Development Approval Process Under The UDO
Raleigh’s new Unified Development Ordinance (UDO) was designed to accomplish many important objectives regarding the growth and development of Raleigh, but one of the most important yet difficult to understand was to bring Raleigh’s approval procedures into better alignment with recently adopted state law.
In 2010, the North Carolina Legislature passed a law clarifying what had been implied by court decisions regarding approvals for new development. Under the law, there are only three types of approvals. One type is when the City Council acts to make a change in the law, such as amending the zoning map (rezoning) or changing an ordinance (text change). When the Council acts in this way, it is legislating, and the Council has broad discretion so long as it does not act in an arbitrary manner. Citizens wanting to participate in a legislative decision can speak at hearings, write letters, lobby council members, and otherwise express their opinions.
The second type of approval is administrative. City Council action is not required for this type of approval. In an administrative decision, professional staff checks a development proposal against objective standards contained within the code. Although staff has some power of interpretation, it is limited. Staff is both compelled to approve proposals that meet the code, as well as barred from approving proposals that don’t meet the code. Affected parties who believe that staff made an error in interpreting or applying the code can appeal these decisions to the City’s Board of Adjustment, or eventually to court.
These two types of approvals—making laws and then administering the laws—are relatively easy to understand. However, a third type of approval has been created to provide an opportunity for imposing standards on development that require discretion and judgment in their application. Such standards must be administered by an elected or appointed body in a public hearing. Such decisions go by the cumbersome name of “quasi-judicial.”
In a legislative meeting, any and all input from the public is admissible. As is implied by the name, a quasi-judicial hearing requires the approving body to follow procedures and rules of evidence similar to a court proceeding. This type of hearing evolved as a result of early court cases that created guidelines for how a land use decision meets the requirement under the United States Constitution for due process of law. In 2010 aspects of these earlier court cases were codified into statutory law by the General Assembly. Consequently quasi-judicial hearings for land use matters must now comply with both court decisions and the 2010 statutory changes passed by the North Carolina legislature.
A quasi-judicial hearing puts significant guardrails on public participation and makes such participation more time consuming, difficult, and expensive for both applicants and opponents. For example, citizens concerned about traffic created by a new development cannot testify about traffic safety at the hearing—they must hire a professional engineer. They cannot testify on property values—they must hire a licensed appraiser. Any testimony which does not meet the legal test of “substantial, material, and competent” cannot be considered when making a decision to approve or deny an application.
The public and the developer and its agents cannot communicate in any fashion with any member of the elected governing board or the appointed board hearing the quasi-judicial matter. A proposal meeting the required findings in the code must be approved, no matter how unpopular. For these reasons, such hearings are often frustrating for the public.
When a code standard is objective, there is little room for argument. The applicant must meet the standards or seek a variance from the Board of Adjustment. When a code standard is applied in a quasi-judicial setting, the deciding body must take in expert testimony and draw conclusions, and the party with the most and best experts is at an advantage. Clearly, when a desired outcome can be obtained through regulations administered by staff, it is better for all involved. An expensive and frustrating public process is avoided, and the City and public are much more likely to see the desired standard implemented.
Raleigh’s old development code had relatively weak standards for development and was putting the City in the position of relying more and more on quasi-judicial hearings. The UDO takes many of the objectives contained in the old approval procedures and hard-codes them into the ordinance language, so that they can be applied by staff uniformly. Instead of debating traffic impacts at a public hearing, for example, applicants can be required to submit a traffic analysis and propose mitigation for impacts over certain thresholds set forth in the UDO. Blank walls, transparency, screening of parking decks, and building height are all design standards new to the UDO.
By shifting emphasis to staff approvals, it may seem like the public is removed from the development process. In reality, public participation has been shifted to where it can have the greatest and most lasting impact—the legislative arena, where the zoning map is amended and the code standards enacted. The UDO is a living document, and is frequently amended as new issues arise. City staff works with the public, the Planning Commission, and City Council to craft code standards that will lead to quality development in Raleigh. All interested citizens should get involved in this process through participation in their Citizen Advisory Council, at public meetings, and through contact with their City Council representatives and Planning Commissioners.