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(A) Purpose and Scope
The Town Council may rezone property (i.e., amend the classifications of property appearing on the Zoning Map). The purpose is not to relieve particular hardships, nor to confer special privileges or rights on any person, but only to make adjustments to the Zoning Map that are necessary in light of changed conditions or changes in public policy, or that are necessary to advance the general welfare of the Town.
(B) Conditional Use and Flexible Use District Rezonings Distinguished
(1) Applications for the rezoning of property to a conditional use district are governed by the procedures set forth both in this Section 3.4.1 and also in Section 3.4.2. For purposes of this Ordinance, conditional use district zoning means “conditional zoning” as defined by G.S. 160D-102(7), and conditional use district means “conditional district” as permitted by G.S. 160D-703.
(2) An application for rezoning to a general use district shall not be converted into an application for rezoning to a conditional use district at any point in the application review process, nor shall an application for rezoning to a conditional use district be converted into an application for rezoning to a general use district. If such a conversion is desired, the applicant must submit a new application for rezoning to the other type of district in accordance with the requirements of this Section 3.4.
(3) Applications for the rezoning of property to the MXD Flexible Use District are governed by the procedures set forth in Section 3.4.5.
(C) Relationship to the Comprehensive Plan
Where a proposed rezoning appears to be inconsistent with the Comprehensive Plan, the Planning Director or the applicant may initiate a substantive plan amendment as provided in Section 3.2. A plan amendment and a zoning amendment may be considered concurrently.
(D) Procedure
(1) Initiation of Amendments and Filing of Applications
A rezoning may be initiated by any review or decision-making body; by application from any owner (or owner's agent) of land for which the rezoning is requested; or by any owner or resident of land within five hundred (500) feet of the land for which the rezoning is requested, but only as long as the rezoning is not a “down-zoning” as defined in G.S. 160D-601. When the owner of land is not an individual, then the rezoning application shall include a disclosure statement that indicates the type of entity involved, and the name and address of each person who holds ten (10) percent or more of the business entity. When the owner of land is publicly-owned business entity, then the rezoning application shall include a disclosure statement that indicates the name and address of each person who holds twenty-five (25) percent or more of the business entity. An application requesting the rezoning shall be filed with the Planning Department.
(2) Pre-Application Conference
Before filing an application, a private-party applicant may request a pre-application conference with the Planning Director. See Section 3.1.5.
(3) Traffic Impact Analysis (TIA)
A Traffic Impact Analysis (TIA) or Traffic Analysis Report (TAR) is required if the proposed new zoning district could result in a use or mix of uses that can be expected to generate one hundred (100) or more total peak hour trips. Total peak hour trips represent gross trips expected to be generated by the proposed new zoning district prior to applying any reduction for internal trips.
(a) Preparing the TIA
The Town shall prepare or have prepared (using Town staff or a retained consultant) the written TIA.
(b) Study Area Boundaries
The extent of the study area for the TIA depends upon the location and size of the rezoning and the prevailing conditions of the surrounding area. The study area is defined in the following table. Controlled access roadways are not included in the study area or analysis; the controlled access ramp intersections with non-controlled access roadways are subject to analysis. The distances described below are to be measured from the property boundaries and include those intersections within the identified area.
Trip Generation | Study Area | |
Base Zone | One hundred (100) - One hundred fifty (150) peak hour trips | One-half (1/2) mile plus any intersection on which at least seven (7) percent of any traffic movement approach volume is generated by the proposed project. |
Base Zone | More than One hundred fifty (150) peak hour trips | One (1) mile plus any intersection on which at least seven (7) percent of any traffic movement approach volume is generated by the proposed project. |
Central Zone | More than one hundred (100) peak hour trips within the Central Transportation Zone | One-quarter (1/4) mile plus any intersections on which at least seven (7) percent of any traffic movement approach volume are generated by or as a result of the proposed project. |
(c) Trip Generation Standards
Trip generation data for each project shall be based upon the Institute of Traffic Engineers' Trip Generation Manual or, at the discretion of the Town, other sources of trip generation data (e.g., local data) if this source data is deemed more representative of the proposed development use. The following other standards also apply to projects:
1. Defining Peak Hour Trips
Peak hour trips are those occurring on peak travel demand days on the adjacent roadway (e.g., daily trips on a Sunday may not be applicable). It is not the intent of this section to require a TIA for a use that generates trips that meet or exceed the threshold but do not occur during the adjacent roadway system's peak hour. For example, facilities designed for sporting events, concerts or other similar uses may not require a traffic analysis because the events occur during a non-peak hour or non-peak day. If a traffic study is required for a use, then the analysis shall be based upon the normal trip generation for the proposed use and not that associated with special event(s).
