§ 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, 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)   Downzoning. No amendment to zoning regulations or a zoning map that downzones property in accordance with the definition of downzoning included in this ordinance and consistent with the definition provided in G.S. § 160D-601(d) shall be initiated nor is it enforceable without the written consent of all property owners whose property is the subject of the downzoning amendment, unless the downzoning amendment is initiated by the town.
      (E)   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.
      (F)   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.
            (i)   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 a reasonable period of time, the Planning Board shall make a written recommendation to the Town Council.
            (ii)   In making its recommendation, the Planning Board shall advise and comment on whether the proposed action is consistent with any comprehensive plan that has been adopted and any other officially adopted plan that is applicable, in accordance with G.S. § 160D-604(d).
            (iii)   The Planning Board shall provide a written recommendation to the governing board that addresses plan consistency and other matters as deemed appropriate by the Planning Board, but a comment by the Planning Board that a proposed amendment is inconsistent with the comprehensive plan shall not preclude consideration or approval of the proposed amendment by the governing board.
            (iv)   If a zoning map amendment proposes to change the zoning designation of more than 50 properties, owned by at least 50 different property owners, and therefore qualifies as a large-scale rezoning under G.S. § 160D-602(b), the Planning Board statement describing plan consistency may address the overall rezoning and describe how the analysis and policies in the relevant adopted plans were considered in the recommendation made.
         (4)   Review and action by Town Council. Following the receipt of a recommendation from the Planning Board, the Town Council shall conduct a legislative 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 legislative 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.
         (5)   Council plan consistency review.
            (i)   Regardless of the decision on the application, the Town Council shall approve a brief statement describing whether its action is consistent or inconsistent with the adopted comprehensive plan.
            (ii)   If a zoning map amendment is adopted and the action was deemed inconsistent with the adopted plan, the zoning amendment shall have the effect of also amending the future land use map in the approved plan, and no additional request or application for a plan amendment shall be required.
            (iii)   If a zoning map amendment proposes to change the zoning designation of more than 50 properties, owned by at least 50 different property owners, and therefore qualifies as a large-scale rezoning under G.S. § 160D-602(b), the governing board statement describing plan consistency may address the overall rezoning and describe how the analysis and policies in the relevant adopted plans were considered in the action taken.
         (6)   Council reasonableness review.
            (i)   When adopting or rejecting any petition for a zoning map amendment, a statement analyzing the reasonableness of the proposed rezoning shall be approved by the governing board. This statement of reasonableness may consider, among other factors:
               (a)   The size, physical conditions, and other attributes of the area proposed to be rezoned;
               (b)   The benefits and detriments to the landowners, the neighbors, and the surrounding community;
               (c)   The relationship between the current actual and permissible development on the tract and adjoining areas and the development that would be permissible under the proposed amendment;
               (d)   Why the action taken is in the public interest; and
               (e)   Any changed conditions warranting the amendment.
            (ii)   If a zoning map amendment proposes to change the zoning designation of more than 50 properties, owned by at least 50 different property owners, and therefore qualifies as a large-scale rezoning under G.S. § 160D-602(b), the governing board statement on reasonableness may address the overall rezoning.
            (iii)   The statement of reasonableness and the plan consistency statement required by this section may be approved as a single statement.
         (7)   Citizen comment. If anyone submits a written statement regarding a proposed zoning map amendment to the Town Clerk within two days of the date the matter is to be voted on by the Town Council, the Town Clerk shall deliver the written statement to the Town Council, who may, at it its sole discretion, take the written statement under advisement.
      (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 comprehensive plan, 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. 
               (i)   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 a reasonable period of time, the Planning Board shall make a written recommendation to the Town Council.
               (ii)   In making its recommendation, the Planning Board shall advise and comment on whether the proposed action is consistent with any comprehensive plan that has been adopted and any other officially adopted plan that is applicable, in accordance with G.S. § 160D-604(d).
               (iii)   The Planning Board shall provide a written recommendation to the governing board that addresses plan consistency and other matters as deemed appropriate by the Planning Board, but a comment by the Planning Board that a proposed amendment is inconsistent with the comprehensive plan shall not preclude consideration or approval of the proposed amendment by the governing board.
            (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.
