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The Zoning Board of Adjustment shall not approve a proposed special use and any accompanying development plan unless and until it determines that the proposed use meets all the criteria set forth below, based on the evidence and testimony received at the quasi-judicial evidentiary hearing or otherwise appearing in the record of the case:
(A) The proposed use or development of the land will generally conform with the Comprehensive Plan, other official plans and manuals or documents adopted by the Town;
(B) The proposed use or development of the land will not materially endanger the public health or safety;
(C) The proposed use is reasonably necessary for the public health or general welfare, such as by enhancing the successful operation of the surrounding area in its basic community functions or by providing an essential service to the community or region;
(D) The proposed use or development of the land will not substantially injure the value of adjoining or abutting property;
(E) The proposed use or development of the land will be in harmony with the scale, bulk, coverage, density, and character of the area or neighborhood in which it is located;
(F) The proposed use is appropriately located with respect to transportation facilities, water supply, fire and police protection, waste disposal, and similar facilities; and
(G) The proposed use will not cause undue traffic congestion or create a traffic hazard or unsafe pedestrian pathway.
(A) Conditions
In approving a special use, the Zoning Board of Adjustment may attach reasonable and appropriate conditions and safeguards. 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. Conditions and safeguards imposed under this subsection shall not include requirements for which the Town does not have authority under statute to regulate nor requirements for which the courts have held to be unenforceable if imposed directly by a 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 G.S. 160A-307, or other unauthorized limitations on the development or use of land.
(B) Subsequent Permits and Approvals
Approval of an application to establish a special use authorizes the applicant to obtain building permits, certificates of occupancy, development plan approval, and other permits or approvals that the Town may require for the proposed development. If the special use included a development plan that must be approved by the Zoning Board of Adjustment, then approval of the special use is contingent on approval of the development plan. The Planning Department shall review applications for these permits for compliance with the terms of the special use approval. A permit, certificate, or other approval shall be issued or valid only for work that complies with the terms of the special use approval.
(C) Transferability of Approval
A special use approval is not transferable from one (1) property to another, but may be transferred to a successor-in-interest to the property.
(D) Resubmission of Denied Applications
No application for approval of a special use shall be filed with or accepted by the Planning Department that is identical or substantially similar to an application that has been denied by the Zoning Board of Adjustment within the previous year. This waiting period requirement may be waived in an individual case, for good cause shown, by the affirmative vote of four-fifths (4/5) of the members of the Zoning Board of Adjustment.
(E) Recording of Approved Special Uses
Upon expiration of the appeal period, a copy of the signed resolution approving a special use should be recorded with the applicable county’s Register of Deeds.
Any changes to the terms or conditions of approval of the special use shall require separate review and approval by the Zoning Board of Adjustment. Any application for approval of such a change shall be filed, processed, reviewed, and approved or denied in the manner set forth in this section for an original application for special use approval. This section shall not apply, however, to modifications to the approved development plan for the special use, which are governed by Section 3.9 of this Ordinance.
Every decision on a request for a special use permit shall be subject to review by the superior court by proceedings in the nature of certiorari pursuant to G.S. 160D-1402. A petition for review shall be filed with the clerk of Superior Court by the later of thirty (30) days after the decision is effective, or after a written copy thereof is given in accordance with Section 3.8.2(E)(4). When first-class mail is used to deliver notice, three (3) days shall be added to the time to file the petition.
(Ord. No. 2007-21, 12-13-07; Ord. No. 2011-LDO-01, 1-11-11; Ord. No. 2012-LDO-03, 5-10-12; Ord. No. 2012-LDO-04, 5-24-12; Ord. No. 2013-LDO-04, 9-26-13; Ord. No. 2014-LDO-03, 8-14-14; Ord. No. 2019-LDO-01, 9-26-19; Ord. No. 2019-LDO-03, 10-10-19; Ord. No. 2021-LDO-01, 6-24-21)
(A) This section sets forth the procedures for review and approval of both subdivision plats and development plans.
(B) A development plan is required for all residential and non-residential development, as defined in Section 12.4, with the exception of the following:
(1) One detached dwelling or one duplex dwelling, in both cases including all associated accessory structures and accessory uses, on an existing lot of record.
(A) Pre-Application Conference Required
A pre-application conference is required prior to submission of most new development plan applications and for some modifications to already-approved plans; see Section 3.1.5 for instances in which a conference is not required. Generally, minor modifications to approved plans do not need a pre-application conference.