2. Credit for Mixed Use, Pass-By Trips
The determination of the number of trips generated shall also take into account pass-by trips, internal trip capture for integrated mixed use projects (e.g., roadway and/or pedestrian connectivity) and any proposed transportation demand management system, provided that adequate guarantees can be provided to the Town to ensure that such demand management system will function as claimed for the life of the project. In addition, if the proposed development is designed and integrated with an adjacent mixed use project (e.g., roadways), then a credit for trips may be permitted.
3. Estimated Trips for Rezonings/PDDs
In evaluating the impact of a proposed rezoning or planned development where the specific uses or exact number of dwelling units have not been specified, estimates shall be based upon the highest level of density or intensity of use that would be authorized by the requested approvals. However, if the highest level of intensity of use is a use that generates trips that meet or exceed the threshold but do not occur during the adjacent roadway system's peak hour, such as athletic fields, outdoor amphitheaters, or other similar uses, then the analysis shall be based upon the normal trip generation for the proposed use and not that associated with special event(s).
(d) Submission Requirements
At the time of the initial submission, the applicant is required to submit the following information:
1. Traffic analysis base information, site location map, site layout, if applicable;
2. Data on the existing/proposed land use;
3. Description of the project.
4. Additional information as may be requested by staff.
5. Study Fee
After preliminary review of the data submitted under item (d) above, the Town shall prepare an estimate of consulting fees for the analysis of traffic impact for the project. Upon receipt of payment of fees from the applicant in the amount of ninety percent (90%) of the projected cost estimate, the Town shall release the work to a consultant for analysis. After completion of the analysis, the Town shall evaluate the actual costs incurred for the study and will reimburse to the applicant any remaining balance of the fee paid.
(e) Required Factors to Include in Study
The TIA shall evaluate the projected impact of the proposed rezoning on the public facilities in question at the time of projected build-out, which will be assumed to be five (5) years from the date the rezoning application was submitted. This analysis will take into account not only the status of existing facilities and the impact of the proposed development, but also the projected impact of the following on the capacity of those facilities:
1. Future capital improvements that will increase the capacity of the facilities in question should be considered if construction of the improvements has received all necessary governmental approvals and funding is in place, or that such approvals and funding appear reasonably certain.
2. All residential dwelling lots (excluding those for multi-family uses) that have received final plat approval but that do not contain a completed dwelling.
3. All development plans that have been approved, so long as such approvals have not expired.
4. For any developments for which the notice to proceed has been granted for a traffic study, even if the traffic study is not complete at the time of scoping the background traffic for a subsequent study to be conducted. If there is no additional action with regards to the project within six (6) months after the completion to the traffic study (such as a rezoning application submitted or approved), the traffic from the completed study will no longer be included in the background traffic for the subsequent study.
5. No traffic from a previously approved planned development should be included as background traffic for the same planned development, if no development plan approval has been granted.
6. Typical background traffic increases that are not directly related to known previously approved development.
(f) Tracking of Required Factors
The staff shall develop a system of keeping track of the factors described in subsection (e) above.
(g) Level of Service
The TIA shall measure and report the Level of Service (LOS) at peak hours for each intersection within the required study area, with LOS as defined by the most current edition of the Highway Capacity Manual. If the projected LOS for any intersection in the central zone, as defined in Section 7.11.16 of the LDO, is LOS "F", the TIA shall list potential transportation system improvements that would ensure there is no increase in average delay for the intersection (measured in its entirety). If the projected LOS in the base zone, as defined in Section 7.11.16 of the LDO, falls below LOS "D" based upon the standard ITE average peak hour, the TIA shall list potential transportation system improvements that would ensure there is no increase in average delay for the intersection (measured in its entirety). However, no transportation system improvements shall be listed for intersections for which the existing intersection configuration already meets the requirements of the Comprehensive Transportation Plan.
All forms of transportation system improvements should be considered at non-signalized intersections, including separate left and right turn lanes, geometric modifications, alternative access management strategies, and signalization. Signalization should not be considered the primary solution. Installation of new signals at existing or new intersections should only be considered when the intersection meets required warrants for a signal; the signal does not cause an undesirable delay in the surrounding road system; and other transportation improvements do not result in acceptable levels-of-service.
