ARTICLE 3:  REVIEW AND APPROVAL PROCEDURES
Section
3.1   Common review procedures
3.2   Standards, procedures, and requirements for development applications
§ 3.1  COMMON REVIEW PROCEDURES.
   Applications for development approval shall utilize the procedures set forth in this section.
   3.1.1   Authority to file applications.
   (A)   General. Applications submitted under this in accordance with division 3.1.5, Application Submission, shall be submitted by the landowner or a person acting on the behalf of the landowner with their authorization and consent.
   (B)   Applicant not the owner. If the applicant is not the owner (or sole owner) of the land, or is a contract purchaser of the land, a notarized form supplied by the town and signed by the owner(s) consenting to the submission of the application shall be submitted along with all the required application information, with the exception of applications to amend the Official Zoning Map initiated by the Town Council, Planning Board, or Ordinance Administrator subject to division 3.2.(C) of this ordinance.
   3.1.2   Application content. The Ordinance Administrator shall establish the requirements for the general form and content of applications required by this ordinance. These shall be in addition to any specific application content requirements established by the ordinance.
   3.1.3   Fees. The Town Council shall establish, and may modify from time to time, a schedule of fees that must be paid in full prior to the review of any submitted application.
   3.1.4   Submission and review schedule. The Ordinance Administrator shall establish a submission and review schedule (including time frames for review) for development applications. This schedule may be amended and updated as determined necessary.
   3.1.5   Application submission. All applications shall be submitted to the Ordinance Administrator on such forms and in such numbers as have been established for that type of development application. Applications which do not meet the requirements of division 3.1.6, Determination of Completeness, shall be considered incomplete, and their review deferred until such time that all requirements of that division have been fulfilled. The Ordinance Administrator may require a pre-submittal conference prior to any application, at the applicant’s expense.
   3.1.6   Determination of completeness.
   (A)   Review for completeness. Upon the receipt of an application, the Ordinance Administrator shall review the application for completeness. A complete application is one that:
      (1)   Contains all information and materials established by the Ordinance Administrator, or set forth elsewhere in the ordinance, for the particular type of development application;
      (2)   Is in the form established by the Ordinance Administrator for the particular type of development application;
      (3)   Includes information in sufficient detail to evaluate the application to determine whether it complies with the appropriate standards of this ordinance; and
      (4)   Is accompanied by the fee established for the particular type of application.
   (B)   Incomplete applications. If the application is determined to be incomplete, the Ordinance Administrator shall notify the applicant of the deficiencies within ten business days following submittal. Following notification, the applicant may correct the deficiencies and resubmit the application for review.
   3.1.7   Final approval by the Ordinance Administrator. When an application that is subject to final approval by the Ordinance Administrator is submitted and determined to be complete, he or she shall review the application and approve or deny it based on the standards set forth in the ordinance. Following his or her approval or denial of the application, the Ordinance Administrator shall notify the applicant of his or her decision within the time period set forth in the submission and review schedule.
   3.1.8   Preparation of staff report. When an application which will be considered by a reviewing or decision-making body is submitted and determined to be complete, the Ordinance Administrator shall review the application and prepare a written staff report.
   (A)   The staff report shall be addressed to the reviewing or decision-making body as appropriate, and shall state whether the application complies with all appropriate standards of this ordinance and all other applicable policy documents.
   (B)   The Ordinance Administrator may include a recommendation for approval or denial of the application in the staff report. Proposed conditions of approval may also be included in the report if the Ordinance Administrator determines that such conditions may be necessary to mitigate any potentially adverse impacts of the proposed development.
   3.1.9   Public hearings. Public hearings will be scheduled for LDO text amendments, zoning map amendments, Conditional Zoning District classifications, and the establishment of vested rights. The Ordinance Administrator shall be responsible for scheduling public hearings for all applications for which one is required. The hearing may be scheduled for either a regular meeting or a special called meeting of the Town Council. Hearings shall be scheduled in a manner that will allow sufficient time for public notice to be given in accordance with statutory requirements.
   3.1.10   Public notification of legislative decisions.
   (A)   Content. All public notices required under this ordinance shall comply with G.S. §§ 160A-364 and 160A-384. Additionally, all notices, except for posted notices shall:
      (1)   Identify the date, time, and location of the meeting or public hearing;
      (2)   Identify the property involved by the street address (if applicable) or by the legal description and/or parcel identification number (PIN);
      (3)   Describe the nature and scope of the proposed action;
      (4)   Indicate that interested parties may appear at public hearings and speak on the matter; and
      (5)   Indicate how additional information on the matter can be obtained.
   (B)   Published notice. When the provisions of this ordinance require that notice of a public hearing or meeting be published pursuant to G.S. § 160A-364, the Ordinance Administrator shall publish a notice of the meeting or public hearing once a week for two successive weeks in a newspaper having general circulation in the town. The first notice shall be published not less than ten days nor more than 25 days prior to the date fixed for the hearing or meeting. In computing such period, the day of publication is not included but the day of the hearing or meeting shall be included.
   (C)   Mailed notice.
      (1)   When the provisions of this ordinance require that mailed notice be provided pursuant to G.S. § 160A-384, the Ordinance Administrator shall prepare a notice of the public hearing or meeting and deliver the notice via first class mail to the following persons:
         (i)   The applicant;
         (ii)   Listed property owner(s) directly affected by the proposed action if the applicant is not the owner;
         (iii)   Listed owners of adjacent property; and
         (iv)   Listed owners of property lying within 500 feet of the boundary of the subject property or zoning district boundary, as applicable.
      (2)   Mailed notices shall be deposited in the mail no fewer than ten days and no more than 25 days prior to the date of the public hearing or meeting.
      (3)   The Ordinance Administrator shall certify to the Town Council that the required mailed notice procedures have been followed. This certification shall be conclusive evidence that the terms of this division have been met as set forth in G.S. § 160A-384(a).
      (4)   Mailed notice shall not be required when an application to amend the Official Zoning Map includes more than 50 different lots or tracts, owned by at least 50 different landowners, provided that the town publishes a notice (occupying at least one-half of a newspaper page) in a newspaper of general circulation once a week for two consecutive weeks beginning at least ten but not more than 25 days prior to the public hearing date. Affected landowners residing outside of the town’s jurisdiction or the newspaper’s circulation area shall be notified via first class mail in accordance with the procedures set forth in divisions (C)(1) and (C)(2) above.
   (D)   Posted notice.
      (1)   When the provisions of this ordinance require that notice be posted pursuant to G.S. § 160A-384(c), the Ordinance Administrator shall post the notice on the subject property at least ten days prior to the first public hearing or meeting. When multiple parcels are included within a proposed zoning map amendment, a posting on each individual parcel is not required, but the town shall post sufficient notices to provide reasonable notice to interested persons. In computing such period, the day of the posting shall not be counted, but the day of the hearing shall be counted. Posted notices shall remain in place until such time that the approving authority has rendered its final decision on the matter.
      (2)   If no part of the subject property is visible from a public right-of-way, the notice shall be posted along the nearest street in the public right-of-way in such a manner as to ensure consistency with the intent of this division (D).
   (E)   Constructive notice.
      (1)   Minor defects in any notice shall not impair the notice or invalidate proceedings pursuant to the notice if a bona fide attempt has been made to comply with the applicable notice requirements. Minor defects in notices may include, but are not limited to:
         (i)   Errors in legal descriptions; or
         (ii)   Typographical or grammatical errors that do not impede the communication of the notice to affected parties.
      (2)   Failure of an affected party to receive written notice shall not invalidate subsequent action. In all cases, however, the requirements for the timing of the notice and for specifying the time, date, and place of a public hearing or meeting and the location of the subject property(ies) shall be strictly adhered to.
      (3)   If question arises at the hearing or meeting regarding the adequacy of the notice, the reviewing or decision-making body shall direct the Ordinance Administrator to make a formal finding as to whether there was substantial compliance with the notice requirements of this ordinance, and such findings shall be made available to the reviewing or decision-making body prior to further action being taken on the request.
   (F)   Summary of notice requirements. The following table summarizes the public notice requirements for development applications requiring legislative decisions.
 
Table 3-2: Summary of Notice Requirements
Application Type
Notice Type
Published Notice
Mailed Notice
Posted Notice
Conditional Zoning District classification
X
X
X
Establishment of vested rights
X
X
X
Land development ordinance text amendment
X
Zoning map amendment
X
X
X
 
   3.1.11   Public notification of quasi-judicial decisions. Quasi-judicial hearings will be scheduled for special use permits, variance, watershed variances, floodplain variances, and appeals of administrative decisions. The Ordinance Administrator shall be responsible for scheduling quasi-judicial public hearings for all applications for which one is required. The hearing may be scheduled for either a regular meeting or a special called meeting of the Board of Adjustment. Hearings will be scheduled in a manner that allows sufficient time for notice to be given in accordance with statutory requirements.
   3.1.12   Notice of quasi-judicial hearings. Notice of quasi-judicial hearings shall be mailed to the person or entity whose appeal, application, or request is the subject of the hearing; to the owner of the property that is the subject of the hearing if the owner did not initiate the hearing; to the owners of all parcels of land abutting the parcel of land that is the subject of the hearing; and to any other persons entitled to receive notice as provided by the zoning or unified development ordinance. In the absence of evidence to the contrary, the town may rely on the county tax listing to determine owners of property entitled to mailed notice. The notice must be deposited in the mail at least ten days, but not more than 25 days, prior to the date of the hearing. Within that same time period, the town shall also prominently post a notice of the hearing on the site that is the subject of the hearing or on an adjacent street or highway right-of-way.
   3.1.13   Quasi-judicial decisions. The Board of Adjustment shall determine contested facts and make its decision within a reasonable time. Every quasi-judicial decision shall be based upon competent, material, and substantial evidence in the record. Each quasi-judicial decision shall be reduced to writing and reflect the Board of Adjustment’s determination of contested facts and their application to the applicable standards. The written decision shall be signed by the chair or other duly authorized member of the Board of Adjustment. A quasi-judicial decision is effective upon filing the written decision with the Town Clerk. The decision of the Board of Adjustment shall be delivered by personal delivery, electronic mail, or by first-class mail to the applicant, property owner, and to any person who has submitted a written request for a copy, prior to the date the decision becomes effective. The person required to provide notice shall certify that proper notice has been made.
   3.1.14   Judicial review of quasi-judicial decisions. Pursuant to G.S. § 160A-388(e2)(2), every quasi-judicial decision shall be subject to review by the Superior Court by proceedings in the nature of certiorari pursuant to G.S. § 160A-393. A petition for review shall be filed with the Clerk of Superior Court by the later of 30 days after the decision is effective or after a written copy thereof is given in accordance with division 3.1.13. When first-class mail is used to deliver notice, three days shall be added to the time to file the petition. This division 3.1.14, is a summary of state law only and parties are advised to consult the state’s general statutes which shall govern judicial review of quasi-judicial decisions.
   3.1.15   Conditions of approval.
   (A)   General. When a decision-making body may, according to the express terms of this ordinance, approve a development application with conditions, such body may impose reasonable and appropriate conditions or restrictions on the approval. The conditions may, as appropriate, ensure compliance with the general goals and policies of this ordinance, or with particular standards of this ordinance, in order to prevent or minimize adverse effects from the proposed development on surrounding lands.
   (B)   Limitations.
      (1)   The restrictions and conditions imposed must be directly related, in both type and scope, to the impact that the proposed development would have on the public and surrounding lands. All conditions imposed shall be expressly set forth in the motion by the decision-making body to approve the development application.
   3.1.16   Deferral of application.
   (A)   Request prior to publication of notice. An applicant may request that a decision-making body’s consideration of an application at a public hearing be deferred by submitting a written request for deferral to the Ordinance Administrator prior to the publication of notice for the public hearing. The Ordinance Administrator may grant such requests for good cause. The date of the new public hearing at which the application will be heard shall be set at the time the deferral is granted.
