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Violations, Rezoning and Getting your Project Started: What Winston-Salem Businesses Need to Know

U.S. Supreme Court Justice Thurgood Marshall noted that zoning may be “the most essential function performed by local government, for it is one of the primary means by which we protect that sometimes difficult to define concept of quality of life.”

Every piece of property in Winston-Salem and Forsyth County is “protected” by zoning. Your business, your home, your place of worship. Every place.

Businesses, residents, elected officials and civil servants may legitimately pay attention to, and sometimes control, what’s going on next door, down the street and in your community. Business and citizens may not know all the rules, but know that there shouldn’t be a skyscraper on the property line (except maybe downtown), a salvage yard in a residential zone, or an adult use next to an elementary school. Proper zoning may improve quality of life and property values. 

At the same time, the bad news is that neighbors and officials have a legitimate interest in others’ property and we may be “protected” from doing things on our own property, which, we may think, don’t hurt a soul. That fine, new accessory structure, for example, may be a foot too close to your neighbor, 6-inches too tall, in a flood plain, or intended for purposes legal only in a different zone. And your new, fancy, flashing sign guaranteed to bring in customers?  Well, you didn’t get a permit, it’s too large and it can’t change messages except every so often.

Complaint-driven Violations

While potential violations may be caught in the planning stage—did you know that every property should have a zoning permit?—zoning enforcement in Winston-Salem and Forsyth County is mostly complaint-driven. Inspectors do not drive around looking for potential violations—there are only four inspectors to cover nearly the entire county. However, when they receive a complaint, anonymously or otherwise, they are obligated to investigate and enforce a weighty volume titled the “Winston-Salem/Forsyth County Unified Development Ordinances” (UDO). Other local municipalities have similar ordinances. The UDO describes 16 different residential zoning districts, 13 commercial districts, 3 industrial districts, 3 institutional and mixed used districts, and 7 assorted overlay and special purpose zoning districts (historic, conservation, airport, etc.). Most of these districts may also be “special” or “limited” use districts. Certain uses further require a quasi-judicial (under oath) hearing.

The UDO is technical and subject to interpretation, and such interpretations can be appealed. The goal is usually compliance, not punishment. Sometimes compliance takes time, and if the alleged violator cooperates in good faith, a grace period will often be allowed before more serious enforcement ensues.

Of course it’s irritating, and potentially expensive, to be the subject of an anonymous complaint about something you may consider trivial. It’s not unheard of for zoning enforcement to be called as the result of a business or personal feud or by an elected official who has heard from a constituent or who just doesn’t appreciate what you are doing.

In one anonymous complaint matter I handled, staff was very helpful and ultimately concluded that there was no zoning violation. But the process was time-consuming and burdensome. What does not work in reacting to a violation notice is to point out all the other properties doing the same thing … “why don’t you go after them?” Inspectors will investigate others if you register a complaint, but that generally doesn’t improve your own situation.       

Rezoning

Businesses and citizens more frequently get involved in filing for or opposing a rezoning. What is a good citizen or corporate pillar to do when faced with a contentious land use issue?  

The first thing is to know where to find the rules and plans, get at least a general idea of how they apply to the property in question and ask staff (or your attorney) for an initial interpretation.

The Winston-Salem-Forsyth County Planning Board’s official comprehensive plan, required by state law is called the 2001 Legacy Plan; the most recently updated version is Legacy 2030. Area Plans, adopted by city council or county commissioners after planning outreach and citizen input, cover smaller areas—they do not change zoning but serve as a guide for zoning and planning decisions, offering some predictability to developers and neighborhoods. 

Despite best efforts by Planning staff, input on big picture planning—meaning comprehensive and area plans—is often provided primarily by the same interested parties. Concerned citizens and small businesses may not have the time and may not discover what’s in an area plan until the adopted plan proves an obstacle or promotes a proposal they don’t like. Participants in a visioning/planning process often have wonderful ideas, but those ideas may not be practical and can, for example, recommend community uses for other’s private property (“that large commercial/industrial property could make a nice park”). It’s best to participate in the Area Plan process from the beginning.

A potentially contentious rezoning should be preceded by neighborhood outreach, including a neighborhood meeting. This may soon be required in Winston-Salem. Even if not required, the first question an applicant may get from even a quasi-judicial board is, have you met with the neighbors? The application may be stopped cold if the answer is “no.”

Get Your Project Started off Right

Meet with the neighbors, or at least neighborhood leaders, before rumors start circulating. Once the wrong idea gets out, it’s hard to change hearts and minds. Most zoning decisions are legislative, meaning that elected officials have wide leeway on how they can vote and appeal paths are limited. Even if a zoning project is supported by Legacy, the Area Plan, planning staff and the Planning Board, it can be hard for elected or appointed bodies to vote against strong opposition.

If you are the developer, meet early with elected officials. It’s important to make the effort and advise them of the project. The first thing they hear about a project should not be from a concerned neighbor. Explain the benefits, including tax and job growth, and ask for their thoughts.  

Before one of my first zoning hearings, I was dressed down, in front of my client, by an elected official for failing to make contact in a timely fashion. Properly chastened, all was sweetness and light at the public hearing, but it’s a lesson to remember.

There are usually at least a few items on which neighbors and developers can compromise: setbacks, bufferyards, lighting, entrances, exits, etc. And sometimes settlement is preferable to eliminate potential surprises. I once settled a case right before the hearing and the rezoning passed without objection. Walking out with the lead opponent, I learned that, if the case had not settled, we both thought a particular board member was going to vote our way.

Finally, zoning and land use ordinances vary widely across North Carolina. Some are strict, while some counties have no zoning at all but nevertheless have development requirements and restrictions. It’s to your benefit to engage staff and learn the local ordinances, generally available online or through visiting the planning office, as early in the process as possible.

 

Meet the Author
Donald M. Nielsen is an attorney at the Winston-Salem law firm of Bell, Davis & Pitt, P.A. His primary areas of practice are environmental law, zoning, and local government and administrative law. Don has served as chairman of the Historic Resources Commission, a member of the Forsyth County Environmental Affairs Board, president of the Forsyth County Genealogical Society and president of his Kiwanis Club.

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