(A) Development approvals that have an established vested right in accordance with G.S. § 160D-108 and this section shall preclude any action by the town that would change, alter, impair, prevent, diminish, or otherwise delay the development or use of the property authorized by the development approval, except where a change in state or federal law occurs and has a retroactive effect on the development or use.
(B) Except when subject to division 1.11.3(C) below, amendments to this ordinance shall not be applicable to any of the following development approvals after they are vested:
(1) Building or uses of land for which a development permit application has been submitted and approved in accordance with this ordinance and G.S. § 143-755;
(2) Subdivisions of land for which a subdivision application has been submitted and approved in accordance with this ordinance and G.S. § 143-755;
(3) A site-specific vesting plan approved in accordance with this ordinance and G.S. § 160D-108.1;
(4) A multi-phase development approved in accordance with this ordinance and G.S. § 160D-108; and
(5) A vested right established by the terms of an approved development agreement in accordance with this ordinance and G.S. Ch. 160D, Art. 10.
(C) Amendments to this ordinance shall apply to vested development approvals if:
(1) A change to state or federal law occurs and has a retroactive effect on the development or use;
(2) There is written consent to be subject to the amendment by the landowner;
(3) The development approval expires; or
(4) The development is not undertaken or completed in accordance with the approval.
1.11.4 Establishment of a vested right. A vested right may only be established following an approval of a development application in accordance with this section and the applicable requirements in the North Carolina General Statutes. The following subsections detail the ways in which a vested right may be established.
(A) Common law vested rights.
(1) Defined. A common law vested right establishes the right to undertake and complete the development and use of property on substantial expenditures in good faith reliance on a valid governmental approval. Such approvals include, but are not limited to:
(i) Zoning permits;
(ii) Sign permits;
(iii) Building permits;
(iv) Special use permits; and
(v) Subdivision preliminary plats.
(2) Application. The applicant shall provide satisfactory proof that each of the following standards are met in order to establish a common law vested right:
(i) The applicant has, prior to the adoption or amendment of an ordinance, made substantial expenditures of time, effort, or money on a proposed development; and
(ii) The obligations and/or expenditures were incurred in good faith; and
(iii) The obligations and/or expenditures were made in reasonable reliance on and after the issuance of a valid governmental permit, if such permit is required provided however, a mistakenly-issued governmental permit shall not give rise to a common law vested right; and
(iv) The amended or newly adopted ordinance is a substantial detriment to the applicant.
(B) Issuance of a building permit. Issuance of a building permit by the county in accordance with the applicable standards in this ordinance and applicable state law shall entitle the building permit holder to vested rights to develop the proposal as identified in the approved building permit, subject to the following standards:
(1) The applicant shall not be required to file for a determination to establish common law vested rights or maintain vested status during the time period for which the building permit remains valid.
(2) The owner has a vested right only as long as the building permit remains valid and only for the work approved by the building permit.
(3) A building permit may expire in accordance with the applicable county or North Carolina General Statute provisions.
(4) The building permit may be revoked for any substantial departure from the approved plans, failure to comply with any applicable local or state law, and any misrepresentations made in securing the permit.
(5) Building permits mistakenly issued may be revoked.
(6) If the building permit expires or is revoked, the vested right based on it is also lost.
(C) Statutory vested rights. Development permits for a building, use of a building, use of land, or subdivision of land establishes statutory vested rights, which shall entitle the permit holder to vested rights to develop the proposal as identified in the approved permit, subject to the following standards:
(1) Issuance of a building permit is not considered a development permit, and the vesting term shall only continue in accordance with the provisions in G.S. § 160D-801.
(2) A development permit is valid for one year after issuance, unless otherwise specified by statute, and the applicant is vested in that permit for the term of validity.
(3) If the applicant fails to substantially commence authorized work within one year, then the development permit and vesting expire.
(4) Vesting shall continue provided there is a substantial commencement of authorized work under a valid development permit.
(5) The development permit and vesting shall expire after substantial work commences if there is a two-year period of intentional and voluntary discontinuance of work unless otherwise specified by statute.
(D) Site-specific vesting plan.
(1) Defined.