   (B)   Request after publication of notice. If a request for deferral of consideration of an application by a decision-making body is submitted subsequent to publication of notice, the request for deferral shall be placed on the public hearing agenda and acted upon by the decision-making body. The decision-making body may grant such requests for good cause. The date of the new public hearing at which the application will be heard shall be set at the time the deferral is granted. If a deferral is granted, the application may be subject to additional application fees to defray the costs of processing the application and advertising the public hearing, if any. Any additional fees must be paid to the town prior to the readvertisement of the public hearing notice.
   3.1.17   Changes to application after notice of public hearing.
   (A)   Clerical errors. Minor additions, deletions, or corrections constituting clerical errors in an application may be made without referral of the application, as amended, back to the Ordinance Administrator for review and preparation of a staff report, or to any review bodies as is required for the original review of the application.
   (B)   Major changes. No substantive changes to a development application related to uses, densities, intensities, street layout, access, open space configuration, or other major element shall be made after notification of a public hearing. Major changes by the applicant after notification of a public hearing require that the original application be withdrawn and a new application be submitted along with any required fees. The resubmitted application must go through the entire review process as if it were a new application in order to ensure the proper review of all changes.
   (C)   Conditions of approval. Proposed changes in conditions of approval may be considered by the Town Council or Board of Adjustment without referral back to the Ordinance Administrator or other recommending body.
   3.1.18   Withdrawal of application.
   (A)   Submission of request. Any request for withdrawal of an application subject to a public hearing shall be submitted in writing to the Ordinance Administrator, or shall be made through a verbal request at the public hearing for which the application has been scheduled.
   (B)   Prior to notice of public hearing. The Ordinance Administrator shall approve a request for withdrawal of an application if it has been submitted prior to public notification of the application.
   (C)   Subsequent to notice of public hearing.
      (1)   If the request for withdrawal of an application is submitted subsequent to public notification, the request for withdrawal shall be placed on the public hearing agenda and acted upon by the decision-making body.
      (2)   Whenever an application subject to a requirement for a public hearing before the Town Council is withdrawn after public notification, but prior to a decision by the Town Council, no similar application may be submitted for the same property for a period of 90 days following the withdrawal.
   (D)   Fees. Fees shall not be refunded for withdrawn applications.
   (E)   Waiting period. No more than two withdrawals of the same type of development application for the same property may be filed within any single 12-month period, and no similar type of application may be filed for the same land within one year following the second withdrawal.
   (F)   Notification of decision to applicant. Within a reasonable period of time after a decision on an application, the Town Clerk shall notify the applicant of the decision in writing. Within a reasonable period of time after the decision, a copy of the decision shall also be made available to the public in the office of the Town Clerk.
   (G)   Lapse of approval. Lapse of approval (also referred to as “expiration”) shall occur as provided by this ordinance for the various types of development applications. If no provision for lapse is given by this ordinance for a particular type of development permit or approval, and if no lapse period is imposed as part of an approval by the decision-making body, lapse shall occur if development is not commenced or a subsequent permit authorized by that approval, or an extension is not obtained within two years.
   (H)   Examination of application and supporting documents. At any time upon reasonable request and during normal business hours, any person may examine an application, a finalized staff report and materials submitted in support of or in opposition to an application in the office of the Town Clerk. Copies of such materials shall be made available at a reasonable cost.
§ 3.2  STANDARDS, PROCEDURES, AND REQUIREMENTS FOR DEVELOPMENT APPLICATIONS.
   This section includes the review procedures, standards, and related information for each of the development application procedures as summarized in Table 2-1, Summary of Review and Approval Authority.
   3.2.1   Zoning map amendment.
   (A)   Purpose. The purpose of this section is to provide a uniform means for amending the Official Zoning Map.
   (B)   Authority. The Town Council may adopt an ordinance amending the Official Zoning Map upon compliance with the provisions of this section.
   (C)   Initiation. An application to amend the Official Zoning Map may be initiated by the Town Council, the Planning Board, the Ordinance Administrator, or a resident of the town.
   (D)   Conditional Zoning District classification distinguished.
      (1)   Applications for an amendment to the Official Zoning Map that are accompanied by applicant sponsored conditions or limitations shall be considered as a Conditional Zoning District classification, and shall be reviewed in accordance with this division and division 3.2.3, Conditional Zoning District Classification.
      (2)   In no case shall an application for an amendment to the Official Zoning Map be converted into an application for a Conditional Zoning District classification, nor shall an application for a Conditional Zoning District classification be converted into an application for an amendment to the Official Zoning Map. If such a conversion is desired by the applicant, he or she shall withdraw the original request and resubmit a new application and any required fees for the desired process.
   (E)   Procedures.
      (1)   Preliminary procedures. The preliminary procedures and requirements for submission and review of an application are established in § 3.1, Common Review Procedures.
      (2)   Review and recommendation by Ordinance Administrator. Prior to the submission of the application to the Planning Board, the Ordinance Administrator shall review the application and make a written recommendation which he or she shall present to the Planning Board during the meeting at which it considers the application.
      (3)   Review and recommendation by the Planning Board. Following the review by the Ordinance Administrator, the application shall be forwarded to the Planning Board for its review and recommendation. During the meeting, the Planning Board shall consider the application, relevant supporting materials, the Ordinance Administrator’s recommendation, and any comments given by the public on the matter. Within 45 days of the first meeting on an application, the Planning Board shall make a written recommendation to the Town Council. In making its recommendation, the Planning Board shall include a written statement summarizing the amendment’s consistency with the Land Use Plan and any other relevant plans having applicability to the proposed amendment in accordance with G.S. § 160A-383.
      (4)   Review and action by Town Council. Following the receipt of a recommendation from the Planning Board, the Town Council shall conduct a public hearing to review and consider the application, the relevant supporting materials, the Ordinance Administrator’s recommendation, the recommendation of the Planning Board, and the comments given during the hearing (if any). Following the close of the public hearing, the Town Council shall take one of the following actions:
         (i)   Approve the application as requested;
         (ii)   Approve the application with a reduction in the size of the area requested;
         (iii)   Approve the application to a more restrictive Base Zoning District;
         (iv)   Deny the application; or
         (v)   Remand the application back to the Planning Board for further consideration.
   Regardless of the decision on the application, the Town Council shall adopt a statement on the proposed amendment’s consistency with the Land Use Plan and any other relevant plans having applicability to the proposed amendment, as well as the reasonableness of the action and how the action furthers the public interest in accordance with G.S. § 160A-383. Where a rezoning is approved that has the effect of creating an isolated district (a zoning district surrounded entirely by dissimilar zoning districts) that is less than ten acres in size, the Town Council shall also adopt a statement analyzing the reasonableness of the approval of the small scale rezoning in accordance with G.S. § 160A-382.
   (F)   Protest petitions.
      (1)   General. Applications to amend the Official Zoning Map which are subject to a valid protest petition, as set forth in G.S. § 160A-385, shall only be approved by an affirmative vote of at least three-fourths of the members of the Town Council who are eligible to vote on the matter.
      (2)   Valid protest petitions. For a protest petition to be valid, it must be signed by:
         (i)   The owners of at least 20% of the land area within the area subject to the application for amendment; or
         (ii)   The owners of at least 5% of the land within a 100-foot buffer extending along the perimeter of the area subject to the application for amendment. A street right-of-way shall not be considered in computing the buffer distance, provided that the right-of-way is less than 100 feet in width. If an area less than an entire parcel is proposed for rezoning, the buffer shall be computed from the exterior parcel boundary.
   In accordance with G.S. § 160A-386, no protest against any change in or amendment to a zoning ordinance or zoning map shall be valid or effective for the purposes of G.S. § 160A-385 unless it is in the form of a written petition actually bearing the signatures of the requisite number of property owners and stating that the signers do protest the proposed change or amendment, and unless it shall have been received by the Town Clerk in sufficient time to allow the town at least two normal work days, excluding Saturdays, Sundays, and legal holidays, before the date established for a public hearing on the proposed change or amendment to determine the sufficiency and accuracy of the petition.
   (G)   Zoning map amendment standards. Amending the Official Zoning Map is a matter committed to the legislative discretion of the Town Council. In determining whether to approve or deny a proposed amendment, the Town Council shall consider and weigh the relevance of the following factors.
      (1)   Whether, and to the extent which, the proposed amendment is consistent with the Land Use Plan, and any other relevant plans;
      (2)   Whether, and to the extent which, the proposed amendment addresses a demonstrated community need;
      (3)   Whether, and to the extent which, the proposed amendment is compatible with existing and proposed uses surrounding the land subject to the amendment;
      (4)   Whether, and to the extent which, the proposed amendment would result in a logical and orderly pattern of development;
      (5)   Whether, and to the extent which, the proposed amendment would encourage premature development in the area subject to the amendment;
      (6)   Whether, and to the extent which, the proposed amendment would result in adverse impacts to property values in the area surrounding the land subject to the amendment; and
      (7)   Whether, and to the extent which, the proposed amendment would result in significantly adverse impacts on the natural environment.
   3.2.2   Land development ordinance text amendment.
   (A)   Purpose. The purpose of this division is to provide a uniform means for amending the text of the land development ordinance.
   (B)   Authority. The Town Council may adopt an ordinance amending the text of the land development ordinance upon compliance with the provisions of this section.
   (C)   Initiation. An application to amend the text of the land development ordinance may be initiated by the Town Council, the Planning Board, the Ordinance Administrator, a resident of the town, or any other person having a financial or other interest in land located within the town’s zoning jurisdiction.
   (D)   Procedures.
      (1)   Preliminary procedures. The preliminary procedures and requirements for submission and review of an application are established in § 3.1, Common Review Procedures.
      (2)   Review and recommendation by Ordinance Administrator. Prior to the submission of the application to the Planning Board, the Ordinance Administrator shall review the application and make a written recommendation, which he or she shall present to the Planning Board.
      (3)   Review and recommendation by Planning Board. Following the review and recommendation by the Ordinance Administrator, the application shall be forwarded to the Planning Board for its review and recommendation. During the meeting, the Planning Board shall consider the application, relevant supporting materials, the Ordinance Administrator’s recommendation, and any comments given by the public on the matter. Within 45 days of the first meeting on an application, the Planning Board shall make a written recommendation to the Town Council. In making its recommendation, the Planning Board shall include a written statement summarizing the amendment’s consistency with the Land Use Plan and any other relevant plans having applicability to the proposed amendment in accordance with G.S. § 160A-383.
      (4)   Review and action by Town Council. Following the receipt of a recommendation from the Planning Board, the Town Council shall conduct a public hearing to review and consider the application, the relevant supporting materials, the Ordinance Administrator’s recommendation, the recommendation of the Planning Board, and the comments given during the hearing (if any). Following the close of the public hearing, the Town Council shall take one of the following actions:
         (i)   Approve the amendment as proposed;
         (ii)   Approve a revised amendment;
         (iii)   Remand the application back to the Planning Board for further consideration; or
         (iv)   Deny the proposed amendment.
   Regardless of the decision on the application, the Town Council shall adopt a statement on the proposed amendment’s consistency with the Land Use Plan and any other relevant plans having applicability to the proposed amendment as well as the reasonableness of the action and how the action furthers the public interest in accordance with G.S. § 160A-383.
   (E)   Land development ordinance text amendment standards. Amending the text of the land development ordinance is a matter committed to the legislative discretion of the Town Council. In determining whether to approve or deny a proposed amendment, the Town Council shall consider and weigh the relevance of the following factors:
      (1)   Whether, and to the extent which, the proposed amendment is consistent with the Land Use Plan, and any other relevant plans;
      (2)   Whether, and to the extent which, the proposed amendment addresses a demonstrated community need;
      (3)   Whether the proposed amendment is in conflict with any other provision of this ordinance or other related town regulations;
      (4)   Whether, and to the extent which, the proposed amendment is consistent with the purpose of the zoning districts in the ordinance, or will improve compatibility among uses and will ensure efficient development in the town; and
      (5)   Whether, and to the extent which, the proposed amendment would result in significantly adverse impacts on the natural environment.
