North Carolina Conditional Use Zoning Explained

Conditional use zoning is allowed in North Carolina both by court decision and by statute. However, under new North Carolina legislation that became effective on July 1, 2021, "conditional use zoning" is now just called "conditional zoning." See N.C. Gen. Stat., § 160D101 et. seq. For this article, we will retain the previous terminology.

Zoning, in general, can be defined as the use of ordinances and regulations by local governments to establish general plans that regulate and limit the use of land within given areas and also regulate and limit buildings and structures that may be located on land within given areas. "Single-family residential" and "manufacturing" zones are examples. Most North Carolina zoning ordinances try to designate consistent uses with various geographic areas -- zoning districts -- but also try to be flexible, allowing a variety of specific defined uses within a zoned area. Often, zoning ordinance will simultaneously list separate uses which are incompatible and not permitted.

Conditional use zoning is a sub-type of zoning allowing the rezoning of certain parcels into a drastically different zoning category based on "conditions." The "conditions" are usually bargained for and agreed to by the parcel owner that is seeking a new zoning classification. In more formal terms, conditional use zoning occurs when a zoning authority "... secures a given property owner's agreement to limit the use of his property to a particular use or to subject his tract to certain restrictions as a precondition to any rezoning." This is how the North Carolina Supreme Court defined conditional use zoning in the case of Chrismon v. Guilford County, 370 SE 2d 579 (NC Supreme Court 1988). Chrismon is the case that first established the legality of conditional use zoning in North Carolina.

The facts in Chrismon provide an excellent example of how conditional use zoning applies in practice. In Chrismon, the landowner in question owned a 5.06-acre parcel that was zoned "A-1 Agricultural" which generally allowed use of land for crop farming, animal husbandry and related agriculture uses such as grain drying and grain storage operations. Importantly, however, the A-1 Agricultural zoning classification did not permit the sale and distribution of the lime, fertilizer, pesticides, and other agricultural chemicals. But, this particular landowner, Paul Chapp, also owned an adjacent 3.18-acre parcel where these agricultural chemical-related activities were allowed because those activities pre-dated the ordinance and were "grandfathered" into the zoning classifications.

In 1980, Clapp began moving some of his agricultural chemical-related activities to the 5.06-acre tract. The neighbors across the street, the Chrismons, objected saying that agricultural chemical-related activities on the 5.06-acre parcel were non-conforming uses on that parcel under the A-1 Agricultural zoning classification.

As a result, Clapp asked the county to rezone both parcels from A-1 Agricultural to "Conditional Use Industrial District" ("CU-M-2"). The condition that Clapp agreed to was that he would limit his use of the parcels to the same uses he had been allowed on the 3.18-acre parcel even though an "M-2" zoning classification would permit an extensive list of other uses on the parcels in question. The North Carolina Supreme Court approved use of conditional use zoning in this circumstance stating that the facts demonstrated the usefulness, benefits and flexibility offered by conditional use zoning. As the court stated:

"By rezoning these tracts CU-M-2, the desired activity becomes a conforming use, but by virtue of the attendant conditions, uses undesirable under these circumstances can be limited or avoided altogether."

The court proceeded to hold that "... that conditional use zoning, when carried out properly, is an approved practice in North Carolina... [W]e are persuaded that the practice, when properly implemented, will add a valuable and desirable flexibility to the planning efforts of local authorities throughout our state." As noted above, conditional use zoning has also been approved by the North Carolina Legislature. See N.C. Gen. Stat., §§ 153A-342 and 160-382.

That being said, the North Carolina Supreme Court also said that, in order to be legal and proper, conditional use zoning must be:

• Reasonable
• Not arbitrary
• Not unduly discriminatory and
• In the public interest

The Chrismon court held that these requirements had been met for the rezoning of Chapp’s parcels to CU-M-2. The rezoning was limited to a specific set of land uses that had been ongoing for years, the parcels in question were not arbitrarily rezoned and the larger community both supported the rezoning and would benefit from allowing the new limited land usage.

For more information, and to schedule a confidential consultation with experienced and dedicated land use and zoning attorneys in Charlotte, contact Arnold & Smith, PLLC. Use our “Contact” page or give us a call at 704-370-2828. We handle land use, zoning and condemnation legal matters in Mecklenburg County and elsewhere in North Carolina. We have offices in Charlotte, Lake Norman, and Union County.