(B) Application Materials
All development plan applications shall include a set of application materials prepared pursuant to this section. Approval of these materials shall be a prerequisite to the review and approval procedures set forth in this section.
(1) General Application Requirements
Applications shall be filed with the Planning Department and shall consist of maps or plans that show the proposed development layout and related information and drawings, as specified by the Planning Director and prepared to the specifications of the Planning Director. All proposed or existing rights of way, easements, restrictive covenants or other matters of record that are known or should reasonably be known by the property owner(s) and that may affect the property shall be disclosed. Data provided shall be accurate. Submission of an application containing inaccurate, misleading, or false information, including but not limited to incorrect measurement or mathematical results, or submission of an application that omits required information, shall be grounds for rejection or refusal to act on the application and shall constitute a violation of this Ordinance and be subject to appropriate penalties and remedies set forth in Chapter 11.
(a) The application shall provide a statement identifying any and all modifications from the design standards or improvement requirements set forth in Chapters 7 and 8 that the applicant will be requesting, including requests for Minor Modifications (see Section 3.19) or Variances (see Section 3.20).
(b) The application shall also be accompanied by other applications, if appropriate, such as a Special Use application (Section 3.8) and/or an owner-initiated annexation petition.
(c) Any applicant desiring to make a payment of money in lieu of land dedication pursuant to Section 8.2.2 of this Ordinance shall attach a letter to the plan application requesting approval to make payment in lieu of dedication of land.
(d) A Traffic Management Plan as further described in Section 8.1.1 shall be submitted with an application for any proposed school planned to have an enrollment of two hundred (200) or more students and for any proposed religious or other assembly use (i.e., club, lodge, or hall; or special event center) planned to have a capacity of two hundred (200) or more persons. The Plan shall be in a format as specified by the Transportation and Facilities Department Director.
(e) During review of the application, the Planning Department, the Development Review Committee, and/or the Town Council may require such additional information as may be necessary to review the submission, if applicable.
(2) Prohibiting Phasing to Avoid Requirements
It is the Town's intent to ensure that larger developments are not phased or subdivided in piecemeal fashion in order to comply with numerical requirements of this Ordinance. Two (2) or more developments, represented by their owners or developers to be separate developments, shall be aggregated and treated as a single development when they are determined to be part of a unified plan of development and are physically proximate to one another. The following factors will be considered to determine whether there is a unified plan of development:
(a) There is unified ownership, indicated by the fact that:
1. The same person has retained or shared control of the developments;
2. The same person has ownership or a significant legal or equitable interest in the developments; or
3. There is common management of the developments controlling the form of physical development or disposition of parcels of the development.
(b) There is a reasonable closeness in time between the completion of eighty (80) percent or less of one (1) development and the submission to the Town of a master plan or series of plans or drawings for the other development that is indicative of a common development effort.
(c) The voluntary sharing of infrastructure that is indicative of a common development effort or is designated specifically to accommodate the developments.
(d) There is a common advertising scheme or promotional plan in effect for the developments.
(e) Any information provided by the applicant that the project is not being phased or subdivided to avoid requirements of this Ordinance.
(3) Two Types of Plans
The applicant has the option to submit either a "full plan" application or a "sketch plan" application:
(a) Full Plan Application
A full plan application shall include information and supporting materials required as specified by the Planning Director. Once the application is complete, the Planning Department shall transmit the application to the Development Review Committee. If the Committee determines that the materials comply with all applicable requirements of this Ordinance and Town specifications, then the Planning Director shall mark the plans as approved. If the Committee determines that the materials do not comply with all applicable requirements, or that meeting the applicable requirements would require a change to the plan that could not be approved by the Planning Director using the Minor Modification process (see Section 3.19), then the Development Review Committee shall submit the plans to the Zoning Board of Adjustment for review, modification, and approval or denial.
(b) Sketch Plan Application
At the option of the applicant, a "sketch plan" instead of a full plan may be submitted. The information and supporting materials required shall be as specified by the Planning Director. This option is intended to give an applicant a preliminary review of their proposed development without having to prepare complete construction plans, which are required for a full plan application. This option is a two (2)-step process, with the applicant first submitting for approval of a sketch plan, followed by submittal of the construction plans (incorporating the sketch plan approval) in order to receive complete "full plan" approval to move forward to construct the proposed development.