   3.2.3   Conditional Zoning District classification.
   (A)   Purpose. A Conditional Zoning District classification allows particular land uses to be established only in accordance with specific standards and conditions adopted as part of the establishment of the district. In cases where the standards of a Base Zoning District are inadequate to ensure the compatibility of a proposed development with immediately surrounding lands, the landowner may apply for an amendment to the Official Zoning Map to a Conditional Zoning District classification. Conditional Zoning Districts are subject to additional conditions or restrictions above and beyond the standards of the parallel Base Zoning District as a means of ensuring compatibility of the proposed development with the use of neighboring lands.
   (B)   Procedure. Approval of a Conditional Zoning District classification shall require an amendment to the Official Zoning Map (using the procedures established in division 3.2.1, Zoning Map Amendment) accompanied by the submission of applicant sponsored conditions limiting the scope of the development proposal and a concept plan (reviewed in accordance with division 3.2.6(D)(3), Concept Plan - Conditional Zoning District classification).
      (1)   Preliminary procedures. The preliminary procedures and requirements for submission and review of an application are established in § 3.1, Common Review Procedures.
      (2)   Concept plan review by the Ordinance Administrator. Applications for a Conditional Zoning District classification shall be subject to review of a concept plan (see division 3.2.6, Concept Plan) by the Ordinance Administrator prior to the preparation of a staff report.
      (3)   Review and recommendation by the Planning Board. After the review of the concept plan and the preparation of a staff report, the application shall be referred to the Planning Board for review and recommendation. During the meeting, the Planning Board shall consider the application, the relevant supporting materials, the concept plan, the staff report, and the public comments given at the meeting. Within 45 days of the first meeting on an application, the Planning Board shall make a written recommendation to the Town Council.
      (4)   Review and action by Town Council. Following the receipt of a recommendation from the Planning Board, the Town Council shall hold a public hearing on the application. At the public hearing, the Town Council shall consider the application, the relevant supporting materials, the concept plan, the staff report, the recommendation of the Planning Board, and comments given at the public hearing (if any). After the close of the public hearing, the Town Council shall, by a simple majority of all members present and qualified to vote, approve, approve with conditions, or deny the application. In the event of a valid protest petition, a motion for approval shall require a three-fourths majority vote in accordance with G.S. § 160A-385.
   (C)   Conditions.
      (1)   No use shall be authorized within a Conditional Zoning District except those uses proposed by the applicant and approved by the Town Council. In no case shall any use prohibited within a parallel Base Zoning District be authorized in a corresponding Conditional District.
      (2)   No condition shall be less restrictive than the parallel Base Zoning District or any applicable Overlay District standards.
      (3)   No condition shall be included that specifies the ownership status, race, religion, or character of the occupants of dwelling units, the minimum value of improvements, or any other exclusionary device.
      (4)   No changes in the concept plan or proposed conditions that are less restrictive than those in the application (e.g., smaller setbacks, more dwelling units, greater height, more access points, new uses, fewer improvements, and the like) shall be proposed by the applicant following public notification. Nothing in this division 3.2.3(C)(4) shall limit the application of new or more restrictive conditions after public notification, provided such conditions are received by the Ordinance Administrator in writing and signed by all owners of the property at least ten business days prior to the final decision on the application by the Town Council.
      (5)   In addition to any conditions proposed by the applicant, the Town Council may attach any additional conditions in accordance with division 3.1.15, Conditions of Approval (e.g., limitations on location, hours of operation, extent of the proposed uses, and the like), but the Town Council shall not attach a condition that requires a landowner to waive a vested right.
   (D)   Effect of approval. Lands subject to a Conditional Zoning District classification shall also be subject to the approved concept plan and approved conditions. The approved concept plan and conditions shall constitute the standards for the approved Conditional Zoning District, and are binding on the land as an amendment to this ordinance and the Official Zoning Map.
   (E)   Designation. A Conditional Zoning District classification shall bear the same designation as the parallel Base Zoning District, but shall also include the suffix “CD” along with the ordinance number establishing the Conditional Zoning District classification.
   (F)   Minor deviation. A minor deviation to a concept plan or approved conditions shall not be considered as an amendment, and shall be approved by the Ordinance Administrator. A minor deviation shall be limited to technical considerations which could not be reasonably anticipated during the approval process, or any other change which has no material effect on the character of the approved development or any if its approved conditions. The following shall constitute minor deviations:
      (1)   Driveway relocations;
      (2)   Structure floor plan revisions; and
      (3)   Facility design modifications for amenities and the like.
   Changes that materially affect the basic configuration or intent of the concept plan or approved conditions are not considered to be minor deviations, and shall be amendments that may only be considered in accordance with the procedure used to establish the Conditional Zoning District.
   (G)   Expiration. The Town Council may hold a public hearing in accordance with the zoning map amendment procedure in division 3.2.1 to abolish the Conditional Zoning District classification unless an application for a building permit (or other similar permit for uses which do not involve the construction of a structure) for any part of the associated concept plan is submitted within two years of the initial approval. Such time period shall not be extended with transfer of ownership.
   (H)   Extension. Upon written application by the owner, submitted at least 30 days prior to the expiration of the Conditional Zoning District classification, and upon showing good cause, the Town Council may grant one extension, not to exceed six months, for an applicant to obtain a building permit (or other similar permit for uses which do not involve the construction of a structure). Failure to obtain a building permit (or other similar permit for uses which do not involve the construction of a structure) within the time established in the extension shall result in the expiration of the Conditional Zoning District classification.
   3.2.4  Special use permit.
   (A)   Purpose. Special uses are uses that are generally compatible with the other uses permitted in a zoning district, but require individual review of their location, design, configuration, density and intensity of use, and usually require the imposition of conditions to ensure the appropriateness of the use at a particular location.
   (B)   Authority. The Board of Adjustment is authorized to review and decide applications for special use permits in accordance with this section. Only those uses identified as special uses in Table 7-1, Table of Permitted Uses, are authorized to be considered as special uses under this section. The designation of a use as a special use does not constitute an authorization that such use shall be approved through a special use permit in accordance with this section. Rather, each proposed special use shall be evaluated by the Board of Adjustment for compliance with the standards set forth in this section and the applicable standards for the use in § 7.3, Use Specific Standards (if applicable).
   (C)   Initiation. Application for a special use permit may only be initiated by the owner(s), an authorized agent, lessee, or contract purchaser(s), of the property for which the special use permit is designated in accordance with division 3.1.1.
   (D)   Procedures.
      (1)   Preliminary procedures. The preliminary procedures and requirements for submission and review of an application are established in § 3.1, Common Review Procedures.
      (2)   Concept plan required. A concept plan must be submitted as part of the application for a special use permit. The concept plan shall conform to the requirements set forth in division 3.2.6(E), Concept Plan Standards.
      (3)   Action by Board of Adjustment. After proper notice and scheduling of a public hearing, the Board of Adjustment shall conduct a quasi-judicial public hearing on the application. At the public hearing, the Board of Adjustment shall consider the application, the relevant supporting materials, the concept plan, and any evidence presented at the quasi-judicial public hearing. After the close of the public hearing, the Board of Adjustment shall approve, approve with conditions, or deny the application based on the standards in division 3.2.4(E), Special Use Permit Standards. In accordance with the standards set forth in G.S. § 160A-388(e), granting approval or conditional approval of a special use permit shall require an affirmative vote of the majority of the members of the Board of Adjustment who are eligible to vote.
   (E)   Special use permit standards.
      (1)   The proposed use will not be detrimental to the health, safety, or general welfare of persons residing or working in the vicinity, or injurious to property or improvements in the vicinity.
      (2)   The proposed use is in compliance with all standards in § 7.3, Use Specific Standards.
      (3)   The proposed use is compatible with the character of surrounding property and uses permitted in the zoning district(s) of surrounding property.
      (4)   The proposed use is configured in a manner to minimize any adverse effects on surrounding lands.
      (5)   The proposed use will not adversely impact traffic circulation on or in the vicinity of the site.
      (6)   The proposed use will not be detrimental to the value of adjacent or nearby property.
      (7)   The proposed use is in full compliance with all other relevant town laws and ordinances, state and federal laws, and regulations.
   (F)   Conditions of approval. In approving a special use permit, the Board of Adjustment may impose additional reasonable and appropriate conditions on the permit approval in accordance with G.S. § 160A-388(c).
   (G)   Effect of approval. Issuance of a special use permit shall authorize only the particular special use that is approved in the permit. All subsequent development and use of the property must be in accordance with the approved special use permit and conditions (if applicable). Nothing in this division 3.2.4(G) shall prevent the establishment of a different use of land, provided such use is established in accordance with the requirements in this ordinance.
   (H)   Recordation. When the Board of Adjustment approves a special use permit, the town shall, at the applicant’s expense, record the special use permit in the office of the County Register of Deeds within 30 days of its issuance.
   (I)   Subsequent development. Development authorized by the special use permit shall not be carried out until the applicant has secured all other permits required by this ordinance. A special use permit does not ensure that the use shall receive subsequent approval for other applications for permit approval unless the relevant and applicable portions of this ordinance are met.
   (J)   Expiration.
      (1)   General. The Board of Adjustment may prescribe a time limit within which development activity shall begin or be completed under the special use permit, or both. Failure to begin or complete such development activity within the time limit specified shall void the special use permit. Unless specified otherwise by the Board of Adjustment, a special use permit shall automatically expire two years from the date of its issuance if:
         (i)   The development authorized by the permit has not commenced, and no substantial construction, alteration, demolition, excavation, or other similar work required by the permit is completed;
         (ii)   Less than 10% of the total amount of development approved as part of the permit is completed, when construction, alteration, demolition, excavation, or other similar work is required; or
         (iii)   The development approved by the special use permit is discontinued and not resumed for a period of one year.
   (K)   Extension. Upon written application submitted at least 30 days prior to the expiration of the permit period by the applicant, and upon a showing of good cause, the Ordinance Administrator may grant one extension not to exceed six months. Failure to submit an application for an extension within the time limits established by this division shall result in the expiration of the special use permit.
   (L)   Minor deviation. Minor field alterations or minor revisions to approved special use permits may be approved by the Ordinance Administrator if the special use still meets the intent of the standards established with the original approval. Minor field alterations and revisions include, but are not limited to, small shifts in the location of structures, parking areas, landscaping, utilities, driveways, and other site features in order to accommodate the existence of circumstances found during construction that could not have been anticipated as the concept plan was developed. Any other change shall be considered as an amendment.
   (M)   Amendment. A special use permit may be amended, extended, or modified only in accordance with the procedures and standards established for its original approval.
   3.2.5   Variance.
   (A)   Purpose. The purpose of a variance is to allow certain deviations from the standards of this ordinance (such as height, yard setback, lot coverage, or similar numeric standards), when the landowner demonstrates that, owing to special circumstances or conditions beyond the landowner’s control (such as exceptional topographical conditions, narrowness, shallowness, or the shape of a specific parcel of land), the literal application of the standards would result in undue and unique hardship to the landowner and the deviation would not be contrary to the public interest variances to the standards established in Article 15, Watershed Protection or Article 16, Flood Damage Prevention shall be subject to additional requirements as set forth in divisions 3.2.5(J) and 3.2.5(K) respectively.
   (B)   Authority. The Board of Adjustment shall review and decide any applications for variances from the requirements of this ordinance in accordance with this division 3.2.5.
   (C)   Initiation. Application for a variance may only be initiated by the owner(s), an authorized agent, lessee, or contract purchaser(s), of the property for which the variance is designated in accordance with division 3.1.1.
   (D)   Procedures.
      (1)   Preliminary procedures. The preliminary procedures and requirements for submission and review of an application are established in § 3.1, Common Review Procedures.
