(a) Purpose. The purpose of this section is to implement the provisions of N.C. Gen. Stat. sec. 160A-385.1 pursuant to which a statutory zoning vested right is established upon the approval of a site specific development plan.
(b) Approving authority. The Asheville City Council shall be the approving authority for zoning vested rights.
(c) Establishment of a zoning vested right.
(1) A zoning vested right shall be deemed established upon the valid approval, or conditional approval, by the Asheville City Council of a site specific development plan, following notice and public hearing.
(2) The Asheville City Council may approve a site specific development plan upon such terms and conditions as may reasonably be necessary to protect the public health, safety, and welfare.
(3) A site specific development plan shall be deemed approved upon the effective date of the Asheville City Council's action.
(4) Notwithstanding the above information, approval of a site specific development plan with the condition that a variance be obtained shall not confer a zoning vested right unless and until the necessary variance is obtained.
(5) The establishment of a zoning vested right shall not preclude the application of overlay zoning that imposes additional requirements but does not affect the allowable type or intensity of use, or ordinances or regulations that are general in nature and are applicable to all property subject to land- use regulation by the City of Asheville, including, but not limited to, building, fire, plumbing, electrical, and mechanical codes. Otherwise applicable new or amended regulations shall become effective with respect to property that is subject to a site specific development plan upon the expiration or termination of the vested right in accordance with this section.
(6) A zoning vested right is not a personal right, but shall attach to and run with the applicable property. After approval of a site specific development plan, all successors to the original landowner shall be entitled to exercise such right while applicable.
(d) Approval procedures and approving authority.
(1) Except as otherwise provided in this section, an application for site specific development plan approval shall be processed in accordance with the procedures established by ordinance and shall be considered by the Asheville City Council for the specific type of zoning or land use permit or approval for which application is made.
(2) Notwithstanding the provisions referenced above, if the authority to issue a particular zoning or land use permit or approval has been delegated by ordinance to a board, committee, or administrative official other than the Asheville City Council or the board of adjustment of the City of Asheville, in order to obtain a zoning vested right, the applicant must request in writing at the time of application that the application be considered and acted on by the Asheville City Council, following notice and public hearing as provided in N.C. Gen. Stat. sec. 160A-364.
(3) In order for a zoning vested right to be established upon approval of a site specific development plan, the applicant must indicate at the time of application, on a form to be provided by the City of Asheville, that a zoning vested right is being sought.
(4) Each map, plat, site plan, or other document evidencing a site specific development plan shall contain the following notation: "Approval of this plan establishes a zoning vested right under N.C. Gen. Stat. sec. 160A-385.1. Unless terminated at an earlier date, the zoning vested right shall be valid until (date)."
(5) Following approval or conditional approval of a site specific development plan, nothing in this section shall exempt such a plan from subsequent reviews and approvals to ensure compliance with the terms and conditions of the original approval, provided that such reviews and approvals are not inconsistent with the original approval.
(6) Nothing in this section shall prohibit the revocation of the original approval or other remedies for failure to comply with applicable terms and conditions of the approval or this chapter.
(e) Duration.
(1) A zoning right that has been vested as provided in this section shall remain vested for a period of two years. This vesting shall not be extended by any amendments or modifications to a site specific development plan unless expressly provided by the Asheville City Council at the time the amendment or modification is approved.
(2) Upon issuance of a building permit, the expiration provisions of N.C. Gen. Stat. sec. 160A-422 shall apply, except that a building permit shall not expire or be revoked because of the running of time while a zoning vested right under this section is outstanding.
(3) A zoning permit, conditional use permit, or approval of a preliminary plat for a proposed subdivision shall not expire or be revoked because of the running of time while a zoning vested right under this section is outstanding.
(f) Termination. A zoning right that has been vested as provided in this section shall terminate:
(1) At the end of the applicable vesting period with respect to buildings and uses for which no valid building permit applications have been filed;
(2) With the written consent of the affected landowner;
(3) Upon findings by the Asheville City Council, by ordinance after notice and a public hearing, that natural or manmade hazards on or in the immediate vicinity of the property, if uncorrected, would pose a serious threat to the public health, safety, and welfare if the project were to proceed as contemplated in the site specific development plan;
(4) Upon payment to the affected landowner of compensation for all costs, expenses, and other losses incurred by the landowner, including, but not limited to, all fees paid in consideration of financing, and all architectural planning, marketing, legal, and other consultant's fees incurred after approval by the city, together with interest thereon at the legal rate until paid. Compensation shall not include any diminution in the value of the property which is caused by such action;
(5) Upon findings by the Asheville City Council, by ordinance after notice and a hearing, that the landowner or his representative intentionally supplied inaccurate information or made material misrepresentations which made a difference in the approval by the Asheville City Council of the site specific development plan; or
(6) Upon the enactment or promulgation of a state or federal law or regulation that precludes development as contemplated in the site specific development plan, in which case the Asheville City Council may, by ordinance after notice and a hearing, modify the affected provisions upon a finding that the change in state or federal law has a fundamental effect on the plan.
(g) Voluntary annexation. A petition for annexation filed with the City of Asheville under N.C. Gen. Stat. sec. 160A-31 or N.C. Gen. Stat. sec. 160A-58.1 shall contain a signed statement declaring whether or not any zoning vested right with respect to the properties subject to the petition has been established under N.C. Gen. Stat. sec. 160A-385.1 or N.C. Gen. Stat. sec. 153A-344.1. A statement that declares that no zoning vested right has been established under N.C. Gen. Stat. sec. 160A-385.1 or N.C. Gen. Stat. sec. 153A-344.1, or the failure to sign a statement declaring whether or not a zoning vested right has been established, shall be binding on the landowner and any such zoning vested right shall be terminated.
(h) Limitations. Nothing in this section is intended or shall be deemed to create any vested right other than those established pursuant to N.C. Gen. Stat. sec. 160A-385.1.
(i) Repeal. In the event that N.C. Gen. Stat. sec. 160A-385.1 is repealed, this section shall be deemed repealed and the provisions hereof no longer effective.
(j) Building permit vested right. Amendments, modifications, supplements, repeal, or other changes in zoning regulations and restrictions and zone boundaries shall not be applicable or enforceable without consent of the owner with regard to lots for which building permits have been issued pursuant to N.C. Gen. Stat. sec. 160A-417 prior to the enactment of the ordinance making the change or changes so long as the permits remain valid and unexpired pursuant to N.C. Gen. Stat. sec. 160A-418 and unrevoked pursuant to N.C. Gen. Stat. sec. 160A-422.
(Ord. No. 2369, § 1, 5-27-97; Ord. No. 3417, § 1(d), 11-28-06)