1. Approval of Sketch Plan Conditional on Approval of Construction Drawings
If the application is submitted under the sketch plan submission option, approval of the sketch plan shall automatically be conditioned on the Development Review Committee's subsequent approval of construction drawings for all improvements required in the plan.
2. One Year Deadline to Submit Construction Drawings
Construction drawings shall be submitted to the Planning Department no more than one (1) year after the date the sketch plan is approved. Failure to submit the construction drawings within this one (1) year period shall result in the lapse of approval of the sketch plan. The Planning Director may grant a single, one (1) year extension of this time limit for good cause shown, upon receiving a request from the applicant.
3. Review by Development Review Committee of Construction Drawings Following Approval of a Sketch Plan
a. If the Committee determines that the materials comply with all requirements of this Ordinance and applicable Town specifications, then the Planning Director shall mark the construction drawings as approved.
b. If the Development Review Committee determines that the materials do not comply with all applicable requirements, or that meeting the applicable requirements would require a change to the plan that could not be approved by the Planning Director using the Minor Modification process, then the Development Review Committee shall submit the construction drawings to the Zoning Board of Adjustment for review, modification, and approval or denial.
(C) Owner-Initiated Annexation Petition Required
If the property within the proposed plan boundaries requires annexation into the Town limits, then official approval of the plan connecting to Town utilities is contingent on annexation into the Town. See Section 3.1.10.
(D) Coordination of Plan Review with Special Use and/or Subdivision Plat Review
(1) The review and approval of development plans should be coordinated with the review and approval of Special Uses (see Section 3.8) to the maximum extent possible. An application for approval of a development plan may be submitted at the same time as an application for approval of a special use for the same development. However, the Development Review Committee shall render separate recommendations and the decision-making body (if subject to its approval) shall render a separate decision on each application, recognizing the applications as distinct and subject to different standards for approval. However, the decision-making body may choose to approve both applications with one (1) vote.
(2) Application for a subdivision plat may only be submitted following development plan approval, unless a development plan is not required (see Section 3.9.3(B)).
(E) Plans in Nonconforming Structures or Lots
If a proposed plan involves one (1) or more structures or lots that do not conform to the regulations of the district in which the plan is located, then, this plan may be reviewed as a Re-use/Redevelopment Plan provided that the proposal is consistent with the requirements in Section 3.11.2. If the proposal is not consistent with Section 3.11.2, or includes an expansion of the nonconforming use, structure, or site, beyond that allowed by Section 3.11.3 then such proposal shall be required to obtain special use approval (see Section 3.8) unless the applicant has previously obtained the necessary variances from the Zoning Board of Adjustment. In cases where a variance has been granted, such plans would follow the normal development plan process.
(F) Approval Authority
(1) Approval by Zoning Board of Adjustment
The Zoning Board of Adjustment shall have final decision-making authority on the following types of development plans, which shall be reviewed using the procedure set forth in this Section:
(a) Plans for uses that require approval of a Special Use; and
(b) Plans that propose one hundred (100) residential units or more, or that would construct one hundred thousand (100,000) square feet of nonresidential floor area or more, or that would construct a new drive-through facility or expand an existing drive-through facility; excepting plans meeting the following criteria, which plans shall be reviewed by the Planning Director:
1. A rezoning for the property was approved within the two (2) calendar years prior to the date of application for the development plan and the plan is not otherwise subject to review by the Zoning Board of Adjustment pursuant to Section 3.9.2(F)(1)(a); or
2. Plans for property (a) subject to a development agreement approved by the Town pursuant to G.S. Chapter 158, Article 1; Chapter 160D, Article 10; or 160D-1315; and (b) for which no zoning condition requires approval of the plan by the Town Council.
(2) Approval by Town Council
The Town Council shall have final decision-making authority on the following types of development plans, which shall be reviewed using the procedure set forth in this Section.
(a) Plans for property within an approved Mixed Use District where conditions of the associated preliminary development plan require action by Town Council.
(3) Approval by Planning Director
The Planning Director shall have final decision-making authority on all development plans not subject to review by the Town Council or Zoning Board of Adjustment. Such plans shall be reviewed for compliance with all requirements of this Ordinance and applicable Town specifications.