      (2)   Action by Board of Adjustment. After appropriate notice has been given, the Board of Adjustment shall conduct a quasi-judicial hearing on the application. At the hearing, the Board of Adjustment shall consider the application, the relevant support materials and the sworn testimony given at the public hearing. Within a reasonable time following the close of the public hearing, the Board of Adjustment shall approve, approve with conditions, or deny the application based on the standards in division 3.2.5(E), Required Findings of Fact. In accordance with the standards set forth in G.S. § 160A-388(e), granting approval or conditional approval of a variance shall require an affirmative vote of at least four-fifths of the members of the Board of Adjustment who are eligible to vote.
   (E)   Required findings of fact. When unnecessary hardships would result from carrying out the strict letter of the LDO, the Board of Adjustment shall vary any of the provisions of the LDO upon a showing of all of the following.
      (1)   Unnecessary hardship would result from the strict application of the ordinance. It shall not be necessary to demonstrate that, in the absence of the variance, no reasonable use can be made of the property.
      (2)   The hardship results from conditions that are peculiar to the property, such as location, size, or topography. Hardships resulting from personal circumstances, as well as hardships resulting from conditions that are common to the neighborhood or the general public, may not be the basis for granting a variance.
      (3)   The hardship did not result from actions taken by the applicant or the property owner. The act of purchasing property with the knowledge that circumstances exist that may justify the granting of a variance shall not be regarded as self-created hardship.
      (4)   The requested variance is consistent with the spirit, purpose, and intent of the ordinance, such that public safety is secured and substantial justice is achieved.
   (F)   Conditions of approval. In approving a variance, the Board of Adjustment may impose additional appropriate conditions on the variance provided that the conditions are reasonably related to the variance in accordance with G.S. § 160A-388.
   (G)   Recordation. When the Board of Adjustment grants a variance, the town shall, at the applicant’s expense, record the written decision on the variance in the office of the County Register of Deeds within 30 days of its issuance.
   (H)   Subsequent development. Development authorized by the variance shall not be carried out until the applicant has secured all other permits required by this ordinance. A variance does not ensure that the use shall receive subsequent approval for other applications for permit approval unless the relevant and applicable portions of this ordinance are met.
   (I)   Variance runs with the land. A variance is not a personal right, but runs perpetually with the land for which the variance has been granted. As such, the provisions of an approved variance shall continue with the transfer of ownership of the land.
   (J)   Additional standards for watershed variances including variances under stormwater requirements for new development implementing the Falls Lake rules.
      (1)   The following additional requirements set out in 15A NCAC 02B .0104 shall apply to watershed variances and to variances from the provisions of this ordinance implementing the Falls Lake rules:
         (i)   A description of each project receiving a variance and the reason for granting the variance shall be submitted to the Environmental Commission on an annual basis by January 1.
         (ii)   Board of Adjustment may attach conditions to the major or minor variance approval that support the purpose of the applicable local watershed protection ordinance.
         (iii)   If the variance request qualifies as a major variance, and the Board of Adjustment decides in favor of granting the major variance, the Board of Adjustment shall then prepare a preliminary record of the hearing and submit it to the Environmental Management Commission for review and approval.
         (iv)   If the Environmental Management Commission approves the major variance or approves with conditions or stipulations added, then the Environmental Management Commission shall prepare an Environmental Management Commission decision which authorizes the Board of Adjustment to issue a final decision which would include any conditions or stipulations added by the Environmental Management Commission.
         (v)   If the Environmental Management Commission denies the major variance, then the Environmental Management Commission shall prepare an Environmental Management Commission decision to be sent to the Board of Adjustment. The Board of Adjustment shall prepare a final decision denying the major variance.
         (vi)   For all proposed major and minor variances, the town shall notify and allow a reasonable comment period for all other local governments having jurisdiction within the watershed area governed by the applicable rules and the entity using the water supply for consumption.
         (vii)   Appeals from the Board of Adjustment’s decision on a major or minor variance request are made on certiorari to the Superior Court. Appeals from the Environmental Management Commission decision on a major variance request are made on judicial review to Superior Court.
         (viii)   When the town’s ordinances are more stringent than the state’s minimum water supply protection rules, a variance to the town’s ordinance is not considered a major variance as long as the result of the variance is not less stringent than the state’s minimum requirements.
   (K)   Additional standards for floodplain variances.
      (1)   Additional information required. Applications for a floodplain variance shall include a written report evaluating the following factors. The contents of such report shall be considered by the Board of Adjustment as it makes its ruling on the floodplain variance:
         (i)   The danger that materials may be swept onto other lands to the injury of others;
         (ii)   The danger to life and property due to flooding or erosion damage;
         (iii)   The susceptibility of the proposed facility and its contents to flood damage and the effect of such damage on the individual owner;
         (iv)   The importance of the services provided by the proposed facility to the community;
         (v)   The necessity of a waterfront location for the facility, where applicable;
         (vi)   The availability of alternative locations, not subject to flooding or erosion damage, for the proposed use;
         (vii)   The compatibility of the proposed use with existing and anticipated development;
         (viii)   The relationship of the proposed use to the Comprehensive Plan and floodplain management program for that area;
         (ix)   The safety of access to the property in times of flood for ordinary and emergency vehicles;
         (x)   The expected heights, velocity, duration, rate of rise, and sediment transport of the floodwaters and the effects of wave action, if applicable, expected at the site; and
         (xi)   The costs of providing governmental services during and after flood conditions, including maintenance and repair of public utilities and facilities such as sewer, gas, electrical, and water systems, and streets and bridges.
      (2)   Conditions for floodplain variances.
         (i)   Variances shall not be issued when the variance will make the structure in violation of other federal, state, or local laws, regulations, or ordinances.
         (ii)   Variances shall not be issued within any designated floodway or non-encroachment area if the variance would result in any increase in flood levels during the base flood discharge.
         (iii)   Variances shall only be issued upon a determination that the variance is the minimum necessary, considering the flood hazard, to afford relief.
         (iv)   Variances shall only be issued prior to development permit approval.
         (v)   Variances shall only be issued upon:
            (a)   A showing of good and sufficient cause;
            (b)   A determination that failure to grant the variance would result in exceptional hardship; and
            (c)   A determination that the granting of a variance will not result in increased flood heights, additional threats to public safety, or extraordinary public expense, create nuisance, cause fraud on or victimization of the public, or conflict with existing local laws or ordinances.
      (3)   Variances for solid waste disposal facilities or sites, hazardous waste management facilities, salvage yards, and chemical storage facilities. A variance may be issued for solid waste disposal facilities or sites, hazardous waste management facilities, salvage yards, and chemical storage facilities that are located in Special Flood Hazard Areas provided that all of the following conditions are met:
         (i)   The use serves a critical need in the community;
         (ii)   No feasible location exists for the use outside the Special Flood Hazard Area;
         (iii)   The reference level of any structure is elevated or floodproofed to at least the regulatory flood protection elevation;
         (iv)   The use complies with all other applicable federal, state, and local laws; and
         (v)   The town has notified the Secretary of the state’s Department of Public Safety of its intention to grant a variance at least 30 calendar days prior to granting the variance.
      (4)   Additional notice requirements.
         (i)   Any applicant to whom a floodplain variance is granted shall be given written notice specifying the difference between the base flood elevation (BFE) and the elevation to which the structure is to be built and that such construction below the base flood elevation increases risks to life and property, and that the issuance of a variance to construct a structure below the base flood elevation will result in increased premium rates for flood insurance up to $25 per $100 of insurance coverage. Such notification shall be maintained with a record of all floodplain variance actions, including justification for their issuance.
         (ii)   The Ordinance Administrator shall report all floodplain variance approvals to the Federal Emergency Management Agency and the state’s Department of Crime Control and Public Safety.
   3.2.6   Concept plan.
   (A)   Purpose. The purpose of this division 3.2.6 is to establish a procedure for the review of a concept plan by the Ordinance Administrator prior to the submittal of an application for site plan approval or subdivision preliminary plat approval, or as part of an application for a Conditional Zoning District classification, special use permit, or for a parcel in one of the Gateway Districts. The intent of the concept plan procedure is to allow the town to consider the general design and configuration of a development proposal, and any applicant sponsored conditions, for general compliance with the requirements of this ordinance prior to the consideration of a Conditional Zoning District classification or a special use permit by the bodies charged with their review and approval, or the preparation of highly technical and detailed engineered drawings required for a site plan or subdivision preliminary plat approval.
      (B) Applicability. Submittal of a concept plan shall be required prior to the consideration of approval of a site plan, subdivision preliminary plat, Conditional Zoning District classification, or special use permit.
   (C)   Concept plan types distinguished.
      (1)   Concept plans associated with an application for a site plan or subdivision preliminary plat approval shall be reviewed by the Ordinance Administrator, who shall provide written comments on the concept plan to the applicant. Once an applicant receives comments on a submitted concept plan, they may then proceed with the preparation of the site plan or subdivision preliminary plat.
      (2)   Concept plans associated with an application for a Conditional Zoning District classification or special use permit shall be considered as an applicant sponsored condition of approval and are further distinguished by the following.
         (i)   In the case of a Conditional Zoning District classification, the Ordinance Administrator shall provide his or her recommendation on the concept plan to the Planning Board, which shall consider the concept plan in making its own recommendation to the Town Council. Following a recommendation from the Planning Board, the Town Council may approve, approve with conditions, or deny approval of a concept plan associated with the application for Conditional Zoning District classification.
         (ii)   In the case of a special use permit, the Ordinance Administrator shall review the concept plan for conformance to the ordinance and forward his or her comments to the Board of Adjustment, which shall consider the concept plan as it makes its decision on approving, conditionally approving, or denying approval of the special use permit.
      (3)   Concept plans associated with an application for a site plan or subdivision preliminary plat in one of the Gateway Districts shall be considered as an applicant sponsored condition of approval. The Ordinance Administrator shall provide his or her recommendation on the concept plan to the Planning Board, which shall consider the concept plan in making its own recommendation to the Town Council. Following a recommendation from the Planning Board, the Town Council may approve, approve with conditions, or deny approval of a concept plan for development in any of the Gateway Districts.
   (D)   Procedures.
      (1)   Preliminary procedures. The preliminary procedures for submission and review of a concept plan are established in § 3.1, Common Review Procedures.
      (2)   Concept plan - site plan or subdivision preliminary plat.
         (i)   Review by Ordinance Administrator. In the case of a concept plan submitted for review in association with a site plan or subdivision preliminary plat, the Ordinance Administrator shall review the concept plan for compliance with the applicable standards set forth in the ordinance and division 3.2.6(E), Concept Plan Standards. Following his or her review, he or she shall submit his or her comments in writing to the applicant, who may then begin the preparation of the site plan or subdivision preliminary plat.
      (3)   Concept plan - Conditional Zoning District classification.
         (i)   Review and recommendation by Ordinance Administrator. In the case of a concept plan submitted in association with an application for Conditional Zoning District classification, the Ordinance Administrator shall review the concept plan for compliance with the applicable standards set forth in the ordinance and division 3.2.6(E), Concept Plan Standards, and prepare a staff report which he or she will forward to the Planning Board for consideration as it makes its recommendation on the Conditional Zoning District classification.
         (ii)   Review and recommendation by Planning Board. Following receipt of the staff report from the Ordinance Administrator, the Planning Board shall review and make a recommendation on the concept plan as part of the Conditional Zoning District classification process following the procedures in division 3.2.3(B)(3).
         (iii)   Review and action by Town Council. Following the receipt of a recommendation from the Planning Board, the Town Council shall review and make its decision on the concept plan as part of the Conditional Zoning District classification process following the procedures in division 3.2.3(B)(4).
      (4)   Concept plan - special use permit.
         (i)   Review by Ordinance Administrator. In the case of a concept plan submitted in association with an application for a special use permit, the Ordinance Administrator shall review the concept plan for compliance with the applicable standards set forth in the ordinance and division 3.2.6(E), Concept Plan Standards, and submit his or her comments to the Board of Adjustment for consideration as it makes its decision on the special use permit application.
