by Collin W. Brown and John H. Carmichael of K&L Gates
This article was provided by K&L Gates, a 2010 ULI CharlottePlatinum Sponsor.

Charlotte’s post-construction controls ordinance (“PCCO”) went into effect July 1, 2008.  The PCCO is directed at construction-related and post-construction stormwater runoff and is intended to improve water quality and stream conditions. It requires developers and property owners to set aside open space and install measures that will filter and slow stormwater runoff before it leaves a property.

The open space requirements and on-site best-management practices required by the ordinance reduce the amount of developable land and significantly increase development costs.  The PCCO contains several exemptions, including one for properties with conditional zoning plans approved prior to the adoption of the PCCO.  However, property owners should be aware that this exemption has two expiration dates, and one is right around the corner.           

According to the PCCO, conditional zoning plans approved before July 1, 2008 may exempt a property from compliance with the PCCO, but only if development plans are submitted by a certain date.  For conditional rezonings approved before November 15, 1999, development plans must be submitted “prior to 2 years from the effective date” of the PCCO.  Thus, plans must be submitted before July 1, 2010 to take advantage of the exemption.  For conditional rezonings approved after November 15, 1999, development plans must be submitted “prior to 5 years from the effective date” of the PCCO.  Thus, plans must be submitted before June 30, 2013 to take advantage of the exemption. 

Therefore, any property with a conditional zoning plan approved before November 15, 1999 will become subject to some of the requirements of the PCCO if development plans are not filed before July 1, 2010.  Property owners that do not meet that deadline will not be required to satisfy phosphorus removal, natural-area and buffer requirements that were not in place at the time of the zoning approval, but compliance with the PCCO’s other water quality measures will be required.

The PCCO was drafted and adopted during the real estate heyday of the mid-2000’s.  At that time, it may have seemed reasonable to give property owners only a two-year grace period before the PCCO would apply to conditional rezoning plans approved prior to November 15, 1999.  Unfortunately, the real estate world was turned on its head around the time the PCCO went into effect, and few property owners have resources available to fund the planning and engineering work necessary to submit development plans before the approaching deadline.  Thus, the untimely expiration of this PCCO exemption could be an unfortunate setback for an industry trying get back on its feet.

An interesting question is whether a recently adopted North Carolina law could extend the PCCO exemption periods for approved conditional zoning plans.  The North Carolina Permit Extension Act (the “Act”), provides that “[f]or any development approval that is current and valid at any point during the period beginning January 1, 2008, and ending December 31, 2010, the running of the period of the development approval…is suspended during the period beginning January 1, 2008, and ending December 31, 2010.”  The Act broadly defines “development approval” to include essentially any approval for the development of land issued by the State, or any unit of local government, regardless of the form of the approval.  Therefore, if it is determined that the Act does extend the PCCO exemption periods for approved conditional zoning plans, property owners with conditional zoning plans approved before November 15, 1999 will have until December 31, 2012, to file development plans and preserve their PCCO exemptions.  However, it would be exceedingly risky for any landowner to rely upon such an argument.  It is unclear whether the Act applies to PCCO exemptions, and to our knowledge the City of Charlotte has not considered this issue.  Accordingly, landowners should make every effort to take the action necessary to protect themselves before the exemption expires.

About the Authors
Collin W. Brown is an associate with K&L Gates and focuses his practice on land use and zoning.  He has experience in assisting clients to obtain approval on commercial and residential development projects.

John H. Carmichael is a partner with K&L Gates and focuses his practice on land use and zoning, commercial real estate, and land use litigation.

This publication is for informational purposes and does not contain or convey legal advice. For more information about K&L Gates, visit www.klgates.com