(G) Planning Director Review and Approval Process
(1) Within ninety (90) days from the submittal or any re-submittal of the application, the Planning Director shall review the plan and the comments and recommendations of the Development Review Committee. The Director shall either approve or deny the plan within this time period unless the applicant has caused additional delay or failed to provide necessary or accurate information.
(2) If the Planning Director denies the plan, then the reasons for the denial shall be stated in the record of action on the plan.
(3) In the event the Planning Director denies a plan, an appeal may be filed with the Zoning Board of Adjustment pursuant to Section 3.21 of this Ordinance.
(H) Town Council and Zoning Board of Adjustment Review and Approval Process
(1) Action by Town Council or Zoning Board of Adjustment
The application, recommendations, and comments of the Development Review Committee and other appropriate review bodies shall be forwarded to the Town Council or Zoning Board of Adjustment, as appropriate, for action. The Town Council or Zoning Board of Adjustment shall review this information, hold a quasi-judicial evidentiary hearing, and approve, conditionally approve, or reject the plan. Notice of the hearing shall be provided and the hearing shall be conducted in accordance with Sections 3.1.6 and 3.1.7. The decision-making body may approve, or conditionally approve, any plan by a majority vote. The decision shall be reduced to writing and reflect the decision-making body's determination of contested facts and their application to the applicable standards. The written decision shall be approved by Town Council and signed by the Mayor or his designee, or approved by the Zoning Board of Adjustment and signed by the Chair of the Zoning Board of Adjustment or his designee. The decision of either decision-making body is effective upon filing with the Planning Department. The decision shall be delivered by personal delivery, electronic mail, or by first-class mail to the applicant, property owner, and to any person who has submitted a written request for a copy prior to the date the decision becomes effective. The person required to provide notice shall certify that proper notice has been made.
(I) Approval Criteria
A development plan may be approved by the Town Council or Zoning Board of Adjustment only if it meets the criteria set forth below:
(1) The plan complies with all applicable requirements of this Ordinance, including all applicable Town specifications and official plans and manuals or documents adopted by the Town. (Note: Plans within Planned Developments may be subject to different requirements based on the approval).
(2) The plan adequately protects other property, or residential uses located on the same property, from the potential adverse effects of the proposed development;
(3) The plan provides harmony and unity with the development of nearby properties;
(4) The plan provides safe conditions for pedestrians or motorists and prevents a dangerous arrangement of pedestrian and vehicular ways;
(5) The plan provides safe ingress and egress for emergency services to the site; and
(6) The plan provides mitigation for traffic congestion impacts reasonably expected to be generated by the project.
(J) Recording of Instrument for Required Dedications
(1) Approval of a development plan shall automatically be conditioned upon the applicant dedicating any and all lands, interests in land, and rights-of-way required to be dedicated as part of the approved plan through an instrument in a form approved by the Town and recorded with the Wake County Register of Deeds.
(2) For development plans not requiring a subdivision plat, such instruments shall be recorded prior to the issuance of a building permit. In addition, the applicant shall cause the Wake County Register of Deeds to mail a copy of the original recorded instruments to the Transportation and Facilities Department.
(3) For development plans requiring a subdivision plat, such instruments must be recorded prior to, or in conjunction with the recording a subdivision plat for the development unless otherwise allowed within this Ordinance. Failure to satisfy this requirement shall render approval of the plan null and void.
(K) Effect of the Plan Approval
(1) Approval of a plan shall authorize the applicant to proceed with any applications for environmental permits, building permits, and other permits and approvals required in order to develop the property in conformity with the approved plan. A permit, certificate, or other approval may be issued by the Town only if it conforms to the approved plan, and the applicant has made all dedications and improvements required by this Ordinance, except where the non-compliance is the subject of a modification to the plan approved pursuant to Section 3.19, Minor Modifications or is otherwise permitted by this Ordinance.
(L) Effect of Decision on Successive Applications
(1) When a plan application has been denied by the Town Council or the Planning Director, no plan application covering the same property with similar land use shall be accepted or considered within twelve (12) months after the date of the denial.
(2) 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.
(M) Changes to Approved Plans
Changes to approved development plans may be requested by the applicant and may be approved by the Planning Director under the procedure and criteria set forth in Section 3.19, Minor Modifications.
(A) Purpose
This Section sets forth specific provisions applicable to the review and approval of applications for subdivisions of land. These specific provisions supplement the common procedures set forth in Section 3.9.2.