(i) For the purposes of this section, a SITE-SPECIFIC VESTING PLAN is defined as a plan submitted to the town in which the applicant requests vesting, describing with reasonable certainty on the plan, the type and intensity of use for a specific parcel or parcels of property.
(ii) A site-specific vesting plan must provide, with reasonable certainty, all of the following:
(a) The boundaries of the development;
(b) Topographic and natural features affecting the site;
(c) The approximate location of proposed buildings, structures, and other improvements;
(d) The approximate dimensions, including height, of proposed buildings and other structures;
(e) The approximate location of all existing and proposed infrastructure on the site, including water, sewer, streets, and pedestrian ways;
(f) The type or types of proposed land uses; and
(g) The density or intensity of development.
(iii) A concept plan or any other document that fails to describe with reasonable certainty the type and intensity of use for a specific lot or lots of property shall not constitute a site-specific vesting plan.
(iv) The following development approvals constitute a site-specific vesting plan:
(a) A concept plan associated with a conditional rezoning or the gateway districts;
(b) A preliminary plat;
(c) Site plans;
(d) A preliminary plat;
(e) Site plans; and
(f) A concept plan associated with a special use permit.
(2) Establishment.
(i) Development approvals identified by this ordinance as site-specific vesting plans shall be granted a vested right to develop for a maximum period of two years from the date of the approval, provided the applicant has requested, in writing, that a vested right is sought, and provided the development subject to the approval complies with all applicable terms and conditions.
(ii) In cases where a concept plan is associated with an approved conditional rezoning, the conditional zoning designation shall run with the land but the vesting status of the associated concept plan shall be in accordance with the standards for any other site-specific vesting plan.
(3) Extension.
(i) The two-year vesting duration of a site-specific vesting plan may be extended up to five years from the date of the approval only in accordance with division 3.2.14, Vested Rights Certificate.
(ii) Site-specific vesting plans meeting the definition of a multi-phase development shall be vested in accordance with division 1.11.4(E), Multi-phase development plan.
(E) Multi-phase development plan.
(1) A multi-phase development plan that occupies at least 25 acres of land area, is subject to a master plan that depicts the types and intensities of all uses as part of the approval and includes more than one phase shall be considered as a multi-phase development plan that is granted a vested right to develop for a period of seven years from the date of approval of the first site plan associated with the development.
(2) Vesting shall commence upon approval of the site plan for the first phase of the development.
(3) The vested right shall remain in effect provided the development does not expire and provided it complies with all the applicable terms and conditions of the approval.
(F) Development agreement. A development agreement shall be vested in accordance with the vesting term identified in the development agreement.
(G) Voluntary annexation.
(1) Any petition for annexation filed with the town shall contain a signed statement from the applicant indicating if vested rights on the properties subject to the petition have been established in accordance with G.S. § 160D-108.
(2) A statement that declares that no zoning vested right has been established or the failure to provide a statement declaring whether vested rights have been established, shall result in a termination of any vested rights established prior to annexation.
(A) Generally.
(1) Vested rights established in accordance with this ordinance shall run with the land.
(2) In no instance shall vesting status extend beyond the maximum duration for the type of development application approval.
(3) In no instance shall the vesting status of a development approval continue after the development approval expires or if the development approval is revoked for failure to comply with the terms of the approval or of this ordinance.
(4) In no instance shall the vesting status of a development approval continue after it is determined that the development approval was based upon intentional inaccurate information or material misrepresentations.
(5) In no instance shall vested rights continue if the Town Council finds, after a duly noticed public hearing, that natural or man-made hazards resulting from the development would result in a serious threat to public health, safety, or welfare if the development were to be continued or completed.
(6) In the event of commenced but uncompleted work associated with a development approval, vested rights shall expire within 24 months of the discontinuance of work. This 24-month period shall not include the time associated with work stoppage resulting from an appeal or litigation.
(B) Limitations.
(1) The establishment of a vested right does not preclude the town’s application of overlay zoning district requirements or other development regulations that do not affect the type of land use, its density, or intensity.
(2) A vested right shall not preclude the application of changes to building, fire, plumbing, electrical, or mechanical codes made after the development approval where a vested right was established.
(Ord. A.24.03, passed 5-2-2024)