(h) Expiration of TIA
The TIA shall expire after five (5) years.
(i) No application for a rezoning shall be accepted by the Town of Cary until the draft findings of the TIA have been received unless the Development Review Committee agrees in advance that the draft findings may be submitted within a week after the date of the rezoning application.
(4) Neighborhood Meeting
(a) Applicability
This section 3.4.1(D)(4) shall apply to all rezoning applications filed and accepted as complete.
(b) Procedure
Neighborhood meetings for complete rezoning applications shall be held at a date, time and location established and scheduled by staff. At the neighborhood meeting, each applicant shall conduct a meeting with any attendee interested in that proposed rezoning. The applicant shall record meeting minutes and provide the Town a digital copy of the written meeting minutes. The purpose of this neighborhood meeting is to ensure that nearby property owners are aware of the request and have an opportunity to inform the applicant of issues and concerns prior to the public hearing.
A general orientation meeting shall be conducted by staff for all applications at the beginning of each neighborhood meeting.
(c) Alternative Outreach for Certain Rezoning Cases
An alternative means of conducting public outreach, such as one (1) or more open houses, may be utilized in lieu of the neighborhood meeting for widespread zoning changes initiated for the general purpose of implementing the goals and policies of the Comprehensive Plan. Examples of such changes include the establishment and application of new types of zoning districts or widespread changes to the applicability of or location of existing zoning districts or overlay districts. The Town shall provide outreach and input opportunities as needed to ensure that citizens have an opportunity to ask questions and understand the proposed rezoning prior to the public hearing. Notification shall include posting on the Town’s web site, and, based on the nature of the change and the number of parcels affected, either mailing of a notice to individual property owners affected, or publication of a half (½) page ad in a local newspaper.
The standard neighborhood meeting shall be required for all citizen-initiated rezoning requests and all town-initiated rezoning requests for Town-owned property.
(5) Public Notice
Published, written, and posted notice of public hearings shall be provided in accordance with Section 3.1.6.
(6) Public Hearings
At least one (1) public hearing shall be held before Town Council in accordance with Section 3.1.7, provided, however, that only the first public hearing shall require written (mailed) notice.
The Planning Director shall review each proposed rezoning in light of the approval criteria of paragraph (E) and distribute the application to the Development Review Committee and, as deemed necessary, to other reviewers. Based on the results of those reviews, the Director shall provide a report to the Town Council at the initial public hearing on the proposed rezoning. This report shall include a discussion of all plans and policies that have been adopted by the Town and are relevant to the proposed amendment.
(7) Planning and Zoning Board Recommendation on Rezoning
Following the initial public hearing before the Town Council, the Planning and Zoning Board shall consider the proposed rezoning and shall submit a written recommendation to the Town Council that addresses whether the proposed amendment is consistent with the Comprehensive Plan and other officially adopted applicable plans and addresses other matters deemed appropriate by one (1) or more Board members. The Planning and Zoning Board shall determine their recommendation within ninety (90) days of the first meeting at which the proposed rezoning is presented to them for review. The Planning and Zoning Board may request an extension of time from the Town Council. If no recommendation is determined and no extension is granted within ninety (90) days, then the Town Council may act on the proposed rezoning without a recommendation from the Planning and Zoning Board.
(8) Town Council Action
(a) After reviewing the reports of the Planning Director and recommendation of the Planning and Zoning Board, the Town Council may call for a second public hearing or take one of the following actions based on the rezoning considerations of paragraph (E):
1. Approve the rezoning by ordinance;
2. Reject the proposed rezoning;
3. Refer the proposed rezoning back to the Planning and Zoning Board for further consideration;
4. Table the proposed rezoning; or
5. Rezone the property by ordinance to any zoning district that is classified higher than the district requested in the application for rezoning, but only with the consent of the applicant. See Section 4.1.1(B) for an explanation of "higher" districts versus "lower" districts.
Pursuant to G.S. 160D-605, when approving or rejecting a rezoning, Town Council shall approve 1) a brief statement describing whether its action is consistent or inconsistent with the Comprehensive Plan, and 2) a statement analyzing the reasonableness of the proposed rezoning. The statement of reasonableness and the plan consistency statement may be approved as a single statement. If Town Council approves a rezoning and finds the rezoning to be inconsistent with the Comprehensive Plan, the rezoning shall have the effect of also amending the Future Growth Framework Map in the Comprehensive Plan, and no additional request or application for a plan amendment shall be required. If a plan amendment was initiated as described in Section 3.4.1(C) and ran concurrently with the rezoning, the Future Growth Framework Map shall be amended in accordance with the plan amendment.