(B) Applicability
A development plan and subdivision plat are required for all developments that meet the "subdivision" definition (see Chapter 12), except that only plat recordation is required for the division of a tract or parcel of land in single ownership if all the following criteria are met:
(1) The tract or parcel to be divided is not exempted under subdivision (2) of the definition of Subdivision in Section 12.4.
(2) No part of the tract or parcel to be divided has been divided under this subsection in the ten (10) years prior to division.
(3) The entire area of the tract or parcel to be divided is greater than five (5) acres.
(4) After division, no more than three (3) 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.
(C) Prerequisites for Other Approvals
(1) No building permit or certificate of occupancy may be issued for any building, structure, or improvement located within a subdivision, and no plat for a subdivision may be recorded with the applicable Register of Deeds, until a development plan has been approved, all required dedications of land have been made, and all required improvements have been installed in accordance with the procedures and requirements of this section.
(2) The Town shall not accept or maintain any street, and shall not extend or connect any street lighting, water service, or sanitary sewer service to any subdivision of land, until and unless a plat for the subdivision has been approved and recorded in accordance with the requirements set forth in this Section.
(D) [Reserved]
(E) Review and Approval of Final Plats
(1) Required Dedications, Improvements, Payments, and Guarantees
Prior to approval of the plat, all dedications and improvements, or payments and guarantees in lieu thereof that are required by Chapter 8 of this Ordinance shall be installed on and/or finalized for the property.
(2) Application Requirements
An application for plat approval under this Section may be filed only by all of the owners of the property or by an agent, lessee, or contract purchaser specifically authorized by all of the owners to file such application. Where an agent, lessee, or contract purchaser files the application, the agent, lessee, or contract purchaser shall provide the Town with written documentation that all of the owners of the property have authorized the filing of the application.
(3) Application Filing
Preliminary copies and required fees for plat approval shall be submitted to the Planning Director.
(4) Planning Director Review and Approval of Plat
(a) Approval Criteria for Plats
The Planning Director shall approve the plat if it is in substantial conformity to the approved development plan and the applicant has carried out the improvements shown on the development plan and made all dedications and improvements, or payments and guarantees in lieu thereof, as associated with the approved plan and as required by Chapter 8. The district highway engineer shall be given an opportunity to make recommendations concerning a subdivision plat if the plat contains proposed State streets, State highways, or related drainage systems.
(b) Processing of Approved Plat
If all conditions and requirements for approval of the plat have been met, the Planning Director or designee shall sign all copies of the plat for recording. The Planning Department shall return the approved and signed copies to the applicant, one (1) of which the applicant shall file with the applicable Register of Deeds within thirty (30) days after approval.
(5) Effect of Approval of a Plat
The recording of the approved plat with the Register of Deeds shall authorize the subdivider, owner, or any subsequent developer of the property, to proceed with such applications for permits as this Ordinance may require for development on the property. No building permit may be issued until an approved subdivision plat has been recorded.
(6) Appeal of Denial
In the event the Planning Director denies a plat, an appeal may be made pursuant to G.S. 160D-1403(b).
(F) Actions by Register of Deeds
The Town shall file a copy of this Ordinance with the applicable county’s Register of Deeds. After that filing, the Register of Deeds shall not file or record a plat of subdivision located within the corporate limits or extraterritorial jurisdiction of the Town without the approval of the Town. The landowner shown on a plat submitted for recording, or his or her authorized agent, shall sign a statement on the plat stating whether or not any land shown on the plat is within the corporate limits or extraterritorial jurisdiction of the Town. The filing or recording of a plat without the approval of the Town as required by this Section shall be null and void. The Clerk of the Superior Court of the applicable county shall not order or direct the recording of a plat where such recording would conflict with this Section.
(G) Restriction on Sale or Transfer of Subdivided Land without Approved Plat
Any person who transfers or sells any land located within the corporate limits or extraterritorial jurisdiction of the Town by reference to a plat that has not been approved by the Town and recorded with the applicable county’s Register of Deeds shall be guilty of a misdemeanor with the exception of presale contracts as authorized in G.S. 160D-807. The description by metes and bounds in the instrument of transfer or other document used in the process of selling or transferring shall not exempt the transaction from such penalties. The Town also may enjoin such transfer or sale by filing an action for an injunction.
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