Posted by: Patricia Salkin | January 31, 2008

N.C. Appeals Court Finds No New Notice Required for Rezoning Where Alteration of Original Proposal was Insubstantial

As noted in an earlier post on this blog, the procedural notice requirements for zoning actions are often attacked particularly when the initial hearing continues for future dates, and where the reviewing board imposes conditions altering in some way the initial proposal. Such was the situation in a recent North Carolina case where the plaintiffs alleged, among other things, that all of the meetings were not properly noticed, and where there was a reconsideration to a proposed rezoning, the board failed to provide new notice. 

The Appeals Court stated that the general requirement of notice and public hearing prior to the adoption or amending of a zoning ordinance is subject to modification depending upon the substantiality of change to be made following reconsideration. The Court noted that while ordinarily, if the ordinance or amendment as finally adopted contains changes that are substantially different from what was originally proposed, in essence amounting to a new proposal from what was originally advertised, then there must be additional notice and a new opportunity to be heard.  Where, however, the alteration is insubstantial, no further notice or hearing is required.  Furthermore, the Court said that no additional notice and hearing is typically required where the initial notice was broad enough to indicate the possibility of substantial change, and where such changes are made resulting from objections, debate and discussion at the properly noticed initial hearing. Lastly, the Court said that where an ordinance is being reconsidered for purposes of confirming the ordinance or for making insubstantial modifications in the adopted ordinance, no further notice and hearing is required since the Council has already had the benefit of the public’s viewpoints after the first properly noticed hearing. 

In the present case, the Court noted that the plaintiffs had failed to put forth evidence that showed either a substantial change in the proposed ordinance or that they were not informed as to when additional meetings would be held.  The plaintiffs further complained that the sign posted in accordance with state statute, contained only the date of the initial public hearing, and not subsequent hearings.  The Court noted that under the terms of the local zoning ordinance and state statute, which required the sign to be posted, there are no provisions regarding the content of the sign, and the Court said that the purpose of the notice by sign is to let people know about a proposed action and the geographic location of the subject property.  It was noted that the newspaper notice contained more information about meeting date(s). With respect to the plaintiffs’ claim that some of them did not receive the required notice by mail, the Court indicated that the zoning technician certified that she mailed the notices, and that the plaintiffs failed to carry their burden under the statute to show that the notices were not received as a result of fraudulent action.  

The Appeals Court upheld the summary judgment motion in favor of the municipality.  

 Rakestraw v. Town of Knightdale, 2008 WL 131942 (N.C. App. 11/15/2008).  

The opinion can also be accessed at: http://www.aoc.state.nc.us/www/public/coa/opinions/2008/070866-1.htm


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