North Carolina Project DevelopmentOur community continues to experience rapid growth and change in the real estate construction and development industry. HSLC proudly represents commercial and residential clients in real estate acquisition and development, financing, foreclosure and issues arising out of foreclosure, title work, land use and zoning, easements, and other types of real estate litigation. Developers face particular legal challenges in real estate, land use and environmental matters, as well as general business and litigation issues. Our representation of purchasers, sellers, landlords, homeowners associations, architects, engineers, general contractors, subcontractors, material suppliers and rental equipment providers enables us to keep our clients informed and respond quickly to changes in the development industry. Our firm has established relationships with governmental organizations to assist with administrative and regulatory issues that often arise in real estate development. HSLC assists our clients in the review and drafting of contracts, bidding documents, and other types of agreements such as purchase agreements and letters of intent. HSLC has the multi-disciplinary expertise to partner successfully with developer clients towards a more profitable project with fewer legal issues. Large scale development of land can have a major impact on the community and the economy. New developments bring additional growth, jobs and long-term tax base to communities. No matter the size or complexity of your project, our firm brings an understanding of the transactional aspects of development, as well as the real world understanding of litigation and risk assessment that can assist developers with understanding and analyzing return on investment. Our firm handles acquisitions and sales on behalf of purchasers and sellers of land, for the purpose of residential, commercial and multifamily housing complexes. We assist with lease drafting and negotiations on behalf of landlords and tenants, restaurants, and industrial and manufacturing facilities, drafting and negotiating construction contracts on behalf of property owners, general contractors, construction management firms, landlords, and tenants. Whether your project has zoning regulations to deal with, land title issues, or land use matters, our understanding of your industry can help you seize opportunities and overcome complex obstacles.
Frequently Asked Questions
1. Can I make improvements to property if it is located in a Flood Zone?
Any activity within a designated “Special Flood Hazard Area” (commonly referred to as the “100 Year Flood Zone” or “Floodway”) requires a Floodplain Development Permit approved by the Floodplain Administrator, generally the local Planning Director. This includes grading, filling, construction of buildings, and even the installation of permanent landscaping.
Proposed projects are reviewed and conditions are imposed on any permits issued to reduce the potential for damage from floodwater. All structures proposed within the floodplain will need flood-proofing or elevation certificates from professional engineers or surveyors. Any development within the Floodway (the “non-encroachment area”) must be certified by an engineer to cause zero rise in the base flood elevation.
2. What is stormwater?
Stormwater is rain or snow melt resulting in excess water that cannot infiltrate into the soil (or be absorbed by vegetation) which flows through pipes, gutters, channels or over land. It washes pollutants like soil, litter, leaked automotive fluids, fertilizers, detergents and bacteria into our creeks, rivers, lakes and oceans. In heavy storms, it can cause flash flooding and exacerbate drainage problems.
3. Why does stormwater need to be managed?
Stormwater runoff is now the leading source of water pollution in our country. It can increase erosion and formation of gullies in upland areas, increase in-stream scour and erosion, increase sediment deposition in lower areas, degrade water quality, create peak storm flows that are higher and faster, and cause more frequent flooding. In urban areas that have significant amounts of impervious surfaces, and in areas that are cleared of vegetation, the effects of stormwater runoff are much greater than in areas where soil and vegetation can absorb excess water.
4. Do builders have to control erosion and sediment on their construction sites in Wake County?
Yes. Disturbances of less than one acre must have a driveway with a minimum 10-foot-wide by 30-foot-long gravel construction pad or equal, as well as a silt fence of a type acceptable to the Wake County Sedimentation and Erosion Control Section. Seeding and mulching of any applicable disturbed area is also required. Areas within 25 feet of the edge of pavement or gravel of the road must be stabilized before the issuance of a certificate of occupancy.
Wake County operates an erosion prevention program that aims to prevent sediment from leaving a construction site and contaminating Wake County’s natural environment. Wake County manages erosion control for all unincorporated areas of the County and the following municipalities: Fuquay-Varina, Garner, Knightdale, Morrisville, Rolesville, Wendell and Zebulon. All single-family home construction sites in Wake County’s jurisdiction are required to have adequate erosion control install prior to the footing inspection.