(b) Failure of the Town Council to take one (1) of the actions listed above within ninety (90) days of the delivery of the Planning and Zoning Board's recommendation at a Council meeting shall be deemed a denial of the rezoning request.
(9) Withdrawal of Application
A rezoning application not initiated by a Town review or decision-making body may be withdrawn by the applicant at any time prior to final Town Council action on the application. If an applicant fails to pursue a rezoning application for a period of six (6) months, the application shall be deemed withdrawn.
(E) Rezoning Considerations
Without limiting Council’s broad discretion, in reviewing proposed rezonings, Council may, among other things, consider whether:
(1) The proposed rezoning corrects an error or meets the challenge of some changing condition, trend, or fact;
(2) The proposed rezoning furthers the purposes and policies set forth in this Ordinance, including those set forth in Section 1.3 of this Ordinance; or
(3) The proposed zoning classification is suitable for the subject property.
(F) [Reserved]
(G) Waiting Period for Subsequent Applications
(1) When a rezoning application has been approved or denied by the Town Council, or has been withdrawn by the applicant after notice has been given of the public hearing on the application, no rezoning application covering the same property shall be accepted or considered within twelve (12) months after the date of the approval, denial, or withdrawal. This restriction shall apply regardless of whether the new application is for a different zoning classification than the original application.
(2) The inclusion of an additional lot or lots in the new application shall not be permitted when it is evident that the inclusion of the new lot or lots is for the express purpose of avoiding these restrictions.
(3) The waiting period required by this section may be waived in an individual case, for good cause shown, by the affirmative vote of three-fourths (3/4) of the members of the Town Council.
(H) [Reserved]
(I) Repair of Zoning Map Errors
Where errors are found on the Official Zoning Map, the repair of these errors is not considered to be a rezoning as described in Section 3.4 of this Ordinance. As a result, Zoning Map errors may be corrected upon adoption by the Town Council of a resolution noting and approving the correction. Though not required, Council may, in its discretion, call for a public hearing on the matter as part of its consideration. The matter shall not be considered by the Planning and Zoning Board and action by the Council may be taken following the hearing.
(A) Purpose of Conditional Use Districts
If the regulations and restrictions of a general use zoning district are inadequate to ensure the compatibility of the proposed development with the immediately surrounding neighborhood in accordance with the principles of the Comprehensive Plan and this Ordinance, the property owner may apply for rezoning to a conditional use district that bears the same designation as a general use zoning district but is a conditional use zoning district subject to additional conditions in which limited uses are permitted and that are contained in the ordinance approving the conditional use district.
(B) Process Required
A person petitioning for rezoning of a tract of land may elect to request a conditional use district for that tract. The conditional use district application must specify the intended use or usesand the proposed conditions for the property specified in the petition. The intended use or uses must be permitted in the corresponding general use district. The Town Council is to approve or disapprove the application on the basis of the specific use or uses and conditions proposed. Development in a conditional use district requires approval of a single application similar to a general use district rezoning application, which shall be reviewed by the Town Council through a legislative process.
(1) Conditional Use Rezoning Process
Rezoning to a conditional use district shall require submission and approval of an application for a rezoning in accordance with the general procedures set forth in Section 3.4.1, as modified by this Section 3.4.2. A rezoning to a conditional use district may be initiated only by an application signed by all of the owners of the property or by an agent authorized by all of the owners to file such application, which application shall include the affidavit required by Section 3.4.2(C)(4) and (5). If the application is approved, the Town Council shall adopt an ordinance authorizing the requested use with such reasonable conditions as mutually approved by the applicant and Town Council and determined to be desirable in promoting public health, safety and general welfare.
(C) Conditions
(1) The conditional use rezoning application shall specify the use or uses that are intended for the property or any use or uses that are prohibited, as well as any additional conditions on the use of the property that the applicant may propose be conditions of the rezoning. The applicant may propose conditions regarding building design elements as defined in G.S. 160D-702 and other development considerations. Conditions are limited to:
(a) Those that address conformance of the development and use of the site to Town ordinances or officially adopted plans; or
(b) Those that address the impacts reasonably expected to be generated by the development and use of the site.