            (5)   Council consistency review. Regardless of the decision on the application, the Town Council shall approve a brief statement describing whether its action is consistent or inconsistent with the adopted comprehensive plan.
            (6)   Citizen comment. If anyone submits a written statement regarding a proposed land development ordinance text amendment to the Town Clerk within two days of the date the matter is to be voted on by the Town Council, the Town Clerk shall deliver the written statement to the Town Council, who may, at it its sole discretion, take the written statement under advisement.
      (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 comprehensive plan, 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. Applications for a conditional zoning district application shall be signed by all landowners of the property subject to the request.
            (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. Establishment of development identified in a concept plan may not take place until a site plan, in substantial conformity with the approved concept plan, is approved in accordance with division 3.2.7, Site Plan. An applicant may choose to file a site plan with a Conditional Zoning District classification, which shall be reviewed by the Ordinance Administrator prior to consideration by the Planning Board. In cases where a Conditional Zoning District classification application includes a site plan, the Town Council shall render a decision on the site plan. In cases where a site plan is submitted, all stormwater and public infrastructure aspects must comply with all applicable town and governmental agency requirements before the site plan may be approved.
            (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 a reasonable period of time, the Planning Board shall make a written recommendation to the Town Council. This shall include a plan consistency review following the procedures in § 3.2.1(F)(3).
            (4)   Review and action by Town Council. Following the receipt of a recommendation from the Planning Board, the Town Council shall hold a legislative 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. This shall include a plan consistency review following the procedures in § 3.2.1(F)(5) and a reasonableness review following the procedures in § 3.2.1(F)(6).
      (C)   Conditions. Specific conditions of approval may be proposed by the petitioner or the town.
         (1)   Only those conditions approved by the town and consented to by the petitioner in writing may be incorporated into the zoning regulations.
         (2)   All conditions shall be expressly set forth in the motion by the decision-making body to approve the development application.
         (3)   Unless consented to by the petitioner in writing, the town may not require, enforce, or incorporate into the zoning regulations any condition or requirement not authorized by otherwise applicable law, including, without limitation, taxes, impact fees, building design elements within the scope of G.S. § 160D-702(b), driveway-related improvements in excess of those allowed in G.S. §§ 136-18(29) and 160A-307, or other unauthorized limitations on the development or use of land.
         (4)   Conditions and site-specific standards imposed in a conditional district shall be limited to those that address the conformance of the development and use of the site to local government ordinances, plans adopted pursuant to G.S. § 160D-501, or the impacts reasonably expected to be generated by the development or use of the site.
         (5)   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.
         (6)   No condition shall be less restrictive than the parallel Base Zoning District or any applicable Overlay District standards.
         (7)   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.
         (8)   No changes in the concept plan, site 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.
         (9)   In addition to any conditions proposed by the applicant, the Town Council may attach any additional conditions in accordance with division 3.1.23, 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.”
      (F)   Changes to an approved conditional zoning. The owners of individual parcels may apply for a minor deviation or an amendment so long as the change would not result in other properties failing to meet the terms of the conditions. Any approved changes shall only be applicable to those properties whose owners petitioned for the change.
      (G)   Minor deviation. The Ordinance Administrator is authorized to review and approve a minor deviation to a concept plan, site plan, or approved conditions if the proposed revision meets all of the following limitations:
         (1)   It does not involve a change in uses permitted or the density of overall development permitted;
         (2)   It complies with the intent of both the underlying zoning standards and other applicable conditions of the approval; and
         (3)   It involves 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.
   For example, minor deviations shall include, but not be limited to, the following if they comply with the provisions in (G)(1), (G)(2), and (G)(3) in this subsection:
            (a)   Driveway relocations;
            (b)   Structure floor plan revisions;
            (c)   Facility design modifications for amenities and other site features;
            (d)   Adjustments to road configuration or internal circulation;
            (e)   Adjustments to building location;
            (f)   Minor adjustments to landscaping;
            (g)   Adjustments to lot configuration; and
            (h)   Adjustments to utility alignment and/or stormwater facilities.
      (H)   Amendment. Changes that do not qualify as minor deviations shall be amendments that may only be considered in accordance with the procedure used to establish the Conditional Zoning District.