5. What is the purpose of a maintenance bond?
To provide a process whereby Developers can provide a Town or County with a monetary bond as security in lieu of physical works remaining to be completed on a development. Such bonds are retained for a time determined by the administrative agency and are refunded to Developers following the satisfactory completion of Development works and/or following the completion of a works maintenance period.
6. Are there laws that pertain to drainage?
North Carolina law provides that the person on the lower estate must receive and pass the water from the higher estate(s). Also, specific statutes prohibit the blockage of streams, drainageways and easements that remove water from higher elevations. For more specific information on the statutes go to www.ncga.state.nc.us.
7. What is an easement?
An easement is a non-possessory interest in the land of another. An easement is created when a land owner grants a right to use his property to another. Common types of easements include driveway easements, ingress and egress easements, utility easements, right-of-way easements, and sewer easements. North Carolina recognizes two types of easements. First, easements appurtenant benefit adjoining land, no matter who owns the adjoining land. An easement appurtenant attaches to and passes with the land. An example of an easement appurtenant is one where the seller of a landlocked parcel of land conveys a right of ingress and egress to the purchaser. The second, easements in gross, benefits a specific individual or business entity. Typically an easement in gross granted to an individual expires upon his death.
North Carolina law recognizes five methods of creating easements: Express grant, implied easement, easement by prescription, easement by condemnation and easement by express reservation.
The best way to avoid easement disputes is to survey the property and perform a title search prior to purchasing a property.
8. What environmental regulations are applicable to the development of land?
There is a large body of law, including federal and state laws and regulations applicable to the environmental impacts that development may have on land. To name a few, there is CERCLA, or the Comprehensive Response, Compensation, and Liability Act providing federal cleanup of contaminated sites; UST, or the Federal and North Carolina Underground Storage Tank Regulations; CWA, or Federal Clean Water Act, North Carolina Water and Air Resources Act; NEPA, or National Environmental Policy Act of 1969, which is a decision-making procedural statute that requires federal agencies to consider environmental impacts and alternatives associated with project planning; SEPA, or the North Carolina Environmental Policy Act of 1971, similar to NEPA; among many others.
9. What is “Green Construction”?
“Green building” or sustainable design and construction is the opportunity to use resources more efficiently, while creating healthier and more energy-efficient homes. Although there is no magic formula, success comes in the form of leaving a lighter footprint on the environment through conservation of resources, while at the same time balancing energy-efficient, cost-effective, low-maintenance products for our construction needs. In other words, green building design involves finding the delicate balance between homebuilding and the sustainable environment. The American Society of Testing and Materials (ASTM) set a measurable definition with ASTM Standard E2114-06a, the United States Green Building Council set up a LEED system which is widely recognized, and the International Code Council published a model International Green Construction (IgCC). The North Carolina legislature defined an objective with N.G. Gen. Stat § 143-135.35
10. Are the Department of Environmental and Natural Resources’ rules and regulations reviewed or changed over time?
N.C. Gen. Stat. §150B-21.3A, adopted in 2013, requires state agencies to review existing rules every 10 years. The Department of Environment and Natural Resources’ rules are located by subchapters in Title 15A of the NC Administrative Code. The Department’s rules will be reviewed on a schedule established by the Rules Review Commission. As rules become available for public comment, links will be available on their website. The Department is required to evaluate each of the existing rules and make an initial determination from one of these three classifications:
- Necessary with substantive public interest – the agency has received public comment on the rule within the past two years or the rule affects the property interest of the regulated public, and the agency knows or suspects that any person may object to the rule.
- Necessary without substantive public interest – the agency determines that the rule is needed, and the rule has not had public comment in the last two years. This category includes rules that identify information that is readily available to the public, such as an address or telephone number.
- Unnecessary – the agency determines that the rule is obsolete, redundant or otherwise not needed.
If you have a legal issue which may require the assistance of an attorney, please contact the lawyers at Hannah Sheridan Loughridge & Cochran, LLP at 919-859-6840.