(2) An applicant may include a concept plan as a zoning condition in addition to written zoning conditions. A concept plan is a conceptual, illustrative plan that may not be used to eliminate or reduce any LDO or other requirement unless such elimination or reduction is designated as such and specifically provided for in this Ordinance. A concept plan shall show the overall site layout for the proposed development or a portion thereof including, but not limited to, development features such as:
(a) Land uses;
(b) Maximum number of residential units or non-residential square footage;
(c) Any building setbacks and/or buffers that exceed minimum requirements of the LDO;
(d) Natural open space areas to remain undisturbed;
(e) Improved open space areas, including stormwater management devices; and
(f) Vehicular and pedestrian access and circulation.
(3) No condition shall be less restrictive than the standards of the parallel general use district or the standards of any overlay district that applies to the property.
(4) No condition shall be made part of the application, or shall be attached to approval of the conditional use district, which specifies the ownership status, race, religion, or character of the occupants of housing units, the minimum value of improvements, or any other exclusionary device; which states that the use of the property will not be subject to regulations or restrictions set forth in this Ordinance which would apply to the property in any event, such as the regulations for an overlay district which covers the property; or which sets a minimum square footage of any structures subject to regulation under the North Carolina Residential Code for One- and Two-Family Dwellings.
(5) The applicant shall make no changes to proposed zoning conditions within fifteen (15) business days of a meeting at which the rezoning case is scheduled for consideration. Changes to proposed zoning conditions received after publication of the notice of the initial public hearing must be more restrictive than the conditions initially advertised. A revised affidavit meeting the requirements of Section 3.4.2(C)(6) which includes the revised conditions must be received by the Planning Department prior to the meeting at which the rezoning request is to be presented.
(6) The conditional use rezoning application shall include an affidavit listing all proposed zoning conditions and provisions and attaching any proposed concept plan. A revised affidavit shall be submitted each time the applicant proposes new zoning conditions or a new concept plan. The initial and revised affidavit shall state that:
(a) All zoning conditions and provisions are freely offered as proposed zoning laws, based solely on the property owner/applicant's independent judgment; and
(b) The property owner/applicant is not relying upon any statement by the Town staff or any member of the Town Council in connection with the decision to offer any zoning conditions, provisions or concept plans; and
(c) The property owner/applicant understands that other parties that have standing in the rezoning proceeding are relying on the validity of the zoning conditions, provisions and concept plans; and
(d) The property owner/applicant intends for all future owners of the property to be bound by the zoning conditions, provisions and concept plans, should the Town Council adopt them as part of the rezoning; and
(e) The property owner/applicant will take all appropriate measures to ensure that future property owners are aware of the zoning conditions, provisions and concept plans.
(D) Changes to Conditions of Approved Conditional Use District
(1) Written Zoning Conditions
Any change to written conditions attached to an approved conditional use rezoning shall be considered a change to the conditional use district, and shall be processed as a new conditional use application in accordance with the procedures set forth in this Section 3.4.2.
(2) Concept Plan
Staff may only approve changes to approved concept plans if such changes fall within the criteria allowed for administrative approval under Section 3.19, Minor Modifications. Proposed changes that do not fall within the criteria allowed for approval in Section 3.19 shall proceed in the same manner as the original rezoning.
(3) Eligibility for Zoning Amendments
If multiple parcels of land are subject to a conditional use district, the owners of individual parcels may apply for modification of the conditions applicable to their property so long as the modification would not result in other properties failing to meet the terms of the conditions. Any modifications approved shall only be applicable to those properties whose owners petition for the modification.
(A) Applicability and Scope
A planned development district (PDD) is a type of conditional zoning. No approval for construction of any on-site or off-site improvements in a PDD shall be granted until a master plan for the planned development is approved in accordance with the procedures and requirements of this section.
(B) Rezoning Procedures Apply
(C) Coordination with Review of Development Plans
An application for PDD master plan approval and any required application for development plan approval (Section 3.9) may be filed simultaneously. The review and processing of these applications shall be coordinated and consolidated as much as possible. The Development Review Committee, the Planning and Zoning Board, and the Town Council, however, shall render separate reports, recommendations, and decisions on each application based on the specific standards applicable to each approval.