      (I)   Expiration.The town may initiate a zoning map amendment in accordance with division 3.2.1 to remove a Conditional Zoning District classification and revert the land to its prior conventional zoning district classification (or the closest corresponding conventional zoning district) 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.
      (J)   Extension. Upon written application by the owner, submitted at least 30 days prior to the expiration of the Conditional Zoning District classification, and in light of all relevant circumstances, including, but not limited to, extreme weather events, economic cycles, and market conditions, 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 may result in the town initiating a zoning map amendment to remove the Conditional Zoning District classification and revert the land to its prior conventional zoning district classification (or the closest corresponding conventional zoning district).
   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. Establishment of a special use identified in a concept plan may not take place until a site plan, in substantial conformity with the approved concept plan, is approved in accordance with division 3.2.7, Site Plan. An applicant may choose to file a site plan with a special use permit application, which shall be reviewed by the Ordinance Administrator prior to consideration by the Board of Adjustment. In cases where a special use permit application includes a site plan, the Board of Adjustment shall render a decision on the site plan. In cases where a site plan is submitted, all stormwater and public infrastructure aspects must comply with all applicable town and governmental agency requirements before the site plan may be approved.
            (3)   Action by Board of Adjustment. After proper notice and scheduling of a public hearing following the procedures in §§ 3.1.12 and 3.1.13, the Board of Adjustment shall conduct a quasi-judicial public hearing on the application following the procedures in §§ 3.1.14 through 3.1.21. 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. § 160D-406(i), 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 and safeguards on the permit approval in accordance with G.S. § 160D-705(c).
         (1)   All conditions that are included as part of the approval shall be consented to in writing by the landowner and the permit applicant before the special use permit will be issued.
         (2)   Where appropriate, such conditions may include requirements that street and utility rights-of-way be dedicated to the public and that provision be made for recreational space and facilities.
         (3)   Conditions and safeguards imposed under this subsection shall not include requirements for which the local government does not have authority under statute to regulate nor requirements for which the courts have held to be unenforceable if imposed directly by the local government, including, without limitation, taxes, impact fees, building design elements within the scope of G.S. § 160D-702(b), driveway-related improvements in excess of those allowed in G.S. §§ 136-18(29) and 160A-307, or other unauthorized limitations on the development or use of land.
      (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 substantially commenced, as defined in this ordinance; or
            (ii)   The development approved by the special use permit is discontinued and not resumed for a period of 24 months.
      (K)   Extension. Upon written application submitted at least 30 days prior to the expiration of the permit period by the applicant, and in light of all relevant circumstances, including, but not limited to, extreme weather events, economic cycles, and market conditions, 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. The Ordinance Administrator is authorized to review and approve a minor deviation to a concept plan, site plan, or approved conditions if the proposed revision meets all of the following limitations:
         (1)    It does not involve a change in uses permitted or the density of overall development permitted;
         (2)   It complies with underlying zoning standards and other applicable conditions of the approval; and
         (3)   It involves 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.
   For example, minor deviations shall include, but not be limited to, the following if they comply with the provisions in (L)(1), (L)(2) and (L)(3) in this subsection:
            (a)   Driveway relocations;
            (b)   Structure floor plan revisions;
            (c)   Facility design modifications for amenities and other site features;
            (d)   Minor adjustments to road configuration or internal circulation;
            (e)   Minor adjustments to building location;
            (f)   Minor adjustments to landscaping;
            (g)   Minor adjustments to lot configuration; and
            (h)   Minor adjustments to utility alignment.
      (M)   Amendments.
         (1)   Changes to a special use permit that do not qualify as minor deviations may only be made in accordance with the procedures and standards established for the original approval of a special use permit.
         (2)   If multiple parcels of land are subject to a special use permit, the owners of individual parcels may apply for a permit modification so long as the modification would not result in other properties failing to meet the terms of the special use permit or regulations. Any modifications approved apply only to those properties whose owners apply for the modification.
   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. § 160D-406, 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 regulation. 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. A variance may be granted when necessary and appropriate to make a reasonable accommodation under the Federal Fair Housing Act for a person with a disability. 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 regulation, 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. All conditions that are included as part of the approval shall be consented to in writing by the landowner and the permit applicant, if different from the landowner, before the variance is issued.
      (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).