         (ii)   Review and action by Board of Adjustment. Following the receipt of comments from the Ordinance Administrator, the Board of Adjustment shall review the concept plan as part of the special use permit application process following the procedures in division 3.2.4(D)(3).
      (5)   Concept plan - Gateway District.
         (i)   Review and recommendation by Ordinance Administrator. In the case of a concept plan submitted in association with an application for site plan or subdivision preliminary plat in a Gateway District, the Ordinance Administrator shall review the concept plan for compliance with the applicable standards set forth in the ordinance and division 3.2.6(E), Concept Plan Standards, and prepare a staff report which he or she will forward to the Planning Board for consideration as it makes its recommendation.
         (ii)   Review and recommendation by Planning Board. Following receipt of the staff report from the Ordinance Administrator, the Planning Board shall review and make a recommendation on the concept plan.
         (iii)   Review and action by Town Council. Following the receipt of a recommendation from the Planning Board, the Town Council shall review and make its decision on the concept plan.
   (E)   Concept plan standards. A concept plan shall be reviewed for compliance with the applicable standards set forth in the ordinance for the particular type of development and the following:
      (1)   Setbacks and lot coverage;
      (2)   Building envelopes for single-family residential development;
      (3)   Building location and orientation for multi-family and nonresidential development;
      (4)   Building massing and roof form;
      (5)   Street layout;
      (6)   Right-of-way width and configuration;
      (7)   Public utility location and sizing;
      (8)   Landscaping;
      (9)   Buffering;
      (10)   Parking and loading;
      (11)   Open space and recreation facility configuration, acceptable uses, and types;
      (12)   Fencing, walls, and screening;
      (13)   Stormwater management;
      (14)   Exterior lighting;
      (15)   Signage/Common Signage Plan;
      (16)   Waste collection facilities;
      (17)   Proposed use(s) and adjoining land use(s);
      (18)   Number and type of residential dwelling units, including density;
      (19)   Minimum lot width; and
      (20)   Type and amount in square feet of nonresidential uses, including floor area ratio.
   Concept plans associated with an application for a Conditional Zoning District classification to a Planned Unit Development District shall also include sufficient information to establish the development standards for the PUD as set forth in division 6.3.6. Concept plans associated with a site plan or subdivision preliminary plat for a parcel in any of the Gateway Districts shall also include sufficient information to establish the development standards as set forth in § 6.5.
   (F)   Effect. Following the review of the concept plan by the Ordinance Administrator, the applicant may:
      (1)   Proceed with the preparation of a site plan or subdivision preliminary plat in cases where concept plan review is required as part of an application for site plan or subdivision preliminary plat approval;
      (2)   Proceed with the consideration of the concept plan, staff report, and conditions of approval by the Planning Board when the concept plan was submitted as part of an application for Conditional Zoning District classification or Gateway District approval; or
      (3)   Proceed with consideration of the concept plan and conditions of approval by the Board of Adjustment when the concept plan was submitted as part of an application for a special use permit.
   (G)   Amendment. A concept plan may only be amended or modified in accordance with the procedures set forth for its initial approval.
   3.2.7   Site plan.
   (A)   Purpose. The purpose of this division is to establish the procedures and standards for the review and approval of a site plan that depicts site and building related details and engineered drawings.
   (B)   Applicability. All development, unless exempted in accordance with division 3.2.7(C), Exemptions, shall be required to have a site plan approved in accordance with this division prior to the issuance of a land development permit.
   (C)   Exemptions. The following development shall be exempted from the requirements of this division:
      (1)   Internal or external construction that does not increase gross floor area, building height, the density or intensity of use, or affect parking requirements;
      (2)   The construction of a single-family dwelling or duplex on an individual lot;
      (3)   The construction or placement of an accessory structure associated with a single-family dwelling or duplex; and
      (4)   Changes in use where there is no associated change in landscaping, buffering, off-street parking requirements, lot coverage, or other external site characteristics.
   (D)   Procedures.
      (1)   Preliminary procedures. The preliminary procedures and requirements for submission and review of a site plan are established in § 3.1, Common Review Procedures.
      (2)   Review of concept plan. The review of a concept plan, in accordance with division 3.2.6, shall be required prior to the consideration of a site plan.
      (3)   Review and decision by Ordinance Administrator. Following the review and approval of a concept plan, the applicant shall prepare a site plan that reflects the configuration and composition depicted in the concept plan. Following the submission of a site plan by an applicant, the Ordinance Administrator shall review and approve, approve with modifications, or deny approval of the site plan based on the standards in division 3.2.7(E), Site Plan Standards.
   (E)   Site plan standards. A site plan shall be approved only upon a finding that it adequately depicts the precise design, location, and profile of all structures, site features, and public facilities proposed for development, as well as all other technical considerations. In addition, the site plan shall demonstrate that all of the following standards are met:
      (1)   The use is allowed in the zoning district in accordance with Table 7-1, Table of Permitted Uses;
      (2)   The development and uses in the site plan comply with § 7.3, Use Specific Standards;
      (3)   The development is consistent with the associated concept plan and applicant sponsored conditions (if applicable).
      (4)   The development proposed in the site plan and its general layout and design comply with all appropriate standards in this ordinance; and
      (5)   The development complies with all other applicable town requirements.
   (F)   Effect of approval. The approval of a site plan allows the applicant to apply for a land development permit to initiate land development activities in accordance with the approved site plan.
   (G)   Expiration. Site plan approval shall automatically expire at the end of two years following initial approval if a building permit has not been issued and construction pursuant to that permit has not commenced for at least one building in the proposed development. A change in ownership shall not affect this time frame.
   (H)   Amendments. A site plan may be amended, extended, or modified only in accordance with the procedures and standards established for its original approval. Changes to any approved site plan following the issuance of a land development permit shall require a re-review of a site plan, may void the land development permit, and may require additional review fees at the discretion of the Ordinance Administrator.
   3.2.8   Stormwater management permit.
   (A)   Purpose. The purpose of this division is to set forth the procedures and requirements for the review and approval of a stormwater management permit that establishes compliance with the standards of § 15.2, Stormwater Requirements for New Development Implementing the Falls Lake Rules.
   (B)   Applicability. All land development activities must have an approved stormwater management permit unless specifically exempted by the development thresholds or general exemption established in division 15.2.4(E)(2). A permit may only be issued subsequent to a properly submitted and reviewed permit application.
   (C)   Procedures.
      (1)   Preliminary procedures. The preliminary procedures and requirements for submission and review of a stormwater management permit application are established in § 3.1, Common Review Procedures.
      (2)   Review and decision by Ordinance Administrator. Following the submission of a complete stormwater management permit application, the Ordinance Administrator shall review and approve, approve with modifications, or deny approval of the stormwater management permit based on the standards in division 3.2.8(E) Stormwater Management Permit Application.
   (D)   Applications for approval.
      (1)   Concept plan and consultation meeting.
   Before a stormwater management permit application is deemed complete, the Ordinance Administrator or developer may request a consultation on a concept plan for the post-construction stormwater management system to be utilized in the proposed development project. This consultation meeting should take place at the time of the preliminary plan of subdivision or other early step in the development process. The purpose of this meeting is to discuss the stormwater management measures necessary for the proposed project, as well as to discuss and assess constraints, opportunities and potential approaches to stormwater management designs before formal site design engineering is commenced. Local watershed plans, open space plans, and other relevant resource protection plans should be consulted in the discussion of the concept plan.
   To accomplish this goal, the following information should be included in the concept plan, which should be submitted in advance of the meeting:
         (i)   Existing conditions/proposed site plans. Existing conditions and proposed site layout sketch plans, which illustrate at a minimum: existing and proposed topography; perennial and intermittent streams; mapping of predominant soils from soil surveys (if available); stream and other buffers and features used in designing buffers and meeting any applicable buffer requirements; boundaries of existing predominant vegetation; proposed limits of clearing and grading; and location of existing and proposed roads, buildings, parking areas, and other impervious surfaces.
         (ii)   Natural resources inventory. A written or graphic inventory of natural resources at the site and surrounding area as it exists prior to the commencement of the project. This description should include a discussion of soil conditions, forest cover, geologic features, topography, wetlands, and native vegetative areas on the site, as well as the location and boundaries of other natural feature protection and conservation areas such as lakes, ponds, floodplains, stream buffers, and other setbacks (e.g., drinking water well setbacks, septic setbacks, and the like). Particular attention should be paid to environmentally sensitive features that provide particular opportunities or constraints for development and stormwater management.
         (iii)   Stormwater Management System Concept Plan. A written or graphic concept plan of the proposed post-development stormwater management system including: preliminary selection and location of proposed engineered stormwater controls; low-impact design elements; location of existing and proposed conveyance systems such as grass channels, swales, and storm drains; flow paths; location of floodplain/floodway limits; relationship of site to upstream and downstream properties and drainages; and preliminary location of any proposed stream channel modifications, such as bridge or culvert crossings.
   (E)   Stormwater management permit application. The stormwater management permit application shall detail how post-development stormwater runoff will be controlled and managed and how the proposed project will meet the requirements of divisions 15.1.3 and 15.2.7, Stormwater Management Standards. All such plans shall be prepared by a registered state professional engineer or a state registered landscape architect or by a person who has been awarded a stormwater BMP inspection and maintenance certification by the North Carolina State University Cooperative Extension. Any such person preparing a plan shall perform services only in their area of competence, and shall verify that the design of all stormwater management facilities and practices meets the submittal requirements for complete applications, that the designs and plans are sufficient to comply with applicable standards and policies found in the Stormwater BMP Design Manual, and that the designs and plans ensure compliance with this ordinance.
   (F)   Effect of approval. Approval authorizes the applicant to go forward with only the specific plans and activities authorized in the permit. The approval shall not be construed to exempt the applicant from obtaining other applicable approvals from local, state, and federal authorities.
   (G)   Certification and “as built” plans.
   Upon completion of a project, and before a certificate of occupancy shall be granted, the applicant shall certify that the completed project is in accordance with the approved stormwater management permit and designs established therewith, and shall submit actual “as-built” plans for all stormwater management facilities or practices after final construction is completed.
   The plans shall show the final design specifications for all stormwater management facilities and practices and the field location, size, depth, and planted vegetation of all measures, controls, and devices, as installed. The designer of the stormwater management measures and plans shall certify, under seal, that the as-built stormwater measures, controls, and devices are in compliance with the approved stormwater management plans and designs and with the requirements of this ordinance. A final inspection and approval by the Ordinance Administrator shall occur before the release of any performance securities.
   (H)   Other permits. No certificate of compliance or occupancy shall be issued by the town or any agency acting on behalf of the town without final as-built plans and a final inspection and approval by the Ordinance Administrator, except where multiple units are served by the stormwater practice or facilities, in which case the town may elect to withhold a percentage of permits or certificates of occupancy until as-built plans are submitted and final inspection and approval has occurred.
   (I)   Expiration.
   An approved plan shall become null and void if the applicant fails to make substantial progress on the site within one year after the date of approval. The Ordinance Administrator may grant a single, one-year extension of this time limit, for good cause shown, upon receiving a written request from the applicant before the expiration of the approved permit.
   In granting an extension, the Ordinance Administrator may require compliance with standards adopted since the original application was submitted unless there has been substantial reliance on the original permit and the change in standards would infringe the applicant’s vested rights.
   3.2.9   Subdivision.
   (A)   Purpose and intent. The purpose of this division and Article 14, Subdivision Standards, are to promote the health, safety, and general welfare of the residents of the town by:
      (1)   Providing for the orderly growth and development of the town;
      (2)   Coordinating streets and roads within proposed subdivisions with the town’s street system, state road network, and all applicable transportation plans;
      (3)   Providing easements and rights-of-way for utilities and future streets;
      (4)   Avoiding congestion and overcrowding, and encouraging the proper arrangement of streets and other transportation infrastructure in relation to existing or planned streets;
      (5)   Ensuring that there is adequate open space and recreation facilities to serve new development; and
      (6)   Ensuring that there is proper recordation of landownership and/or property owner association records where applicable.
