(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)