            (iv)   Subsequent site plan and/or subdivision review. Development depicted in a concept plan shall also be required to undergo subdivision review in accordance with division 3.2.9, Subdivision, and/or site plan review in accordance with division 3.2.7, Site Plan. Subdivision plats or site plans shall be in substantial conformity with the approved concept plan.
            (v)   Site plan alternative to a concept plan. An applicant for a conditional rezoning district classification may, in the applicant’s sole discretion, file a site plan with the application instead of a concept plan. In this instance, the site plan shall be reviewed in the same manner as a concept plan, and if approved by the Town Council, shall not require subsequent review in accordance with division 3.2.7, Site Plan. In cases where a site plan is submitted as an alternative to a concept plan, all stormwater and public infrastructure aspects must comply with all applicable town and governmental agency requirements before the site plan may be approved. In the event a site plan approved in this manner requires an amendment, it shall require a reconsideration as a conditional rezoning district classification.
         (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).
            (iii)   Subsequent site plan and/or subdivision review. Development depicted in a concept plan shall also be required to undergo subdivision review in accordance with division 3.2.9, Subdivision, and/or site plan review in accordance with division 3.2.7, Site Plan. Subdivision plats or site plans shall be in substantial conformity with the approved concept plan.
            (iv)   Site plan alternative to a concept plan. An applicant for a special use permit may, in the applicant’s sole discretion, file a site plan with the application instead of a concept plan. In this instance, the site plan shall be reviewed in the same manner as a concept plan, and if approved by the Board of Adjustment, shall not require subsequent review in accordance with division 3.2.7, Site Plan. In cases where a site plan is submitted as an alternative to a concept plan, all stormwater and public infrastructure aspects must comply with all applicable town and governmental agency requirements before the site plan may be approved. In the event a site plan approved in this manner requires an amendment, it shall require a reconsideration as a special use permit.
         (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 for all buildings other than one- and two-family dwellings;
         (5)   Street layout and construction;
         (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 and screening;
         (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 and 6.6.
      (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)   Minor deviation. The Ordinance Administrator is authorized to review and approve a minor deviation to a concept plan or approved conditions if the proposed revision meets all of the following limitations:
         (1)   It does not involve a change in uses permitted or the density of overall development permitted;
         (2)   It complies with underlying zoning standards and other applicable conditions of the approval; and
         (3)   It involves 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.
   For example, minor deviations shall include, but not be limited to, the following if they comply with the provisions in (G)(1), (G)(1), and (G)(1) in this subsection:
            (a)   Driveway relocations;
            (b)   Structure floor plan revisions;
            (c)   Facility design modifications for amenities and other site features;
            (d)   Minor adjustments to road configuration or internal circulation;
            (e)   Minor adjustments to building location;
            (f)   Minor adjustments to landscaping;
            (g)   Minor adjustments to lot configuration; and
            (h)   Minor adjustments to utility alignment.
      (H)   Amendment. Changes to a concept plan that do not qualify as minor deviations may only be made in accordance with the procedures set forth for the initial approval of a concept plan.
   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. Except when a site plan is submitted with an application for a conditional rezoning district classification or a special use permit, 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)   Minor deviation. The Ordinance Administrator is authorized to review and approve a minor deviation to a concept plan or approved conditions if the proposed revision meets all of the following limitations:
         (1)   It does not involve a change in uses permitted or the density of overall development permitted;
         (2)   It complies with underlying zoning standards and other applicable conditions of the approval; and
         (3)   It involves 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.
      For example, minor deviations shall include, but not be limited to, the following if they comply with the provisions in (H)(1), (H)(1), and (H)(1) in this subsection:
            (a)   Driveway relocations;
            (b)   Structure floor plan revisions;
            (c)   Facility design modifications for amenities and other site features;
            (d)   Minor adjustments to road configuration or internal circulation;
            (e)   Minor adjustments to building location;
            (f)   Minor adjustments to landscaping;
            (g)   Minor adjustments to lot configuration; and
            (h)   Minor adjustments to utility alignment.
      (I)   Amendments.
         (1)   Changes to a site plan that do not qualify as minor deviations may only be made in accordance with the procedures and standards established for the original approval of the site plan.
         (2)   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 substantially commence work 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 upon receiving a written request from the applicant before the expiration of the approved permit and in light of all relevant circumstances, including, but not limited to, extreme weather events, economic cycles, and market conditions.