   (B)   Applicability. Unless exempted in accordance with division 3.2.9(C), Exemptions, the following forms of development shall be required to have land subdivided in accordance with the procedures and standards of this division prior to the transfer of title or sale of any lots, the issuance of a zoning permit, or the issuance of a building permit for development:
      (1)   The division of land into two or more lots, building sites, or other divisions for the purpose of immediate or future sale, lease, or development;
      (2)   All divisions of land involving the creation of a new street or the change or modification of an existing street;
      (3)   Re-subdivision involving the further division or relocation of lot lines of any lot or lots within an already approved subdivision; and
      (4)   The combination or consolidation of exiting lots of record.
   (C)   Exemptions. The following actions shall be exempt from the requirements of this division 3.2.9:
      (1)   The combination or recombination of portions of previously subdivided and recorded lots where the total number of lots is not increased, and where the lots are equal to or exceed the standards set forth in this ordinance;
      (2)   The public acquisition of land for public use by purchase of strips of land for the widening or opening of streets, placement of utilities, or establishment of park land or greenway trails;
      (3)   The division of land into parcels greater than ten acres in size where no street right-of-way dedication is involved; and
      (4)   The division of a tract in single ownership whose entire area is not greater than two acres into not more than three lots, where no street right-of-way dedication is involved and where the resultant lots are equal to or exceed the standards of the town as shown in this ordinance.
   Plats for subdivisions which are exempt from the requirements of this division shall be submitted to the Ordinance Administrator who shall sign a certificate of exemption (see Appendix B) on the plat. This certificate must be signed prior to recordation of the exempt subdivision plat with the County Register of Deeds.
   (D)   Subdivision preliminary plat (major subdivision).
      (1)   General. A subdivision preliminary plat (major subdivision) establishes the general layout and design for the subdivision. Upon the approval of a subdivision preliminary plat, applicants may begin to install streets, public utilities, and other infrastructure. Following installation and approval of all required infrastructure, applicants may submit an application for a subdivision final plat. Building permits may not be issued before approval and recordation of a subdivision final plat.
      (2)   Applicability. The subdivision preliminary plat (major subdivision) procedures shall be utilized for the subdivision of land where any of the following apply:
         (i)   New public or private streets are proposed;
         (ii)   Changes to existing public rights-of-way are proposed;
         (iii)   New public utilities are required to serve the proposed lots;
         (iv)   Flag lots are created or modified;
         (v)   More than five lots are proposed; or
         (vi)   The total land area contained in the subdivision is more than ten acres.
      (3)   Subdivision preliminary plat content standards. The required contents of a subdivision preliminary plat are shown in Appendix A, Subdivision Plat Content Standards.
      (4)   Review and approval procedures.
         (i)   Preliminary procedures. The preliminary procedures and requirements for submission and review of a subdivision preliminary plat are established in § 3.1, Common Review Procedures.
         (ii)   Review of concept plan. Except for the subdivision activities list in division 3.2.9(C), Exemptions, the submittal and review of a concept plan in accordance with the standards in division 3.2.6, shall be required prior to the consideration of a subdivision preliminary plat.
         (iii)   Review and recommendation by Ordinance Administrator. Following the review of a concept plan, the applicant shall prepare a subdivision preliminary plat that reflects the configuration depicted in the finalized concept plan along with any other required information. Once the complete application and subdivision preliminary plat are submitted, the Ordinance Administrator shall review the application and submit his or her recommendation and comments to the Planning Board prior to the meeting at which they will review the application.
         (iv)   Review and recommendation by Planning Board. Following the receipt of comments and a recommendation from the Ordinance Administrator, the Planning Board shall review the proposed subdivision preliminary plat. The Planning Board shall review the application for consistency with the standards of this ordinance and with the finalized concept plan that was reviewed by the Ordinance Administrator. Within 45 days following its initial review, the Planning Board shall make a recommendation to the Town Council to approve, conditionally approve, or deny approval of the subdivision preliminary plat.
         (v)   Review and action by Town Council. Following the receipt of a recommendation from the Planning Board, the Town Council shall review and make its decision on the submitted subdivision preliminary plat. During its review, the Town Board shall makes its decision to approve, conditionally approve, or deny approval of the preliminary plat based on the standards in division 3.2.9(D)(5), Standards for Approval.
      (5)   Standards for approval. A subdivision preliminary plat shall only be approved upon finding that the application complies with the standards in Article 14, Subdivision Standards, all other relevant provisions of this ordinance, and all other relevant town ordinances, plans, and regulations.
      (6)   Effect of approval. Approval of a subdivision preliminary plat shall constitute approval of the development with the general lot shapes and alignments of streets identified in the phases depicted on the approved preliminary plat. Phases not depicted on an approved subdivision preliminary plat shall not have preliminary plat approval. Approval of a subdivision preliminary plat allows the subdivider to proceed with the submittal of construction drawings for site plan and stormwater management permits the required infrastructure and utilities. Approval of a subdivision preliminary plat does not constitute or guarantee approval of a final plat. The approval of a subdivision preliminary plat is not a personal right, but one which runs with the land, and, therefore, changes in ownership of the subject property shall not alter the effect of the approval.
      (7)   Amendment. A subdivision preliminary plat may be amended or modified only in accordance with the procedures and standards established for its original approval.
      (8)   Installation and inspection of required improvements. Following the construction of all required improvements, or the posting of a performance guarantee for required improvements that are not installed or completed, the subdivider shall submit a written request for inspection of those improvements. When all required public improvements and/or performance guarantees have been approved by the town, the subdivider may apply for subdivision final plat approval.
      (9)   Performance guarantees. In lieu of meeting the requirement for the completion, installation, and dedication of any and all public infrastructure improvements (e.g., underground utilities, streets, sidewalks, storm drainage, trees, landscaping, buffer plantings, street lights, and the like) prior to subdivision final plat approval, the town may accept a performance guarantee in accordance with the standards in this division 3.2.9.
         (i)   Form of performance guarantee. Where required, the owner/developer shall furnish a performance guarantee in any form acceptable to the Town Attorney. Such forms could include the following.
            (a)   Surety performance bond(s). The developer shall obtain a performance bond(s) from a surety bonding company authorized to do business in the state, and approved by the Town Attorney and Ordinance Administrator. The bond shall be payable to the town (or its authorized agent) and shall be in an amount equal to one and one-half times the entire cost, as a certified estimate by a licensed design professional and verified by the Town Engineer, of installing all required improvements. The duration of the bond(s) shall be until such time as the improvements are accepted by the town. Any expenses associated with the cost verification by the town shall be paid entirely by the subdivider.
            (b)   Letter of credit. The developer shall obtain a letter of credit issued by any financial institution licensed to do business in this state. The letter of credit shall be payable to the town (or its authorized agent) and shall be in an amount equal to one and one-fourth times the entire cost, as a certified estimate by a licensed design professional and verified by the Town Engineer, of installing all required improvements. The duration of the letter of credit shall be until such time as the improvements are accepted by the town. Any expenses associated with the cost verification by the town shall be paid entirely by the subdivider.
            (c)   Cash or equivalent security. The developer shall deposit cash, an irrevocable letter of credit, or other instrument readily convertible into cash at face value, either with the town (or its authorized agent) or in escrow with a financial institution designated as an official depository of the town. The amount of deposit shall be equal to one and one-half times the entire cost, as certified and estimated by a licensed design professional, and verified by the Town Engineer, of installing all required improvements.
            (d)   Escrow guarantee. If cash or other instrument is deposited in escrow with a financial institution, then the developer shall file with the town (or its authorized agent) an agreement with the financial institution guaranteeing the following:
               1.   Exclusivity of funds. That the escrow amount will be held in trust until released by the town and may not be used or pledged by the subdivider in any other transaction during the term of the escrow; and
               2.   Immediate release of funds. That in case of a failure on the part of the subdivider to complete the guaranteed improvements, the financial institution shall, upon notification by the town of an estimate of the amount needed to complete the improvements, immediately pay to the town the funds estimated to complete the improvements, up to the full balance of the escrow account, or deliver to the town any other instruments fully endorsed or otherwise made payable in full to the town.
            (e)   Default. Upon failure on the part of the subdivider to complete the required improvements in the time required by this ordinance or as spelled out in the performance bond or escrow agreement, the surety, or financial institution holding the escrow account, shall, if required by the town, pay all or any portion of the bond or escrow fund to the town up to the amount required to complete the improvements based on an estimate by the town. Upon payment, the town, in its discretion, may expend such portion of these funds as it deems necessary to complete all or any portion of the required improvements or to let a contract for the completion of the required improvements. The town shall return to the developer any funds not spent in completing the improvements.
            (f)   Release of security guarantee. The town may release a portion of any security posted after the improvements are completed and recommended for approval by the Ordinance Administrator. The town shall approve or disapprove the improvements within 30 days upon receiving the Ordinance Administrator’s recommendation. When the town approves the improvements, it shall immediately release the portion of the security posted which covers the cost of the improvements approved by the town, as shown in the detailed cost estimate prepared by the Town Engineer.
      (10)   Expiration of approval. Preliminary plat approval shall be valid for a period of 12 months from the date of approval of the plat by the Town Council unless an extension of time is applied for and granted by the Town Council, or unless a longer time period is established under applicable vested rights provisions. Preliminary plats whose approval has expired shall be resubmitted in accordance with the provisions of this division.
      (11)   Approval of final plat not to constitute acceptance by town. The approval of a final plat as described in this ordinance shall not be deemed to constitute or affect the acceptance by the town, any governmental unit or public body of the dedication of any street or other ground, public utility line, or other public facility shown on the plat.
   (E)   Subdivision final plat (major subdivision).
      (1)   General. After the inspection and approval of the required public improvements or the posting of a performance guarantee for improvements that are not installed or completed, the subdivider shall prepare a subdivision final plat for review in accordance with this division 3.2.9. The subdivider shall receive approval of a subdivision final plat prior to the issuance of building permits for structures on lots.
      (2)   Required contents of final plat. The required contents of a subdivision final plat are shown in Appendix A, Subdivision Plat Content Standards.
      (3)   Review and approval procedures.
         (i)   Preliminary procedures. The preliminary procedures and requirements for submission and review of a subdivision final plat are established in § 3.1, Common Review Procedures.
         (ii)   Review and action by Ordinance Administrator. Following the submission of a complete application for final plat approval, the Ordinance Administrator shall review the application and make a decision on approval, approval with modification, or denial of the application in accordance with division 3.2.9(E)(4), Standards for Approval.
      (4)   Standards for approval. A subdivision final plat shall only be approved if the Ordinance Administrator finds the following:
         (i)   The final plat complies fully with the standards in Article 14, Subdivision Standards;
         (ii)   The final plat is in substantial conformity with the approved subdivision preliminary plat;
         (iii)   The final plat indicates the installation, or financial guarantee of the installation, of all required improvements; and
         (iv)   The final plat contains all required certificates, signed by the appropriate authorities.
      (5)   Certification. No subdivision final plat may be recorded unless all relevant certificates, as identified in Appendix B, have been signed by the appropriate officials.
      (6)   Recordation. The subdivider shall file the approved subdivision final plat with the County Register of Deeds and shall provide proof of recordation to the Ordinance Administrator within 30 days after the date of approval or the subdivision final plat shall expire.
   (F)   Minor subdivision.
      (1)   General. The minor subdivision procedure shall be utilized for the subdivision of land into five or fewer lots, provided the development complies with all of the following:
         (i)   The total land area included within the subdivision is ten acres or less;
         (ii)   No new streets, alleys, or other public rights-of-way are created;
         (iii)   No changes are made to the existing streets, alleys, or other rights-of-way;
         (iv)   No new utilities are required to be installed to serve the subdivided land;
         (v)   The division of land complies with Article 14, Subdivision Standards; and
         (vi)   No flag lots are created.
