(A) Applicability. The purpose of this section is to implement the provisions of G.S. § 160A-385.1 pursuant to which a statutory zoning vested right is established upon the approval of a site specific development plan.
(B) Establishment.
(1) A zoning vested right shall be deemed established upon the valid approval, or conditional approval, by the Town Council, of a site specific vesting plan.
(2) The approving authority may approve a site specific vesting plan upon such terms and conditions as may reasonably be necessary to protect the public health, safety and welfare.
(3) Notwithstanding (B)(1) and (2) of this section, approval of a site specific vesting plan with the condition that a variance be obtained shall not confer a zoning vested right unless and until the necessary variance is obtained.
(4) A site specific vesting plan shall be deemed approved upon the effective date of the approval authority's action or ordinance relating thereto.
(5)
The establishment of a zoning vested right shall not preclude the application of overlay zoning that imposes additional requirements, but does not affect the allowable type or intensity of use, or ordinances or regulations that are general in nature and are applicable to all property subject to land use regulation by the town, including, but not limited to, building, fire, plumbing, electrical and mechanical codes. Otherwise applicable, new or amended regulations shall become effective with respect to property that is subject to a site specific vesting plan upon the expiration or termination of the vested right in accordance with this chapter.
(6) A zoning vested right is not a personal right, but shall attach to and run with the applicable property. After approval of a site specific vesting plan, all successors to the original landowner shall be entitled to exercise such right while applicable.
(7) A site specific vesting plan, specifically includes preliminary plats, site plans, construction plans, conditional zoning master plans, and special use permits.
(8) Substantial commencement of a development, as determined by the Planning Director and as it relates to establishment of a vested right, shall specifically include consideration of the following:
(a) The development has received and maintained a valid erosion and sedimentation control permit and conducted grading activity on a continuous basis and not discontinued it for more than 30 days;
(b) The development has installed substantial on-site infrastructure;
(c) The development has received and maintained a valid building permit for the construction and approval of a building foundation.
(9) Even if work has substantially commenced, a development approval still expires if development work is discontinued for a period of more than 24 consecutive months, pursuant to G.S.
§
160D-108.
(C) Approval procedures.
(1) Except as otherwise provided in this section, an application for site specific vesting plan approval shall be processed in accordance with the procedures established by ordinance and shall be considered by the designated approval authority for the specific type of zoning or land use permit or approval for which application is made.
(2) Notwithstanding the provisions of (C)(1) of this section, if the authority to issue a particular zoning or land use permit or approval has been delegated by ordinance to a board, committee or administrative official other than the Town Council or Board of Adjustment, in order to obtain a zoning vested right, the applicant must request in writing at the time of application that the application be considered and acted on by the Town Council or Board of Adjustment, following notice and a public hearing as provided in G.S. §160D-601.
(3) In order for a zoning vested right to be established upon approval of a site specific vesting plan, the applicant must indicate at the time of application, on a form to be provided by the town, that a zoning vested right is being sought.
(4) Each map, plat, site plan or other document evidencing a site specific vesting plan shall contain the following notation: "Approval of this plan established a zoning vested right under G.S. § 160D-108. Unless terminated at an earlier date, the zoning vested right shall be valid until (date)."
(5) Following approval or conditional approval of a site specific vesting plan, nothing in this chapter shall exempt such a plan from subsequent reviews and approvals to ensure compliance with the terms and conditions of the original approval, provided that such reviews and approvals are not inconsistent with the original approval.
(6) Nothing in this chapter shall prohibit the revocation of the original approval or other remedies for failure to comply with applicable terms and conditions of the approval or this chapter.
(D) Duration.
(1) A zoning right that has been vested as provided in this chapter shall remain vested for a period of two years unless specifically and unambiguously provided otherwise pursuant to (D)(2) of this section. This vesting shall not be extended to any amendments or modifications to a site specific vesting plan unless expressly provided by the approval authority at the time the amendment or modification is approved.
(2) Notwithstanding the provisions of (D)(1) of this section, the approval authority may provide that rights shall be vested for a period exceeding two years by not exceeding five years where warranted in light of all relevant circumstances, including, but not limited to, the size of the development, the level of the development, economic cycles, and market conditions. These determinations shall be in the sound discretion of the approval authority at the time the site specific vesting plan is approved.
(3) Notwithstanding the provisions of (D)(1) of this section, a multi-phased development as defined in G.S. 160D-108(d)(4) shall be vested for the entire development and the vesting shall be valid for a period of seven years from the time a site plan is approved for the initial phase of the multi-phase development.
(4) Upon issuance of a building permit, the expiration provisions of G.S. § 160D- 403(c) and the revocation provisions of G.S. § 160D-403(f) shall apply, except that a building permit shall not expire or be revoked because of the running of time while a zoning vested right under this section is outstanding.
(E) Termination. A zoning right that has been vested as provided in this chapter shall terminate:
(1) At the end of the applicable vesting period with respect to buildings and uses for which no valid building permit applications have been filed;
(2) With the written consent of the affected landowner;
(3) Upon findings by the Town Council, by ordinance after notice and an evidentiary hearing, that natural or man-made hazards on or in the immediate vicinity of the property, if uncorrected, would pose a serious threat to the public health, safety, and welfare if the project were to proceed was contemplated in the site specific vesting plan;
(4) Upon payment to the affected landowner of compensation for all costs, expenses, and other losses incurred by the landowner, including, but not limited to, all fees paid in consideration of financing, and all architectural, planning, marketing, legal, and other consultant's fees incurred after approval by the city, together with interest thereon at the legal rate until paid. Compensation shall not include any diminution in the value of the property which is cause by such action;
(5) Upon findings by the Town Council, by ordinance after notice and an evidentiary hearing, that the landowner or his or her representative intentionally supplied inaccurate information or made material misrepresentations which made a difference in the approval by the approval authority of the site specific development plan; or
(6) Upon the enactment or promulgation of a state or federal law or regulation that precludes development as contemplated in the site specific development plan, in which case the approval authority may modify the affected provisions, upon a finding that the change in state or federal law has a fundamental effect on the plan, by ordinance after notice and a hearing.
(F) Voluntary annexation. A petition for annexation filed with the town under G.S. § 160A-31 or G.S. § 160A-58.1 shall contain a signed statement declaring whether or not any zoning vested right with respect to the properties subject to the petition has been established under G.S. § 160D-108. A statement that declares that no zoning vested right has been established under G.S. § 160D-108, or the failure to sign a statement declaring whether or not a zoning vested right has been established, shall be binding on the landowner and any such zoning vested right shall be terminated.
(G) Limitations. Nothing in this chapter is intended or shall be deemed to create any vested right other than those established pursuant to G.S. § 160D-108 or common law.
(H) Repealer. In the event that G.S. § 160D-108 is repealed, this chapter shall be deemed repealed and the provisions hereof no longer effective.
(I) Effective date. This chapter shall be effective and shall only apply to site specific vesting plans approved on or after November 18, 1991.
(Ord. 2005-11-02, passed 11-21-05; Am. Ord. 2021-02-02, passed 2-15-21)