(D) Procedure
(1) Pre-Application Conference
Before filing an application for PDD master plan approval, the applicant may request a pre-application conference with the Development Review Committee. See Section 3.1.5. The applicant shall provide the Development Review Committee with the following information at the pre-application conference:
(a) Size and location of the parcel proposed for development as a planned development;
(b) Proposed gross density and/or the amount of non-residential square footage for the proposed planned development and net density of individual parcels within the PDD;
(c) A concept plan showing general land uses proposed for the planned development including location, acreage, park, open space areas and school sites, if applicable;
(d) Number of acres and location of land within the parcel proposed for development as a planned development within a Watershed Protection Overlay district; and
(e) A schematic description of utility and circulation improvements for the planned development.
(2) Application Filing
An application for a PDD rezoning approval shall be filed and processed in accordance with the rezoning procedures set forth in Section 3.4.1. In addition, the application shall be accompanied by a master plan and supporting plans and documents as specified by the Planning Department. The application shall also include an affidavit, and a revised affidavit shall be submitted each time the applicant proposes revisions to the master plan, stating that:
(a) All zoning conditions and provisions are freely offered as proposed zoning laws, based solely on the property owner/applicant's independent judgment; and
(b) The property owner/applicant is not relying upon any statement by the Town staff or any member of the Town Council in connection with the decision to offer any zoning conditions or provisions; and
(c) The property owner/applicant understands that other parties that have standing in the rezoning proceeding are relying on the validity of the zoning conditions and provisions; and
(d) The property owner/applicant intends for all future owners of the property to be bound by the zoning conditions and provisions should the Town Council adopt them as part of the rezoning; and
(e) The property owner/applicant will take all appropriate measures to ensure that future property owners are aware of the zoning conditions and provisions.
(3) Review by Town
The Development Review Committee, the Planning and Zoning Board, and the Town Council shall review the application and the proposed master land use plan for compliance with the requirements of Section 3.4.1 and also this Section 3.4.3.
(4) Review by Other Bodies
The Development Review Committee may transmit the proposed master plan to the Parks, Recreation, and Cultural Resources Advisory Board, and/or any other board or commission, including the Wake County Board of Education, deemed appropriate by the Town Council for review and comment.
(E) Considerations
In addition to the general approval considerations for rezonings set forth in Section 3.4.1(E), and without limiting council’s broad discretion, council may, when reviewing a proposed PDD rezoning request, consider whether the PDD designation is necessary to address a unique situation or represents a substantial benefit to the Town, compared to what could have been accomplished through strict application of otherwise applicable zoning district standards.
(F) Effect of Approval
(1) The approval of a PDD application and a master plan shall not become effective until the applicant has submitted to the Planning Department a copy of the master plan incorporating all changes, if any, that were required as conditions to Town Council approval, and such additional information as the Town Council may have required as a condition of PDD or master plan approval.
(2) Upon receipt of all required submittals, the Planning Director shall mark and sign the master plan as approved, and return a marked and signed copy of the master plan to the applicant. A copy marked "ORIGINAL" shall be retained for the records of the Planning Department.
(3) Actual development of the property comprising the approved PDD shall be subject to all applicable state requirements, development plan approvals, and other permits and approvals otherwise required by this Ordinance. Such development shall comply with all requirements of this Ordinance unless the approved PDD documents specifically state otherwise.
(G) Submission of Conditions
Conditions proposed by the applicant in the master plan are limited to those that address conformance of the development and use of the site to Town ordinances or officially adopted plans, or those that address the impacts reasonably expected to be generated by the development and use of the site. The applicant may propose conditions regarding building design elements as defined in G.S. 160D-702 and other development considerations. After the town has published the initial notice of public hearing for the application, the applicant shall make no changes to the conditions that are less restrictive than those stated in the application, including, but not limited to, smaller setbacks; more dwelling or rooming units; greater height; more access points; new uses; and fewer improvements. However, more restrictive conditions or additional conditions may be added to the application if such conditions are received by the Planning Department in writing and signed by all owners of the property at least fifteen (15) business days before the date scheduled for consideration by the Town Council or the Planning and Zoning Board.
(H) Changes to Conditions of Approved Planned Development District
(1) Written Conditions
Any change to written conditions in the master plan shall be considered a change to the planned development district, and shall be processed as a new application in accordance with the procedures set forth in this Section 3.4.3.
(2) Master Plan
Staff may only approve changes to approved master plans if such changes fall within the criteria allowed for administrative approval under Section 3.19, Minor Modifications. Proposed changes that do not fall within the criteria allowed for approval in Section 3.19 shall proceed in the same manner as the original rezoning.
