional zoning allows for a creative design that wouldn’t normally be allowed by the zoning ordinance,” Karen said.
Some municipalities require a site plan and others simply allow for written conditions.
And while conditional zoning options can vary greatly from place to place, other creative options could include business and housing in the same building. Or the same land parcel could have a daycare, store, and an apartment building. At the end of the day, the flexibility to negotiate zoning rules on a specific site can often result in win-win scenarios for municipalities and would-be developers.
Ultimately though, if there is no agreement between parties, there is no conditional rezoning.
“The municipality and the applicant have to sign off on the conditions in order for it to be approved,” Karen says. “So if the applicant doesn’t agree with something the town puts forth, it won’t get approved. The same if the applicant puts forth something the town really doesn’t want. It has to be agreed upon by both parties, and it has to be something that is already regulated in the ordinance.”
Municipalities explore options
Karen says that more municipalities are interested in exploring conditional rezoning because it allows them to see the developer’s site plan or concept design, giving them more specific details on site development early in the process. Conditional rezoning can also benefit the developer in these instances, allowing them to approach a community about a less-traditional site plan that may require some rule changes but has the flexibility to be adapted to meet the community’s needs and goals, perhaps along the lines of workforce or senior housing. Some specific instances may require a text amendment to an existing zoning ordinance to stay within rules, then be followed by conditional rezoning as well.
Brendie Vega is WithersRavenel’s Entitlements Manager. She works with many private developers, often helping them navigate conditional rezoning in communities across the Triangle. The process can be challenging, as more communities want to see detailed master plans before giving the green light to developments.
“We try to help developers get through the conditional rezoning process, by communicating with staff, and if we can, with elected officials,” she said. For many conditional rezonings, a partnership with a land use attorney is a valuable safeguard to assure compliance and legality with both existing rules and agreements. These partnerships can also enhance communication between municipalities and developers.
Ideally, the conversations between developers and municipalities can yield unique solutions. Brendie has seen conditional rezonings yield oversized stormwater ponds to address drainage concerns. Other agreements have included sidewalk enhancements, historic home preservation, accelerated development amenity construction, or transportation improvements.
Conditional zoning can have drawbacks. For large properties that require multiple developers, the first set of rules agreed upon may not fit with every small development in that site. Additionally, a neighborhood may have rules that residents years down the road may have to adhere to that aren’t a good fit for the community anymore, and may have to lead to zoning changes.
Change from past procedures
In the days before conditional zoning, special-use permits (SUPs) and quasi-judicial hearings were a frequent process and way to rezone property. These processes involved expert witnesses and procedural process that more resembled courts than council meetings – and did not give the public much of a voice.
And while SUPs can still occur, many communities have embraced conditional zoning as a less cumbersome way to work with developers on site-specific property plans that don’t fit neatly into existing rules. Plus, when conditional zoning comes to a planning board (often the initial step) or council for a vote, anyone can speak and offer their opinion.
“It’s a much more transparent procedure and process for the public, and it also allows the board to educate themselves outside of the hearing so that it’s not just based on what the testimony is at the hearing,” Karen says.
But even if a community allows conditional zoning, having well-crafted ordinances as a foundation for property rules is vital. Governing boards are not always experts in community design, so having regulations that reflect the community’s long-term interests is vital.
“You need to start with well-crafted ordinances that help community leaders make those judgment calls in a way that creates good outcomes,” said Jay McLeod, AICP, Director of Community Planning at WithersRavenel. “That requires professional expertise.”
Often, that expertise can extend to town planners or employees who examine ordinances and conditional zoning proposals to assure that they fit in with town goals and provide development that the town wants to see and encourage.
Brendie also emphasized the importance of crafting ordinances, zoning, and conditional agreements that are realistic to land developers and engineers.
“We have to talk to the people that have to design these developments,” she said. “So we check with engineers, maybe with landscape architects: Is this doable? We want to make sure that we’re not offering things that we can’t deliver.”
Ultimately, WithersRavenel has helped towns develop and adjust their zoning rules over time, while we have also worked with developers on creating conditional zoning plans specific to sites. Our ultimate goal is always to serve our client and work collaboratively to attempt to create win-win situations for all parties.
“We can craft your ordinance to protect your town, but we can also work with you as a developer to make sure that your conditional zoning meets with the town’s requirements,” Karen said.
Do you want to put WithersRavenel’s Planning Team to work in your community? Contact Director of Community Planning Jay McLeod at 919-238-0422 or jmcleod@withersravenel.com.