(a) Purpose. Conditional zoning is established to provide for flexibility in the development of property while ensuring that the development is compatible with neighboring uses. Conditional zoning affords a degree of certainty in land use decisions not possible when rezoning to a general use district. Additional conditions, standards and regulations are attached to a proposed development to ensure that the activities and operations are compatible with the surrounding uses and with applicable adopted plans in accordance with the requirements of this section.
(b) Conditional zoning districts. Conditional zoning is available to any of the general zoning classifications enumerated in this chapter, except for those that require a master plan as part of the application (e.g. Urban Village). Expansion zoning districts are only allowed as conditional zoning districts for Level III projects and as otherwise indicated in the Table of Permitted Uses and this UDO. Applicants for Level III projects shall select the most applicable expansion district based on the proposed use(s). The conditional zoning designation shall be indicated on all zoning maps and other official documents with the suffix, "CZ" (e.g. RM-8 CZ; IND CZ; COM EXP CZ).
(c) General requirements. The following provision shall apply in the administration of conditional zoning.
(1) A conditional zoning application shall be considered only upon submittal of a complete application by the owner of the affected property or a duly authorized representative of the property owner.
(2) Development plans shall be prepared by a licensed design professional and shall be prepared in accordance with the Unified Development Ordinance (UDO), the City of Asheville Standard Specifications and Details Manual, other applicable city ordinances, city policies and state law.
(3) All standards and requirements of the corresponding general use zoning district or expansion district shall be met, except to the extent that the conditions imposed by the conditional zoning may be more or less restrictive than the development standards if such conditions comply with the comprehensive plan or other adopted plans, and/or except where the requirements are modified in accordance with subsection 7-7-8(c)(6). A conditional zoning involving an expansion district must meet all standards and requirements of the expansion district.
(4) No uses shall be permitted except those enumerated in the ordinance adopting the conditional zoning.
(5) The conditions agreed upon pursuant to the conditional zoning approval shall be stated in the adopting ordinance and may limit the uses which are permitted on the property. By way of illustration and not limitation, conditions may specify location on the property of the proposed structure(s), the number of dwelling units, the location and extent of supporting facilities such as parking lots, driveways, access streets, and sidewalks, the location and extent of landscaping, buffer areas and open space, the timing of development, the height of structures, the design and orientation of structures, the location and extent of rights-of-way and other areas to be dedicated for public purposes, and other such matters as may be identified as appropriate for the proposed development.
(6) Minor modifications to the approved site plan may be reviewed and approved administratively provided that they do not involve a change in permitted uses, changes in overall density or substantial changes to the configuration of the development that affect the operation or impacts of the development. Any other modification of the conditions and standards in a conditional zoning district shall be approved by the city council following this review process as an amendment to the conditional zoning ordinance and may be referred to the technical review committee as appropriate. The planning and urban design director shall in every case have the discretion to decline to exercise the power to approve minor modifications as provided for herein, and may require the applicant to seek an amendment to the conditional zoning ordinance.
(7) When adopting or rejecting any zoning amendment, the city council shall also approve a statement describing whether its action is consistent with an adopted comprehensive plan and any other officially adopted plans that are applicable, and briefly explain why the council considers the action taken to be reasonable and in the public interest. That statement is not subject to judicial review.
(8) Any violation of a provision of a conditional zoning ordinance shall be treated the same as any other violation of this chapter and shall be subject to the same remedies and penalties as any other such violation.
(9) If no action has been taken to obtain a zoning permit or otherwise begin development of the property in accordance with the conditional zoning ordinance within 24 months of its approval by city council, the planning and urban design director may initiate appropriate action to rezone the affected property to any other classification. The conditional zoning ordinance may provide a specific duration of the approval. Appropriate approval conditions may be added to guarantee site maintenance and security. Nothing herein shall be construed to extend any time limitations prescribed by statute or by other ordinances in this chapter.
(10) If the use(s) commenced pursuant to a conditional zoning ordinance is abandoned or discontinued as described in article 17 the planning and urban design director may initiate appropriate action to rezone the affected property to any other classification or the applicant may seek an amendment to the conditional zoning approval by following the process outlined in this chapter.
(11) No variances or special use permits may be issued for developments on property that is subject to a conditional zoning ordinance.
(d) Pre-application procedure.
(1) Pre-application conference. All applicants for conditional zoning are required to schedule and attend a pre-application conference with city staff prior to submittal of the complete application. These conferences allows the applicant and staff an opportunity to discuss the rezoning request, the requirements for completing the review schedule, contact persons for services and permits, and information regarding site plans, landscaping, and development requirements.
The staff can also determine if any special reviews will be required, such as reviews by the historic resources commission, the tree commission, Asheville Area Riverfront Redevelopment Commission, or downtown commission.