      (2)   Required contents of minor subdivision plat. A minor subdivision plat shall contain the same information as a subdivision final plat as shown in Appendix A, Subdivision Plat Content Standards.
      (3)   Review and approval procedures.
         (i)   Preliminary procedures. The preliminary procedures and requirements for submission and review of a minor subdivision plat are established in § 3.1, Common Review Procedures.
      (4)   Review and action by Ordinance Administrator. Following the receipt of a complete application for minor subdivision approval, the Ordinance Administrator shall review the application and make a decision on approval, approval with modification, or denial of the application in accordance with division 3.2.9(F)(5), Standards for Approval.
      (5)   Standards for approval. A minor subdivision shall be approved upon a finding that the application complies with the standards in Article 14, Subdivision Standards, as well as all other relevant provisions of this ordinance, and all other relevant town ordinances and regulations.
      (6)   Certification. No minor subdivision plat may be recorded unless all relevant certificates, as identified in Appendix B, have been signed by the appropriate authorities.
      (7)   Recordation. The subdivider shall file the approved minor subdivision plat with the County Register of Deeds, and shall provide proof of recordation to the Ordinance Administrator within 30 days after the date of approval or the approved plat shall expire.
      (8)   Amendment. A minor subdivision plat may be amended or modified only in accordance with the procedures and standards established for its original approval.
   (G)   Recombination plat.
      (1)   General. This division establishes the procedure for the review and approval of a recombination plat, or the resubdivision or recombination of existing lots located in an approved and recorded plat.
      (2)   Required contents of recombination plat. A recombination plat shall contain the same information as a subdivision final plat as shown in Appendix A, Subdivision Plat Content Standards.
      (3)   Review and approval procedures.
         (i)   Preliminary procedures. The preliminary procedures and requirements for submission and review of a recombination plat are established in § 3.1, Common Review Procedures.
         (ii)   Review and action by Ordinance Administrator. Following the receipt of a complete application for recombination plat approval, the Ordinance Administrator shall review the application and make a decision on approval, approval with modification, or denial of the application in accordance with division 3.2.9(G)(4), Standards for Approval.
      (4)   Standards for approval. An application for a recombination plat shall be approved upon a finding of the Ordinance Administrator that the application complies with the following:
         (i)   All lots comply with the standards and requirements of this ordinance;
         (ii)   Drainage, easements, and rights-of-way shall not be changed;
         (iii)   No existing lots shall be rendered nonconforming;
         (iv)   The rear portion of a lot shall not be subdivided from the front part unless the original lot had frontage on two streets; and
         (v)   The recombination of land shall result in lots that maintain the character of the surrounding area in terms of size, configuration, and general lot shape.
      (5)   Certification. No recombination plat may be recorded unless all relevant certificates, as identified in Appendix B, have been signed by the appropriate authorities.
      (6)   Recordation. The subdivider shall file the approved recombination plat with the County Register of Deeds, and shall provide proof of recordation to the Ordinance Administrator within 30 days after the date of approval or the approved plat shall expire.
   3.2.10   Land development permit.
   (A)   Purpose. A land development permit shall be required in accordance with the provisions of this division 3.2.10 in order to ensure that proposed development complies with the standards of this ordinance, and to otherwise protect the public health, safety, and welfare of the citizens of the town.
   (B)   Applicability. The provisions of this division 3.2.10 shall be applicable to all development within the town’s jurisdiction. No building, sign, or other structure shall be erected, moved, extended, enlarged, or structurally altered, any building permit be issued by the county or any other development activity commence until the Ordinance Administrator has issued a land development permit in accordance with this division 3.2.10.
   (C)   Procedure.
      (1)   Preliminary procedures. The preliminary procedures and requirements for submission and review of a land development permit application are established in § 3.1, Common Review Procedures.
      (2)   Review and action by Ordinance Administrator. The Ordinance Administrator shall review and approve or deny an application for a land development permit in accordance with the standards in division 3.2.10(C)(3), Land Development Permit Standards. If the application is denied, the reasons for denial shall be provided to the applicant in writing.
      (3)   Land development permit standards. A land development permit shall be approved upon a finding by the Ordinance Administrator that the application fully complies with all relevant standards of this ordinance, as well as all other applicable town requirements and applicable conditions of approval if any were imposed as part of a preceding approval for the proposed development.
   (D)   Appeals. The appeal of a decision by the Ordinance Administrator on the issuance of a land development permit shall be heard by the Board of Adjustment in accordance with division 3.2.13, Appeals of Administrative Decisions.
   (E)   Expiration.
      (1)   For development activity that requires a building permit, the land development permit issued for that activity shall expire and be void six months after the date of its issuance if a building permit has not yet been issued.
      (2)   For development activity that does not require a building permit, the land development permit shall expire and be void unless the activity authorized by the land development permit has commenced within six months of the date of its issuance.
   3.2.11   Floodplain development permit.
   (A)   Purpose. The purpose of this division 3.2.11 is to establish the review and approval procedures for floodplain development permits in order to ensure that development occurs in compliance with the requirements of Article 16, Flood Damage Prevention.
   (B)   Applicability. All land development activities proposed for lands which lie within a special flood hazard area must obtain a floodplain development permit prior to application for a land development permit.
   (C)   Procedures.
      (1)   Preliminary procedures. The preliminary procedures and requirements for submission and review of a floodplain development permit are established in § 3.1, Common Review Procedures.
      (2)   Review and action by Ordinance Administrator. Following the receipt of a complete application for a floodplain development permit, the Ordinance Administrator shall review the application and either approve, approve with modifications, or deny approval of the application based on the standards in 3.2.11(D), Standards for Approval. If the application is denied, the Ordinance Administrator shall state the reasons for denial in writing.
   (D)   Standards for approval. The Ordinance Administrator shall only approve an application for a floodplain development permit if he or she finds that it meets all of the standards set forth in § 16.7, Provisions for Flood Hazard Reduction.
   (E)   Required contents of floodplain development permit application. All applications for floodplain development permits shall be accompanied by the following specific information:
      (1)   A plot plan drawn to scale which shall include, but shall not be limited to, the following specific details of the proposed floodplain development:
         (i)   The nature, location, dimensions, and elevations of the area of development/disturbance; existing and proposed structures, utility systems, grading/pavement areas, fill materials, storage areas, drainage facilities, and other development;
         (ii)   The boundary of the Special Flood Hazard Area as delineated on the FIRM or other flood map as determined in division 16.5.2, or a statement that the entire lot is within the Special Flood Hazard Area;
         (iii)   Flood zone(s) designation of the proposed development area as determined on the FIRM or other flood map as determined in division 16.5.2;
         (iv)   The boundary of the floodway(s) or non-encroachment area(s) as determined in division 16.5.2;
         (v)   The base flood elevation (BFE), where provided, as set forth in divisions 16.5.2 or 16.7.4 as appropriate;
         (vi)   The old and new location of any watercourse that will be altered or relocated as a result of proposed development; and
         (vii)   Proposed elevation, and method thereof, of all development within a Special Flood Hazard Area, including, but not limited to:
            (a)   Elevation in relation to mean sea level of the proposed reference level (including basement) of all structures;
            (b)   Elevation in relation to mean sea level to which any nonresidential structure in Zone AE, A, or AO will be floodproofed; and
            (c)   Elevation in relation to mean sea level to which any proposed utility systems will be elevated or floodproofed.
      (2)   If floodproofing, a floodproofing certificate (FEMA Form 81-65) with supporting data and an operational plan that includes, but is not limited to, installation, exercise, and maintenance of floodproofing measures;
      (3)   A foundation plan, drawn to scale, which shall include details of the proposed foundation system to ensure all provisions of this ordinance are met. These details include, but are not limited to:
         (i)   The proposed method of elevation, if applicable (i.e., fill, solid foundation perimeter wall, solid backfilled foundation, open foundation on columns/posts/piers/piles/shear walls); and
         (ii)   Openings to facilitate automatic equalization of hydrostatic flood forces on walls in accordance with Article 16, division 16.7.2(D)(4) when solid foundation perimeter walls are used in Zones A and AE
      (4)   Usage details of any enclosed areas below the lowest floor;
      (5)   Plans and/or details for the protection of public utilities and facilities such as sewer, gas, electrical, and water systems to be located and constructed to minimize flood damage;
      (6)   Certification that all other local, state, and federal permits required prior to floodplain development permit issuance have been received;
      (7)   Documentation for placement of recreational vehicles and/or temporary structures, when applicable, to ensure that the provisions of divisions 16.7.2(F) and 16.7.2(G) of this ordinance are met; and
      (8)   A description of proposed watercourse alteration or relocation, when applicable, including an engineering report on the effects of the proposed project on the flood-carrying capacity of the watercourse and the effects to properties located both upstream and downstream; and a map (if not shown on plot plan) showing the location of the proposed watercourse alteration or relocation.
   (F)   Floodplain development permit contents. Floodplain development permits shall include the following information:
      (1)   A description of the development to be permitted under the floodplain development permit;
      (2)   The Special Flood Hazard Area determination for the proposed development in accordance with available data specified in division 16.5.2;
      (3)   The regulatory flood protection elevation required for the reference level and all attendant utilities;
      (4)   The regulatory flood protection elevation required for the protection of all public utilities;
      (5)   All certification submittal requirements with timelines;
      (6)   A statement that no fill material or other development shall encroach into the floodway or non-encroachment area of any watercourse, as applicable; and
      (7)   The flood openings requirements, if in Zones A, AO, AE, or A99
   (G)   Required certifications.
      (1)   Elevation certificates.
         (i)   An elevation certificate (FEMA Form 81-31) is required prior to the actual start of any new construction. It shall be the duty of the permit holder to submit to the Ordinance Administrator a certification of the elevation of the reference level, in relation to mean sea level. The Ordinance Administrator shall review the certificate data submitted. Deficiencies detected by such review shall be corrected by the permit holder prior to the beginning of construction. Failure to submit the certification or failure to make required corrections shall be cause to deny a floodplain development permit.
         (ii)   A final as-built elevation certificate (FEMA Form 81-31) is required after construction is completed and prior to certificate of occupancy issuance. It shall be the duty of the permit holder to submit to the Ordinance Administrator a certification of final as-built construction of the elevation of the reference level and all attendant utilities. The Ordinance Administrator shall review the certificate data submitted. Deficiencies detected by such review shall be corrected by the permit holder immediately and prior to certificate of occupancy issuance. In some instances, another certification may be required to certify corrected as-built construction. Failure to submit the certification or failure to make required corrections shall be cause to withhold the issuance of a certificate of occupancy.
      (2)   Floodproofing certificate.
         (i)   If nonresidential floodproofing is used to meet the regulatory flood protection elevation requirements, a floodproofing certificate (FEMA Form 81-65), with supporting data, an operational plan, and an inspection and maintenance plan are required prior to the actual start of any new construction. It shall be the duty of the permit holder to submit to the Ordinance Administrator a certification of the floodproofed design elevation of the reference level and all attendant utilities, in relation to mean sea level. Floodproofing certification shall be prepared by or under the direct supervision of a professional engineer or architect and certified by same. The Ordinance Administrator shall review the certificate data, the operational plan, and the inspection and maintenance plan. Deficiencies detected by such review shall be corrected by the applicant prior to permit approval. Failure to submit the certification or failure to make required corrections shall be cause to deny a floodplain development permit. Failure to construct in accordance with the certified design shall be cause to withhold the issuance of a certificate of occupancy.
         (ii)   If a manufactured home is placed within Zone A, AO, AE, or A1-30 and the elevation of the chassis is more than 36 inches in height above grade, an engineered foundation certification is required.
         (iii)   If a watercourse is to be altered or relocated, a description of the extent of watercourse alteration or relocation; a professional engineer’s certified report on the effects of the proposed project on the flood-carrying capacity of the watercourse and the effects to properties located both upstream and downstream; and a map showing the location of the proposed watercourse alteration or relocation shall all be submitted by the permit applicant prior to issuance of a floodplain development permit.
