(A) Findings. Town approval of development typically follows significant investment in site evaluation, planning, development costs, consultant fees, and related expenses. Therefore, it is necessary and desirable to provide for the establishment of certain vested rights in order to ensure reasonable certainty, stability, and fairness in the development regulation process, secure reasonable expectations of landowners, and foster cooperation between the public and private sectors in land-use planning and development regulation.
(B) Permit choice. If an application made in accordance with local regulation is submitted for a development approval required pursuant to this chapter and a development regulation changes between the time the application was submitted and a decision is made, the applicant may choose which version of the development regulation will apply to the application. If the development permit applicant chooses the version of the rule or ordinance applicable at the time of the permit application, the development permit applicant shall not be required to await the outcome of the amendment to the rule, map, or ordinance prior to acting on the development permit. This section applies to all development approvals issued by the state and by local governments. The duration of vested rights created by development approvals are as set forth in division (D).
(C) Process to claim vested right. A person claiming a statutory or common law vested right may submit information to substantiate that claim to the UDO Administrator, who shall make an initial determination as to the existence of the vested right. The UDO Administrator's determination may be appealed under G.S. § 160D-405. On appeal the existence of a vested right shall be reviewed de novo. In lieu of seeking such a determination, a person claiming a vested right may bring an original civil action as provided in G.S. § 160D-405(c).
(D) Types and duration of statutory vested rights. Except as provided by this section and subject to division (B), amendments to this chapter shall not be applicable or enforceable with regard to development that has been permitted or approved pursuant to this chapter so long as one of the approvals listed in this division remains valid and unexpired. Each type of vested right listed below is defined by and is subject to the limitations provided in this section and the cited statutes. Vested rights established under this section are not mutually exclusive. The establishment of a vested right under one division does not preclude vesting under one or more other divisions or by common law principles.
(1) Six months - building permits. Pursuant to G.S. § 160D-1110, a building permit expires six months after issuance unless work under the permit has commenced. Building permits also expire if work is discontinued for a period of 12 months after work has commenced.
(2) One year - other local development approvals. Pursuant to G.S. § 160D-403(c), unless otherwise specified by this section, statute, or local ordinance, all other local development approvals expire one year after issuance unless work has substantially commenced. Expiration of a local development approval does not affect the duration of a vested right established as a site-specific vesting plan, a multiphase development plan, a development agreement, or vested rights established under common law.
(3) Two to five years - site specific vesting plans.
(a) Duration. A vested right for a site-specific vesting plan shall remain vested for a period of two years. This vesting shall not be extended by any amendments or modifications to a site-specific vesting plan unless expressly provided by the town. The town may provide that rights regarding a site specific vesting plan shall be vested for a period exceeding two years, but not exceeding five years if warranted by the size and phasing of development, the level of investment, the need for the development, economic cycles, and market conditions or other considerations. This determination shall be made in the discretion of the town and shall be made following the process specified by division (D)(3) below for the particular form of a site-specific vesting plan involved.
(b) Relationship to building permits. A right vested as provided in this division shall terminate at the end of the applicable vesting period with respect to buildings and uses for which no valid building permit applications have been filed. Upon issuance of a building permit, the provisions of G.S. §§ 160D-1110 and 160D-1113 shall apply, except that the permit shall not expire or be revoked because of the running of time while a vested right under this section exists.
(c) Requirements for site specific vesting plans. For the purposes of this section, a "site-specific vesting plan" means a plan submitted to the town describing with reasonable certainty the type and intensity of use for a specific parcel or parcels of property. The plan may be in the form of, but not be limited to, any of the following plans or approvals: a planned unit development plan, a subdivision plat, a site plan, a preliminary or general development plan, a special use permit, a conditional zoning, or any other development approval as may be used by the town. Unless otherwise expressly provided by the town, the plan shall include the approximate boundaries of the site; significant topographical and other natural features effecting development of the site; the approximate location on the site of the proposed buildings, structures, and other improvements; the approximate dimensions, including height, of the proposed buildings and other structures; and the approximate location of all existing and proposed infrastructure on the site, including water, sewer, roads, and pedestrian walkways. The Town of Carolina Shores uses existing development approvals, such as a preliminary plat, a special use permit, or a conditional zoning, to approve a site-specific vesting plan. A variance shall not constitute a "site specific vesting plan," and approval of a site-specific vesting plan with the condition that a variance be obtained shall not confer a vested right unless and until the necessary variance is obtained. If a sketch plan or other document fails to describe with reasonable certainty the type and intensity of use for a specified parcel or parcels of property, it may not constitute a site-specific vesting plan.
