Bill in N.C. Senate would prohibit some local governments’ building standards

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RALEIGH – A bill passed in 2013 by the N.C. House of Representatives prohibiting local governments from imposing aesthetic design standards on homebuilders is eligible to be brought back up in the Senate for consideration this session.

But one of the bill’s primary sponsors said he had no idea if that would happen.

As the May 14 start of the N.C. General Assembly‘s short session looms, House Bill 150 is stuck in the Senate’s rules and operations committee.

Rep. Bill Brawley, R-Matthews, who co-sponsored the House bill, said the bill’s chances to “run in the Senate” this term remained a mystery at this point.

“Is it going to come out this session?” Brawley said. “Today, I have no idea.”

Proponents say it reiterates existing limits in the state constitution and statutes on the zoning powers cities, towns and counties have over builders of one- and two-family residences.

The bill was passed by an overwhelming majority of the lower chamber of the legislature in the early days of 2013’s session, by a 98-18 vote.

It was successfully introduced into the Senate last summer, but wound up being shuffled from the rules committee to the commerce committee, and then back to rules, where it languished for three months until the session ended.

Brawley declined to speculate why.

Sen. Tom Apodaca, R-Hendersonville, chairman of the Senate rules committee, did not return calls and emails seeking comment.

Proponents of the bill, including the N.C. Home Builders Association and N.C. Association of Realtors, say that many local governments in the state illegally regulate home features such as bedroom placement, exterior paint colors, number of kitchens and garage-door designs. The regulations, they say, raise prices, hurt their businesses and the economy, and limit homebuyers’ choices.

The bill’s backers cite the N.C. Constitution’s clause saying that local governments cannot exercise powers that are not expressly given to them by the legislature.

And they cite court precedents, in particular the 2012 N.C. Supreme Court’s majority opinion in Lanvale Properties v. Cabarrus County. The court ruled the county had no land-use authority beyond what the state explicitly granted.

“It’s just not a policy option for local governments,” said Rep. Rick Glazier, D-Fayetteville, an attorney and law professor who said he wasn’t sure if he supported Brawley’s bill until he read the case law. “The bill is correct. That option wasforeclosed on them.”

On the other side of the issue stands the N.C. League of Municipalities.

The group argues that local aesthetic regulations protect existing homeowners’ property values, particularly in partly built, abandoned subdivisions taken over by other builders.

Huntersville Mayor Jill Swain spoke out against the bill at a Senate subcommittee hearing last year, saying that her town had relaxed some setback and driveway regulations in exchange for imposing some aesthetic standards to keep housing styles consistent.

Raleigh Mayor Nancy McFarlane told the committee that controlling the placement of bedrooms and bathrooms on floor plans helps keep rooming houses out of single-family and duplex neighborhoods.

Some of those who back HB 150 say it does not go far enough because it lacks any enforcement mechanism or punishment for violations.

Brawley admitted that builders would still have to sue local governments to get legal relief under his bill. And he acknowledged that builders are loath to bring lawsuits because they are expensive and time consuming and lose builders good will in the communities where they work.

“I understand that frustration,” Brawley said. “I hope that after we clarify the intent of what the (existing) laws are, we would not have to continue to take actions. This is what the law has always been. We’re just asking them to obey the law as it has existed since the 1950s.”

The bill would allow local zoning authorities to apply aesthetic standards in cases involving local, state or federal historic districts or structures; manufactured housing; safety-related issues; or conditions imposed by the National Flood Insurance Program.

And the bill would not prevent private homeowners associations from imposing their own aesthetic standards.

Brawley noted that his bill has lost one of its Senate champions since last summer. Former Sen. Dan Clodfelter, a Mecklenburg County Democrat who introduced a Senate bill almost identical to HB 150, is now the mayor of Charlotte.

In that position, Clodfelter is on the other side of the state-municipal fence, but could not be reached in time for this story about whether his stance had changed.

“Yeah, I’ve thought about that,” said Brawley, who again declined to speculate.