   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 or other public transportation system corridors, 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.
         (5)   The division of a tract into parcels in accordance with the terms of a probated will or in accordance with intestate succession under G.S. Ch. 29.
      (D)   Plat for recordation only. A local government may require only a plat for recordation for the division of a tract or parcel of land in single ownership if all of the following criteria are met:
         (1)   The tract or parcel to be divided is not exempted under subdivision (2) of subsection (a) of this section.
         (2)   No part of the tract or parcel to be divided has been divided under this subsection in the years prior to division.
         (3)   The entire area of the tract or parcel to be divided is greater than five acres.
         (4)   After division, no more than three lots result from the division.
         (5)   After division, all resultant lots comply with all of the following:
            a.   All lot dimension size requirements of the applicable land use regulations, if any.
            b.   The use of the lots is in conformity with the applicable zoning requirements, if any.
            c.   A permanent means of ingress and egress is recorded for each lot.
   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)   Type. The type of the performance guarantee shall be at the election of the developer. The term PERFORMANCE GUARANTEE means any of the following forms of guarantee:
               (a)   Surety bond issued by any company authorized to do business in this state.
               (b)   Letter of credit issued by any financial institution licensed to do business in this state.
               (c)   Other form of guarantee that provides equivalent security to a surety bond or letter of credit.
            (ii)   Duration. The duration of the performance guarantee shall initially be one year, unless the developer determines that the scope of work for the required improvements necessitates a longer duration. In the case of a bonded obligation, the completion date shall be set one year from the date the bond is issued, unless the developer determines that the scope of work for the required improvements necessitates a longer duration.
            (iii)   Extension. A developer shall demonstrate reasonable, good faith progress toward completion of the required improvements that are secured by the performance guarantee or any extension. If the improvements are not completed to the specifications of the local government, and the current performance guarantee is likely to expire prior to completion of the required improvements, the performance guarantee shall be extended, or a new performance guarantee issued, for an additional period. An extension shall only be for a duration necessary to complete the required improvements. If a new performance guarantee is issued, the amount shall be determined by the procedure provided in subdivision (v) of this subsection and shall include the total cost of all incomplete improvements.
            (iv)   Release. The performance guarantee shall be returned or released, as appropriate, in a timely manner upon the acknowledgment by the town that the improvements for which the performance guarantee is being required are complete. The town shall return letters of credit or escrowed funds upon completion of the required improvements to its specifications or upon acceptance of the required improvements, if the required improvements are subject to local government acceptance. When required improvements that are secured by a bond are completed to the specifications of the town, or are accepted by the town, if subject to its acceptance, upon request by the developer, the town shall timely provide written acknowledgment that the required improvements have been completed.
            (v)   Amount. The amount of the performance guarantee shall not exceed 125% of the reasonably estimated cost of completion at the time the performance guarantee is issued. The town may determine the amount of the performance guarantee or use a cost estimate determined by the developer. The reasonably estimated cost of completion shall include 100% of the costs for labor and materials necessary for completion of the required improvements. Where applicable, the costs shall be based on unit pricing. The additional 25% allowed under this subdivision includes inflation and all costs of administration regardless of how such fees or charges are denominated. The amount of any extension of any performance guarantee shall be determined according to the procedures for determining the initial guarantee and shall not exceed 125% of the reasonably estimated cost of completion of the remaining incomplete improvements still outstanding at the time the extension is obtained.
            (vi)   Timing. The town, at its discretion, may require the performance guarantee to be posted either at the time the plat is recorded or at a time subsequent to plat recordation.
            (vii)   Coverage. The performance guarantee shall only be used for completion of the required improvements and not for repairs or maintenance after completion.
            (viii)   Legal responsibilities. No person shall have or may claim any rights under or to any performance guarantee provided pursuant to this subsection or in the proceeds of any such performance guarantee other than the following:
               (a)   The town to whom the performance guarantee is provided;
               (b)   The developer at whose request or for whose benefit the performance guarantee is given;
               (c)   The person or entity issuing or providing the performance guarantee
      (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 one year 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 substantially commenced within one year 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 A99 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 substantially 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. § 160D-1403.1(b) 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 determination from the date a sign providing notice that a determination has been made is prominently posted on the property that is the subject of the determination, provided the sign remains on the property for at least 10 days. The sign shall contain the words “Zoning Decision” or “Subdivision Decision” or similar language for other determinations in letters at least six inches high and identifying the means to contact a town official for information about the decision is prominently posted on the property that is the subject of the determination. 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. § 160D-406. 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 (including the accrual of fines and fees) 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. Filing of an appeal shall toll all time periods associated with conditions of approval, permit expiration, or vesting until the appeal is decided.
