(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.