(A) Pursuant to G.S. § 160A-385.1 and not withstanding any other provision of this chapter or amendment thereto, a landowner may apply for a site specific development plan approval which shall entitle said landowner to develop property in accordance with said site specific development plan.
(B) The procedure for establishing a vested right is set forth in this section.
(1) Definitions. For the purpose of this section, the following definitions shall apply unless the context clearly indicates or requires a different meaning.
LANDOWNER. Any owner of a legal or equitable interest in real property, including the heirs, devisees, successors, assigns and personal representative of such owner. The landowner may allow a person holding a valid option to purchase to act as his or her agent or representative for purposes of submitting a proposed site specific development plan in the manner allowed by this chapter.
PROPERTY. All real property subject to zoning regulations and restrictions and within the jurisdiction of the town.
VESTED RIGHT. The right to undertake and complete the development and use of property under the terms and conditions of an approved site specific development plan.
(2) Submission of a site specific development plan.
(a) To apply for vested right, a landowner shall first submit to the Zoning Administrator a site specific development plan. The plan shall be submitted in completed form (i.e., contain all information as herein prescribed) with a fee (in accordance with a fee schedule adopted by the Town Council) and an accompanying application which, at a minimum, contains the following information: all information listed in § 155.171 of this chapter.
(b) Once the Zoning Administrator deems the site specific development plan to be complete, he or she shall schedule it to be reviewed by the Planning Board at its next regularly scheduled meeting. The Zoning Administrator must receive the complete plan at least ten days prior to the Planning Board’s next meeting date to place it on its agenda.
(3) Planning Board review and recommendation. Once the site specific development plan is forwarded, the Planning Board shall review the application and make a recommendation to the Town Council. The Planning Board shall have up to 45 days from its first meeting date to make such recommendation. Alternatively, the Planning Board could request additional information of the applicant in order to aid it in its review of the application. Such information may include (but not be limited to) that listed in § 155.171 of this chapter. If no recommendation is made during said 45-day period (except as herein provided), the application shall forthwith be forwarded to the Town Council without a recommendation.
(4) Public hearing. Upon receipt of the plan and the recommendation from the Planning Board, if one is forthcoming, the Town Council shall schedule a public hearing. Notice of the Town Council public hearing shall be given as follows.
(a) A notice shall be published in a newspaper having general circulation in town once a week, for two successive weeks, the first notice to be published not less than ten days, nor more than 25 days, prior to the date established for the hearing.
(b) At least one notice shall be conspicuously posted on the subject property at least ten days prior to the public hearing. Such notice shall state the nature of the public hearing and the date, time and location at which it is to be held. The notice shall be removed only after the public hearing has been held.
(c) A notice of the public hearing shall be sent by first class mail by the Zoning Administrator to all contiguous property owners at least ten days prior to the public hearing.
(5) Town Council action.
(a) Once the public hearing has been conducted and concluded, the Town Council shall determine whether or not to approve the site-specific development plan and accord the vested right. In approving an application for vested rights of a site specific development plan, the Town Council may attach fair and reasonable ad hoc conditions which tend to support the requiring finding of facts as herein listed. The petitioner shall be given reasonable opportunity to consider and respond to any additional requirements prior to approval or denial by the Town Council. The Town Council may not require the landowner to waive his or her vested right as a condition of developmental approval.
(b) The Town Council may approve the site specific development plan if it has evaluated an application and determined that:
1. The use meets all required specifications of this chapter;
2. The use will not materially endanger the public health or safety and will not substantially injure the value of adjoining property if located where proposed. Conditions, if any, placed on the site specific development plan by the Town Council shall be adequate to meet this requirement; and
3. If the site specific development plan is vested for a period of greater than two years, this shall be based on one or more factors so described in division (B)(6) below.
(c) The burden of proof of producing evidence to support these findings (and to overcome any challenges that approval of the site plan would be contrary to one or more of these findings) shall rest entirely with the landowner.
(d) If the use or development for which the site specific development plan is submitted is a conditional use, the Town Council may approve the site specific development plan contemporaneously with the approval of the conditional use permit. In no case, however, may a site specific development plan be approved for a use or development which requires the issuance of a conditional use permit without the conditional use permit having first been issued.
(6) Effect of approval.
(a) The effect of the Town Council approving a site-specific development plan shall be to vest such site plan for a period of two years from the date of approval. If the landowner requests, however, the Town Council may approve a vesting period not to exceed five years from the date of approval. The vesting of any site plan beyond a two-year period may only be authorized by the Town Council where it is found that, due to the following, building permits for all phases of the development cannot be secured within two years:
1. The sizing and phasing of the development;
2. The level of investment;
3. The need for the development;
4. Economic cycles; or
5. Market conditions.
(b) A vested right shall confer upon the landowner the right to undertake and complete the development and use of said property under the terms and conditions of the site specific development plan as provided for in this section. Failure to abide by the terms and conditions placed upon such approval will result in the forfeiture of the vested right previously accorded.
(c) A vested right, once established as herein provided, shall preclude any zoning action by the town which would change, alter, impair, prevent, diminish or otherwise delay the development or use of the property as set forth in the approved site specific development, except under the following conditions:
1. The affected landowner provides written consent to the town of his or her desire to terminate the vested right;
2. The town determines, after having advertised and held a public hearing, that natural or human-made hazards exist on or in the immediate vicinity of the property which pose a serious threat to the public health, safety and welfare if the project were to proceed as indicated in the site specific development plan;
3. Compensation is made by the town to the landowner for all costs, expenses and other losses incurred including, but not limited to, all fees paid in consideration of financing, and all architectural, planning, marketing, legal and any other consultant’s fees incurred after approval together with interest thereon at the legal rate until paid;
4. The town determines, after having advertised and held a public hearing, that the landowner or his or her representative intentionally supplied inaccurate information or made material misrepresentations which made a difference in the approval by the town of the site specific development plan; or
5. Upon the enactment or promulgation of a state or federal law or regulations which precludes development as contemplated in the site-specific development plan. In such case, the town may (after having advertised and conducted a public hearing) modify the affected provisions upon a finding that the change in state or federal law has a fundamental effect on the plan.
(d) Any public hearing called for in this division (B)(6) shall be conducted by the Town Council and advertised as indicated in division (B)(4) above. Recommendation by the Planning Board and final action by the Town Council shall be undertaken provided in divisions (B)(3) and (B)(5) above, respectively.
(e) Once a vested right is granted to a particular site-specific development plan, nothing in this section shall preclude the town from conducting subsequent reviews and approvals to ensure compliance with the terms and conditions of the original approval, provided such reviews and approvals are not inconsistent with the original approval.
(7) Revocation or expiration of a vested right. The vested right resulting from the approval of a site-specific development plan may be revoked by the Town Council as provided for in division (B)(6) above. In addition, a revocation may occur if the Town Council determines that the landowner has failed to comply with the terms and conditions of the approval or with any other applicable portion of this chapter. The vested right shall otherwise expire at the end of the approval period established by the Town Council.
(8) Revocation of building permit. A building permit issued by the County Building Inspector pursuant to G.S. § 160A-417 may not be revoked because of the running of time on a piece of property for which a site-specific development plan has been approved and the vested right period has not otherwise expired.
(9) Amendments to this chapter. The establishment of a vested right on a piece of property for a site-specific development plan shall not preclude the town from establishing and enforcing on the property any additional regulations (adopted during the time the vested right was in effect) which are general in nature and applicable to all property subject to the regulations of this chapter.
(Ord. passed - -, § 11.9)