      (D)   Appeals in the nature of certiorari. When hearing an appeal pursuant to G.S. §160D-947 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. § 160D-1402.
      (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   Vested rights certificate.
      (A)   Purpose. The purpose of this division is to implement the provisions of G.S. §§ 160D-108 and 160D-108.1 in order to permit an applicant to request vesting, or an extended vesting period, from changes in this ordinance that take place after approval of a development application but prior to completion of an approved site-specific vesting plan associated with the application.
      (B)   Applicability. An application for a vested rights certificate shall be limited to applications with an approved site-specific vesting plan in accordance with division 1.11.4(D), Site-specific vesting plan.
      (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 Town Council. After 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, and the testimony given at the public hearing. After the close of the public hearing, the Town Council shall, by simple 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 Certificate 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 certificate standards. The Town Council shall only grant a vested rights certificate in accordance with the following:
         (1)   The site-specific vesting plan was lawfully established and approved in the appropriate manner by the appropriate decision-making body;
         (2)   The site-specific vesting plan has not expired and the development proposed remains valid and unexpired;
         (3)   All required variances, if any, have been obtained; and
         (4)   The site-specific vesting 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.
      (E)   Effect.
         (1)   Each document used to establish a site-specific vesting plan shall bear the following notation:
            “Approval of this application establishes a zoning vested right under Section 160D-108 of the North Carolina General Statutes, as amended. Unless terminated at an earlier date, the vested right shall be valid until               (date).”
         (2)   The establishment of a vested right shall not preclude the application of overlay zoning district provisions that impose additional requirements but do not affect the allowable type and intensity of use, or through ordinances that are general in nature and are applicable to all property subject to land use regulation by the town, including, but not limited to: building, fire, plumbing, electrical, and mechanical codes.
      (F)   Duration.
         (1)   In no instance shall a vested right certificate provide a vested right for a period of longer than five years from the date of approval of the site-specific vesting plan.
         (2)   A vested right certificate shall expire and become null and void:
            (i)   At the end of the approved vesting period; or
            (ii)   If a building permit application for the development subject to the certificate is not submitted within two years of the approval of the vested rights certificate associated with a special use permit concept plan, subdivision preliminary plat, or site plan, or five years of the approval of a vested rights certificate associated with a conditional rezoning concept plan; or
            (iii)   Upon a finding by the Town Council after public notice and a public hearing, that:
               (a)   Natural or man-made hazards on or in the immediate vicinity of the land, if uncorrected, would pose a serious threat to the public health, safety, and welfare if the project were to proceed as contemplated;
               (b)   The landowner or landowner’s representative intentionally supplied inaccurate information or made material misrepresentations which affected the approval of the site-specific vesting plan;
               (c)   The landowner failed to comply with any condition imposed upon the establishment of the site-specific development plan or vested rights certificate; or
            (iv)   Upon payment to the affected landowner of compensation for all costs, expenses, and other losses incurred by the landowner, including all fees paid in consideration of financing, and all architectural, planning, marketing, legal, and other consultant fees incurred after approval of the certificate by the town, together with interest at the legal rate until paid. Compensation shall not include any diminution in the value of the land which is caused by such action; or
            (v)   With the written consent of the affected landowner.
         (3)   Upon enactment or promulgation of a state or federal law or regulation that precludes development as contemplated in the site-specific vesting plan, the Town Council may modify the affected provisions of the certificate by ordinance, if after conducting a hearing, it finds the changed conditions created by the change in the state or federal law have a fundamental effect on the site-specific vesting plan.
   3.2.15   Special intensity allocation.
      (A)   Purpose. The purpose of this division 3.2.15 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.
(Ord. A.21.01, passed 6-3-2021; Ord. A.22.01, passed 4-7-2022; Ord. A.24.03, passed 5-2-2024)