(3) Eligibility for Zoning Amendments
If multiple parcels of land are subject to a planned development district, the owners of individual parcels may apply for modification of the conditions applicable to their property so long as the modification would not result in other properties failing to meet the terms of the conditions. Any modifications approved shall only be applicable to those properties whose owners petition for the modification.
(A) Applicability
An MXD district is a type of conditional zoning. The MXD district is designed to be used in conjunction with the Mixed Use Overlay District (MUOD) as follows:
(1) Property which is within a Mixed Use Overlay District and within the Destination Center, Commercial Center Mixed Use, or Mixed Use Employment Center development category in the Shape chapter of the Cary Community Plan may be rezoned only to Mixed Use District consistent with the Comprehensive Plan.
(2) Property which is within a Mixed Use Overlay District and within the Commercial Center development category in the Shape chapter of the Cary Community Plan may be rezoned to Mixed Use District or any other general use or conditional use zoning district consistent with the Comprehensive Plan.
(3) Property which is within a Mixed Use Overlay District and is not within the Destination Center, Commercial Center Mixed Use, Mixed use Employment Center or Commercial Center development category in the Shape chapter of the Cary Community Plan may not be rezoned to Mixed Use District but may be rezoned to any other district consistent with the Comprehensive Plan.
(4) Property which is not within a Mixed Use Overlay District may not be rezoned to the Mixed Use District but may be rezoned to any other district consistent with the Comprehensive Plan.
(B) Application
(1) Pre-Application Conference
The applicant shall schedule and attend a Pre-Application Conference (see Section 3.1.5) in accordance with the calendar maintained by the Planning Department.
(2) Application Materials
Applications for rezoning to MXD shall be submitted in a form and in such number as specified by the Planning Director and available from the Planning Department. Applications shall include all of the following:
(a) Preliminary development plan or development plan, and table of uses
The applicant shall provide a preliminary development plan or, at the applicant's option, a detailed development plan (both hereinafter referred to as "preliminary development plan" or "PDP"). The preliminary development plan shall illustrate the proposed type and mix of uses, density or intensity of development, site design features, public spaces and the like which shall become a requirement of the rezoning if approved. The preliminary development plan shall only cover the area within the boundaries of the property proposed to be rezoned and shall be in sufficient detail to determine consistency with the Comprehensive Plan, LDO requirements, Community Appearance Manual and Site Design Standards. A detailed table of uses that specifies the allowed uses, square footages of nonresidential development, and the numbers and types of residential units shall be attached to and incorporated into the preliminary development plan. Detailed development requirements, including but not limited to, minimum lot size, lot width, building height, building setbacks, landscape buffer types and widths shall be specified on the plan or in a separate document which is attached to and incorporated into the preliminary development plan. Results of a tree survey for champion trees shall be shown on the plan, and an arborist report to verify size, species and health of each champion tree shall be provided in a separate document. Drawings shall be submitted in a form and in such number as specified by the Planning Director.
(b) Supporting Materials
The application shall also be accompanied by information as specified by the Planning Director, including but not limited to:
1. a statement regarding compliance with the Comprehensive Plan;
2. a statement analyzing the reasonableness of the proposed rezoning as required by G.S. 160D-605;
4. an affidavit. A revised affidavit shall be submitted each time the applicant proposes new zoning conditions or a new PDP. The initial and revised affidavit shall state that:
i. all zoning conditions and provisions are freely offered as proposed zoning laws, based solely on the property owner/applicant's independent judgment; and
ii. the property owner/applicant is not relying upon any statement by the Town staff or any member of the Town Council in connection with the decision to offer any zoning conditions or provisions; and
iii. the property owner/applicant understands that other parties that have standing in the rezoning proceeding are relying on the validity of the zoning conditions and provisions; and
iv. the property owner/applicant intends for all future owners of the property to be bound by the zoning conditions and provisions should the Town Council adopt them as part of the rezoning; and
v. the property owner/applicant will take all appropriate measures to ensure that future property owners are aware of the zoning conditions and provisions.
(C) Review and Approval Process
(1) Neighborhood Meeting
A neighborhood meeting shall be conducted in conformance with LDO Section 3.4.1(D)(4).
