UTBs are part of Cary's overall zoning, land subdivision and land use regulations. Cary has collected these regulations together in Cary's Land Development Ordinance (LDO). UTBs are intended to assist Cary in accomplishing the broad and important purposes of the LDO stated in 1.3 of the LDO as well as the specific purposes stated in Sections 1.3.1-1.3.12 and 14.6.1. In any specific development plan, Cary’s reviews the entire proposed development and determines whether the proposed development in its entirety satisfies the LDO. Cary recognizes that UTBs will affect different property and projects differently and that all circumstances or applications of UTBs cannot be foreseen. Therefore, Cary has established a process by which the width of Zone 3 of the UTB may be modified in certain limited circumstances based upon review and approval of an applicant's application for modification which shall include the overall development plan. Any modification granted shall be conditioned upon the implementation of the related development plan and shall be conditioned upon the applicant providing mitigation as set forth below.
(A) Procedures for Requesting Modifications to Zone Three
The Zoning Board of Adjustment, after receiving comment from various Cary departments which review the proposed development plan pursuant to the LDO, may reduce the total area of Zone Three after establishing the following at a quasi-judicial hearing:
(2) The mitigation of impacts offered by the applicant as part of the proposed development plan significantly outweighs the impacts of the reduction to the General UTBs proposed by the applicant; and
(3) The impact of the reduction in the General UTB is balanced by mitigation, as required below:
(a) Mitigation on a 1:1 ratio for restoration of a degraded buffer or for protection of ephemeral streams contiguous to protected streams; or
(b) Mitigation on a 3:1 ratio for preservation of an existing buffer; or
(c) Mitigation on a 10:1 ratio for preservation of open space.
(4) The requirements of Section 14.6.12(G)(3), (4), (5), (6) and (7) shall apply to any mitigation required by Section 14.6.10(A)(3) above. In addition, the applicant shall submit a restoration or enhancement plan meeting the requirements of Section 14.6.12(G)(5) together with its request for modification.
(5) The preferred mitigation area is off-site. However, in some cases mitigation requirements may be met by protecting land on-site which would otherwise not be protected through another avenue such as buffer, wetlands, floodplain, or open space requirements.
(B) In addition to the mitigation required and the considerations provided above, the Zoning Board of Adjustment may consider other factors such as the following:
(1) Whether a substantial conflict exists between the General UTBs and other provisions and provisions of the LDO (e.g., the appropriate layout of streets in a proposed development conflicts with the location of the General UTBs);
(2) Whether approvals of other governmental agencies impede the effectiveness of the General UTBs or otherwise impact the layout or development of the proposed development; or
(3) Any other information which may be relevant to the Zoning Board of Adjustment determination that the development plan otherwise satisfies the purposes and goals of the LDO.
(C) Notwithstanding the foregoing, in the event the applicant provides written evidence that the State of North Carolina has granted the applicant a variance to the riparian buffer required by the State of North Carolina, or if Cary has granted a minor variance as described below in section 14.6.11, the Planning Director shall grant a modification to the UTBs applicable to such applicant sufficient to permit such applicant to utilize the State variance granted.