   (H)   Certification exemptions. The following structures, if located within Zone A, AO, AE, or A99 re exempt from the elevation/floodproofing certification requirements specified in items (a) and (b) of this subsection:
      (1)   Recreational vehicles meeting requirements of division 16.7.2(F);
      (2)   Temporary structures meeting requirements of division 16.7.2(G); and
      (3)   Accessory structures less than 150 square feet meeting requirements of division 16.7.2(H).
   3.2.12   Tree preservation and protection plan.
   (A)   Purpose. The purpose of this division 3.2.12 is to establish the review and approval procedures for tree preservation and protection plans submitted in accordance with Article 11, Tree Preservation and Protection.
   (B)   Applicability. A tree preservation and protection plan shall be required for all land development activities that are seeking tree preservation incentives as set forth in § 11.3, Tree Preservation Incentives.
   (C)   Procedure.
      (1)   Preliminary procedures. The preliminary procedures and requirements for submission and review of a tree preservation and protection plan are established in § 3.1, Common Review Procedures.
         (i)   Review and action by Ordinance Administrator. Following the receipt of a complete tree preservation and protection plan application, the Ordinance Administrator shall review the application and either approve, approve with modifications, or deny approval of the application based on the standards in 3.2.12(D), Standards for Approval. If the application is denied, the Ordinance Administrator shall state the reasons for denial in writing.
   (D)   Standards for approval. To receive approval, and subsequently incentives and credits, the tree preservation and protection plan must fully comply with all standards for tree preservation and protection as set forth in Article 11.
   (E)   Effect of approval. Following approval, the developer may begin the preparation of the site specific plan that incorporates the approved tree preservation and protection plan and the credits received for compliance with the tree preservation and protection standards.
   (F)   Final inspection required. Following the completion of land development activity, the Ordinance Administrator shall inspect the site for final compliance with the tree preservation and protection plan. If it is found that any violations of the approved plan have occurred, then any credits or incentives associated with those violated portions of the plan shall be revoked and full compliance shall be required in place of those revoked credits or incentives.
   (G)   Expiration of approval. Approved tree preservation and protection plans shall expire one year after their initial approval if development activity has not commenced. If an approved plan expires, any associated incentives and/or credits shall be revoked. Credits or incentives may only be reinstated in accordance with the approval procedures for the original submission of a tree preservation and protection plan.
   3.2.13   Appeals of administrative decisions and penalties imposed under Article 15.
   (A)   Right of appeal. Any person who has standing under G.S. § 160A-393(d) or the town may appeal a decision to the Board of Adjustment. Penalties imposed under Article 15 pursuant to the authority granted to the town under G.S. § 143-215.6A may also be appealed to the Board of Adjustment.
      (B) Appeal standards and procedures.
      (1)   Initiation. An appeal is taken by filing a notice of appeal with the Town Clerk. The notice of appeal shall state the grounds for the appeal.
      (2)   Notice of decision. The official who made the decision shall give written notice to the owner of the property that is the subject of the decision and to the party who sought the decision, if different from the owner. The written notice shall be delivered by personal delivery, electronic mail, or by first-class mail.
      (3)   Time to file an appeal. The owner or other party shall have 30 days from the receipt of the written notice within which to file an appeal. Any other person with standing to appeal shall have 30 days from the receipt from any source of actual or constructive notice of the decision within which to file an appeal.
      (4)   Constructive notice; posting. It shall be conclusively presumed that all persons with standing to appeal have constructive notice of the decision from the date a sign containing the words “Zoning Decision” or “Subdivision Decision” in letters at least six inches high and identifying the means to contact an official for information about the decision is prominently posted on the property that is the subject about the decision, provided the sign remains on the property for at least ten days. Posting of signs is not the only form of constructive notice. Any such posting shall be the responsibility of the landowner or applicant. Verification of the posting shall be provided to the official who made the decision. Absent an ordinance provision to the contrary, posting of signs shall not be required.
      (5)   Transmission of record. The official who made the decision shall transmit to the Board of Adjustment all documents and exhibits constituting the record upon which the action appealed from is taken. The official shall also provide a copy of the record to the appellant and to the owner of the property that is the subject of the appeal if the appellant is not the owner.
      (6)   Schedule of notice and hearing.
         (i)   Upon receipt of a notice of appeal, the Clerk to the Board of Adjustment shall schedule a quasi-judicial hearing and provide public notification in accordance with the standards in § 3.1, applicable to quasi-judicial hearings.
         (ii)   Subject to the provisions of 3.2.13(D), the Board of Adjustment shall hear the appeal within a reasonable time.
      (7)   Hearing and decision by Board of Adjustment. The official who made the decision shall be present at the hearing as a witness. At the hearing, the person making the appeal may appear in person or by agent or attorney, and shall state the grounds for the appeal and identify any materials or evidence from the record to support the appeal. The appellant shall not be limited at the hearing to matters stated in the notice of appeal. If any party or the town would be unduly prejudiced by the presentation of matters not presented in the notice of appeal, the Board of Adjustment shall continue the hearing. In making its determination, the Board of Adjustment shall consider the application, the relevant support materials, and the testimony given at the public hearing. Within 30 days following the close of the public hearing, the Board of Adjustment may reverse or affirm, wholly or partly, or may modify the decision appealed from and shall make any order, requirement, decision, or determination that ought to be made based on the record, and the requirements and standards of this ordinance. The Board of Adjustment shall have all the powers of the official who made the decision. A majority of the members of the Board of Adjustment who are eligible to vote shall be required to determine an appeal of a decision of an administrative official charged with enforcement of the LDO, any appeal arising out of the LDO, or any appeal made in the nature of certiorari as set forth in G.S. § 160A-388(e)(1). All decisions shall be in accordance with division 3.1.13, Quasi-Judicial Decisions.
   (C)   Effect of appeal. An appeal of a notice of violation or other enforcement order stays enforcement of the action appealed from unless the official who made the decision certifies to the Board of Adjustment after the notice of appeal has been filed, that because of the facts stated in an affidavit, a stay would cause imminent peril to life or property or because the violation is transitory in nature, a stay would seriously interfere with enforcement of the ordinance. In that case, enforcement proceedings shall not be stayed except by a restraining order, which may be granted by a court. If enforcement proceedings are not stayed, the appellant may file with the official a request for an expedited hearing of the appeal, and the Board of Adjustment shall meet to hear the appeal within 15 days after such a request is filed. Notwithstanding the foregoing, appeals of decisions granting a permit or otherwise affirming that a proposed use of property is consistent with the ordinance shall not stay further review of an application for permits or permissions to use such property; in these situations the appellant may request and the Board of Adjustment may grant a stay of a final decision of permit applications or building permits affected by the issue being appealed.
   (D)   Appeals in the nature of certiorari. When hearing an appeal pursuant to G.S. § 160A-400.9(e) or any other appeal in the nature of certiorari, the hearing shall be based on the record below and the scope of review shall be as provided in G.S. § 160A-393(k).
   (E)   Other forms of dispute resolution. The parties to an appeal that has been made under division 3.2.13, Appeals of Administrative Decisions, may agree to mediation or other forms of alternative dispute resolution.
   3.2.14   Establishment of vested rights.
   (A)   Purpose. The purpose of this division is to implement the provisions of G.S. § 160A-385.1 for the establishment of a statutory zoning vested right upon the approval of a site specific development plan.
   (B)   Applicability. Vested rights shall only be available to a landowner with a legally established and approved site specific development plan. For the purposes of this division, a site specific development plan shall include the following:
      (1)   Development subject to an approved special use permit;
      (2)   Development subject to a subdivision preliminary plat;
      (3)   Development subject to a site plan; and
      (4)   Land subject to a Conditional Zoning District classification.
   (C)   Procedure.
      (1)   Preliminary procedures. The preliminary procedures and requirements for submission and review of an application are established in § 3.1, Common Review Procedures.
      (2)   Review and recommendation by Planning Board. Following review by the Ordinance Administrator, the application shall be referred to the Planning Board for review and recommendation. During the meeting, the Planning Board shall consider the application, the relevant support materials, and any public comments given on the application. Within 45 days of the first meeting on an application, the Planning Board shall make a written recommendation to the Town Council. In addition to making a recommendation as to approval or denial of the application and the appropriate period of time to vest a site-specific development plan, the Planning Board may also recommend the imposition of conditions on the approval in accordance with division 3.1.15, Conditions of Approval. In no case shall the application proceed to the public hearing before the Town Council without a recommendation by the Planning Board.
      (3)   Review and decision by Town Council. After the receipt of a recommendation from the Planning Board, public notification, and the scheduling of a public hearing, the Town Council shall conduct a public hearing on the application. At the public hearing, the Town Council shall consider the application, the relevant support materials, the recommendation of the Planning Board, and the testimony given at the public hearing. After the close of the public hearing, the Town Council shall, by four-fifths majority of those present and eligible to vote, approve, approve with conditions, or deny the application based on the standards in division 3.2.14(D), Vested Rights Standards. In the event the application is approved, the Town Council shall establish the vesting period, which shall not exceed a maximum of five years from the date of approval of the establishment of vested rights.
   (D)   Vested rights standards. The Town Council shall only grant vested rights in accordance with this division 3.2.14 after making the following findings of fact:
      (1)   The site specific development plan was lawfully established and approved in the appropriate manner by the appropriate decision-making body;
      (2)   The site specific development plan has not expired;
      (3)   All required variances, if any, included as a condition of the approval of a site specific development plan have been obtained; and
      (4)   The site specific development plan provides sufficient information to establish the types and intensity of proposed development with reasonable certainty.
   In approving the establishment of vested rights, the Town Council may extend the two-year vested rights period to a period of up to five years, where warranted in light of all relevant circumstances, including, but not limited to, the size and phasing of development, economic cycles, and market conditions.
   3.2.16   Special intensity allocation.
   (A)   Purpose. The purpose of this division 3.2.16 is to set forth the procedures and requirements for the review and approval of a special intensity allocation in compliance with the standards of § 15.1, Water Supply Watershed Protection Rules.
   (B)   Applicability. SIA can only be requested in WS-II-NSW-P.
   (C)   Procedure.
      (1)   Preliminary procedures. The preliminary procedures and requirements for submission and review of an application are established in § 3.1, Common Review Procedures.
      (2)   Review and decision by Ordinance Administrator. Following the submission of a complete special intensity allocation application, the Ordinance Administrator shall review and approve, or deny approval of the special intensity allocation based on the standards in division 15.1.3, Development Regulations. Projects must, to the maximum extent practicable, minimize built-upon surface area, direct stormwater away from surface waters, and incorporate stormwater control measures to minimize water quality impacts.
   (D)   Standards for approval. The special intensity allocation application shall detail how post-development stormwater runoff will be controlled and managed and how the proposed project will meet the requirements of Article 15, Watershed Protection. All such plans shall be prepared by a qualified registered state professional engineer and/or surveyor, soil scientist, or landscape architect. The engineer, surveyor, soil scientist, or landscape architect shall perform services only in their area of competence, and shall verify that the design of all stormwater management facilities and practices meets the submittal requirements for complete applications, that the designs and plans are sufficient to comply with applicable standards and policies found in the Stormwater Design Manual, and that the designs and plans ensure compliance with this ordinance.
   (E)   Effect of approval. Approval authorizes the applicant to apply for a stormwater management permit for the specific project authorized under the special intensity allocation. The approval shall not be construed to convey any land disturbance activities, or exempt the applicant from obtaining appropriate land development permits, stormwater management permits, or other applicable approvals from local, state, and federal authorities.
   (F)   Expiration. Special intensity allocation approval shall automatically expire at the end of two years following initial approval if a building permit has not been issued and construction pursuant to that permit has not commenced for at least one building in the proposed development. A change in ownership shall not affect this time frame.