(2) Neighborhood meeting. The prospective applicant shall meet with the surrounding community during the pre-application phase. No application for conditional zoning shall be accepted for review by the city unless the following criteria are met:
a. A community meeting shall be held with the surrounding residents of the proposed development site at least 14 days but not more than four months prior to any application submission to the city. This meeting shall follow the principals outlined in the “Neighborhood and Community Meeting Guide for Development” (Guide) as maintained by the city.
b. Notification requirements. The meeting shall be advertised as follows:
1. A sign meeting the requirements found in the guide shall be posted on each street frontage of the proposed development site at least 14 days prior to the meeting date; and
2. Mailed notice shall be sent to all physical addresses and property owners within 400 feet of the proposed development site. This notice shall follow the published template provided by the city; and
3. E-mailed notice shall be sent to any neighborhood association or organization on file with the city’s neighborhood services section at least 14 days prior to the meeting date; and
4. The prospective developer or designee shall register the neighborhood meeting with the city on a form provided by the city at least 14 days prior to the meeting date.
c. Evidence of compliance with this section shall be provided to the city on a form provided by the city prior to submittal of any application for Level II development.
(e) Plan submittal. When applying for conditional zoning, the owner shall specify the nature of the proposed development and shall propose conditions to ensure compatibility with the surrounding uses and consistency with adopted plans. Applications for conditional zoning shall be processed, considered, and voted upon using the same procedures and subject to the same requirements as those established in this article for zoning map and zoning text amendments, except as provided below:
(1) Conditional zoning application requirements.
a. A development plan(s) for a proposed project shall be prepared by a licensed design professional and shall be prepared in accordance with the Unified Development Ordinance (UDO), the City of Asheville Standard Details and Specifications Manual, other applicable city ordinances, city policies and state law.
b. A complete application packet containing all information as required by the designated staff shall be submitted according to the published schedule of the technical review committee.
c. The application must also include a notation of the deed number of the subject property(s) with book and page reference as listed with the Buncombe County Register of Deeds.
(2) Review by the technical review committee. The development plan(s) shall be submitted and reviewed by the members of the technical review committee. The development plan(s), recommendations and comments shall be forwarded to the planning and zoning commission unless review by another body is required.
(3) Review by others. If other review bodies are required to consider the application, the project will be forwarded to that body and reviewed according to procedures established for that body before advancing to the planning and zoning commission.
(4) Review by the planning and zoning commission. Following review by the technical review committee and other bodies, as required, the planning and zoning commission shall hold a public hearing on the application for conditional zoning. Notice of the public hearing shall be provided in accordance with the provisions of section 7-5-20 of this chapter. After holding the public hearing, the planning and zoning commission may recommend approval of the application, including recommending conditions for the zoning; recommend denial of the application; or continue the consideration of the application in order to receive further information. If recommending approval or denial of the application, the planning and zoning commission must provide a written recommendation addressing the consistency of the proposal with the comprehensive plan and other adopted plans.
(5) Review by city council. Upon receipt of the recommendations from the planning and zoning commission, the city council shall hold a public hearing on the application for conditional zoning. Notice of the public hearing shall be provided in accordance with the provisions of section 7-5-20 of this chapter and the North Carolina General Statutes.
The city council's consideration of an application for conditional zoning is legislative in nature, and the council may consider any relevant information in its deliberations. Consideration shall be given to adopted land use plans for the area, small area plans, corridor plans, and other land use policy documents, and to surrounding land uses. The council may adopt or not adopt a conditional zoning ordinance, or may continue its consideration of the application as necessary or appropriate.
(6) Conditions. During the adoption of a conditional zoning ordinance, specific conditions may be proposed by the petitioner, city council, planning and zoning commission or city staff, but only those conditions mutually approved by city council and the petitioner may be incorporated into the zoning regulations and permit requirements. Conditions and site-specific standards imposed in a conditional zoning district shall be limited to those that address the conformance of the development and use of the site to city ordinances, an officially adopted comprehensive or other plan and those that address the impacts reasonably expected to be generated by the development or use of the site.
(7) Final review by the technical review committee. Prior to the issuance of any permits, the applicant must submit detailed plans incorporating all conditions to the technical review committee for final review.
(8) Map amendment. Upon adoption of a conditional zoning ordinance, the official zoning map of the City of Asheville shall be amended to add the conditional zoning district. The city clerk shall maintain a book or other official record for conditional zoning ordinances, and each conditional zoning ordinance shall be filed therein. Failure to comply with this provision shall not render the ordinance invalid.
If approved by the city council, no permits may be issued on the subject property until the property owner has recorded the approved plan and conditions pertinent to the specific property at the Buncombe County Register of Deeds, including a notation of the pertinent deed number with book and page reference.
(10) Perpetually binding. The conditional zoning ordinance adopted as provided herein shall be perpetually binding upon the affected property unless subsequently changed or amended as provided for in this chapter.
(11) Legislative review. Conditional zoning ordinances are legislative in nature, and judicial review of conditional zoning ordinances shall be as provided by law.
(Ord. No. 3237, § 1(b), 5-24-05; Ord. No. 3306, §§ 1(h—j), 11-22-05; Ord. No. 3374, §§ 1(t), (u), 7-11-06; Ord. No. 3700, §§ 1a, b, b, 2-10-09; Ord. No. 3709, § 1d, 3-10-09; Ord. No. 4273, § 1, 1-28-14; Ord. No. 4377, § 1, 1-13-15; Ord. No. 4560, § 1h, 2-14-17; Ord. No. 4637, § 1g, 1-9-18; Ord. No. 5020, § 1(d), 6-13-23; Ord. No. 5057, § 1h, 1-23-24)