(d) Process for approval and amendment of site-specific vesting plans. If a site-specific vesting plan is based on an approval required by a local development regulation, the town shall provide whatever notice and hearing is required for that underlying approval. If the duration of the underlying approval is less than two years, that shall not affect the duration of the site-specific vesting established by this division. If the site-specific vesting plan is not based on such an approval, a legislative hearing with notice as required by G.S. § 160D-602 shall be held. The town may approve a site-specific vesting plan upon such terms and conditions as may reasonably be necessary to protect the public health, safety, and welfare. Such conditional approval shall result in a vested right, although failure to abide by such terms and conditions will result in a forfeiture of vested rights. The town shall not require a landowner to waive vested rights as a condition of developmental approval. A site-specific vesting plan shall be deemed approved upon the effective date of the town's decision approving the plan or such other date as determined by the Board of Commissioners upon approval. An approved site specific vesting plan and its conditions may be amended with the approval of the owner and the town as follows: Any substantial modification must be reviewed and approved in the same manner as the original approval; minor modifications may be approved by staff, if such are defined and authorized by local regulation.
(4) Seven years - multi-phase developments. A multi-phase development shall be vested for the entire development with the Unified Development Ordinance in place at the time a site plan approval is granted for the initial phase of the multi-phase development. This right shall remain vested for a period of seven years from the time a site plan approval is granted for the initial phase of the multi-phase development. For the purposes of this division, "multi-phase development" means a development containing 100 acres of more that: (i) is submitted for site plan approval for construction to occur in more than one phase; and (ii) is subject to a master development plan with committed elements, including a requirement to offer land for public use as a condition of its master development plan approval.
(5) Indefinite - development agreements. A vested right of reasonable duration may be specified in a development agreement approved under § 91.53 of this chapter.
(E) Continuing review. Following approval or conditional approval of a statutory vested right, the town may make subsequent reviews and require approvals by the town to ensure compliance with the terms and conditions of the original approval, provided that such reviews and approvals are not inconsistent with the original approval. The town may revoke the original approval for failure to comply with applicable terms and conditions of the original approval or the applicable local development regulations.
(F) Exceptions.
(1) A vested right, once established as provided for by divisions (C) or (D) of § 91.52, precludes any zoning action by a local government that would change, alter, impair prevent, diminish, or otherwise delay the development or use of the property as set forth in an approved vested right, except:
(a) With the written consent of the affected landowner;
(b) Upon findings, after notice and an evidentiary hearing, that natural or man-made hazards on or in the immediate vicinity of the property, if uncorrected, would pose a serious threat to the public health, and safety, and welfare if the project were to proceed as contemplated in the approved vested right;
(c) To the extent that the affected landowner receives compensation for all costs, expenses, and other losses incurred by the landowner, including, but not limited to, all fees paid in consideration of financing, and all architectural, planning, marketing, legal, and other consultant's fees incurred after approval by the town, together with interest as is provided in § 91.13. Compensation shall not include any diminution in the value of the property that is caused by such action;
(d) Upon findings, after notice and an evidentiary hearing, that the landowner or his representative intentionally supplied inaccurate information or made material misrepresentations that made a difference in the approval by the town of the vested right; or
(e) Upon the enactment or promulgation of a state or federal law or regulation that precludes development as contemplated in the approved vested right, in which case the town may modify the affected provisions, upon a finding that the change in state or federal law has a fundamental effect on the plan, after notice and an evidentiary hearing.
(2) The establishment of a vested right under divisions (C) or (D) of § 91.52, shall not preclude the application of overlay zoning or other development regulation that imposes additional requirements but does not affect the allowable type or intensity of use, or ordinances or regulations that are general in nature and are applicable to all property subject to development regulation by the town including, but not limited to, building, fire, plumbing, electrical, and mechanical codes. Otherwise applicable new regulations shall become effective with respect to property that is subject to a vested right established under this section upon the expiration or termination of the vested rights period provided for in this section.
(3) Notwithstanding any provision of this section, the establishment of a vested right under this section shall not preclude, change or impair the authority of the town to adopt and enforce development regulation provisions governing nonconforming situations or uses.
(G) Miscellaneous provisions.
(1) A vested right obtained under this section is not a personal right, but shall attach to and run with the applicable property. After approval of a vested right under this section, all successors to the original landowner shall be entitled to exercise such rights.
(2) Nothing in this section shall preclude judicial determination, based on common law principles or other statutory provisions, that a vested right exists in a particular case or that a compensable taking has occurred. Except as expressly provided in this section, nothing in this section shall be construed to alter the existing common law.
(Ord. 21-1, passed 9-17-2020)
Editor’s note:
G.S. § 160D-405(c) was repealed by Session Laws 2020-25, s. 10, effective June 19, 2020.