(2) Initial Public Hearing
(a) Process
The first public hearing on the proposed MXD rezoning shall be conducted by the Town Council. A rezoning to MXD will not be scheduled for an initial public hearing unless the application is found by planning staff to be complete and ready for consideration. Such hearing shall be noticed as required in Section 3.1.6 of this Ordinance, and notification should also be provided to all persons on the mailing list submitted pursuant to Section 3.4.5(B)(3)(d). At the public hearing:
2. The staff shall provide a report which evaluates the proposed rezoning, taking into consideration, among other factors, the Comprehensive Plan and the Land Development Ordinance; and
(b) Action by Town Council
Following the initial public hearing, the Town Council shall refer the proposed rezoning to the Planning and Zoning Board for a recommendation.
(3) Changes Made After the Public Hearing
The applicant shall make no changes to proposed zoning conditions within fifteen (15) business days of a meeting of the Planning and Zoning Board at which the rezoning case is scheduled for consideration.
(4) Planning and Zoning Board Recommendation
The Planning and Zoning Board shall consider the proposed rezoning in accordance with Section 3.4.1(D)(7).
(5) Changes After Consideration by the Planning and Zoning Board
After the Planning and Zoning Board has considered the application, the applicant shall make no changes to the conditions that are less restrictive than those stated in the application, including, but not limited to, smaller setbacks; more dwelling or rooming units; greater height; more access points; new uses; and fewer improvements. However, more restrictive conditions or additional conditions may be added to the application if such conditions are received by the Planning Department in writing and signed by all owners of the property at least fifteen (15) business days before the date scheduled for consideration by the Town Council.
(6) Town Council Action
Town Council shall take action on the rezoning request in accordance with Section 3.4.1.(D)(6) of the LDO.
(D) Effect of Approval
Following rezoning to the MXD district, all subsequent development plans submitted within the boundaries of the mixed use district shall be consistent with the terms of the approved district and shall be reviewed and approved pursuant to Section 3.9. Actual development of the property comprising the approved mixed use district shall be subject to all applicable state requirements, development plan approvals, and other permits and approvals otherwise required by this Ordinance. Such development shall comply with all requirements of this Ordinance unless the approved MXD District states otherwise.
(E) Changes to Approved MXD Districts
Staff may only approve changes to approved MXD districts if such changes fall within the criteria allowed for administrative approval under Section 3.19, Minor Modifications. Proposed changes that do not fall within the criteria allowed for approval in Section 3.19 shall proceed in the same manner as the original rezoning.
(F) Eligibility for Zoning Amendments
If multiple parcels of land are subject to a MXD district, the owners of individual parcels may apply for modification of the conditions applicable to their property so long as the modification would not result in other properties failing to meet the terms of the conditions. Any modifications approved shall only be applicable to those properties whose owners petition for the modification.
(G) Waiting Period for Subsequent Applications
The waiting period for subsequent rezoning applications on the same property after action by the Town Council or withdrawal of the request by the applicant shall be as provided in Section 3.4.1(G) of this Ordinance.
(Ord. No. 04-001, 1-8-04; Ord. No. 04-007, 7-15-04; Ord. No. 04-011, 9-9-04; Ord. No. 06-009, 4-27-06; Ord. No. 2007-04, 3-22-07; Ord. No. 2007-21, 12-13-07; Ord. No. 2009-LDO-06, 8-13-09; Ord. No. 2011-LDO-04, 11-17-11; Ord. No. 2012-LDO-08, 10-11-12; Ord. No. 13-LDO-01, 2-13-13; Ord. No. 2013-LDO-02, 6-13-13; Ord. No. 2014-LDO-01, 1-9-14; Ord. No. 2014-LDO-03, 8-14-14; Ord. No. 2014-LDO-05, 12-11-14; Ord. No. 2015-LDO-001, 4-21-15; Ord. No. 2015-LDO-003, 7-23-15; Ord. No. 2015-LDO-004, 8-27-15; Ord. No. 2015-LDO-006, 12-10-15; Ord. No. 2017-LDO-01, 1-24-17; Ord. No. 2017-LDO-02, 3-30-17; Ord. No. 2017-ACT-02, 12-14-17; Ord. No. 2018-LDO-02, 8-9-2018; Ord. No. 2019-LDO-03, 10-10-19; Ord. No. 2020-LDO-01, 5-7-20; Ord. No. 2021-LDO-01, 6-24-21; Ord. No. 2022-LDO-02, 4-28-22; Ord. No. 2022-LDO-04, 11-17-22; Ord. No. 2023-LDO-03, 6-22-23)
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