Development projects often occur in multiple phases over several years, requiring a long-term commitment of both public and private resources, creating community impacts and opportunities that are difficult to accommodate within traditional zoning processes, and require careful coordination of public capital facilities planning, financing, and construction schedules and phasing of the private development. Recognizing this, the NC General Assembly has authorized local governments to enter into development agreements with developers, subject to the procedures outlined in this section. When entering into such agreements, Town of Fairmont may not exercise any authority or make any commitment not authorized by general or local act and may not impose any tax or fee not authorized by otherwise applicable law. A development agreement shall not exempt the property owner or developer from compliance with the State Building Code or State or local housing codes that are not part of the town’s development regulations. When the Town Board of Commissioners approves the rezoning of any property associated with a development agreement executed and recorded pursuant to this section, the provisions of G.S. § 160D-6-5(a) apply. Development authorized by a development agreement shall comply with all applicable laws, including all ordinances, resolutions, regulations, permits, policies, and laws affecting the development of property, including laws governing permitted uses of the property, density, intensity, design, and improvements. For similar state law provisions, refer to G.S. § 160D-1001(a)-(d).
(A) Definitions.
(1) DEVELOPMENT. The planning for or carrying out of a building activity, the making of a material change in the use or appearance of any structure or property, or the dividing of land into two or more parcels.
(2) PUBLIC FACILITIES. Major capital improvements, including, but not limited to, transportation, sanitary sewer, solid waste, drainage, potable water, educational, parks and recreational, and health systems and facilities. For similar state law provisions, refer to G.S. § 160D-1002.
(B) Authority. The town may enter into a development agreement with a developer, subject to the procedures and standards of this section. In entering into such a development agreement, the town may not exercise any authority or make any commitment not authorized by general or local act, and may not impose any tax or fee not authorized by otherwise applicable law. If more than one local government is made party to an agreement, the agreement must specify which local government is responsible for the overall administration of the development agreement. For similar state law provisions, refer to G.S. §§ 160D-1001(b) and 160D-1006(c).
(C) Applicability. The development agreement procedure allows the town and the developer to enter into an agreement for completion of the development, subject to compliance with specific requirements set down in the agreement. A development agreement may be applied to a development of any size, however, all proposed developments of at least three buildable acres shall be subject to a development agreement. The terms of a development agreement apply to all successors in interest. For similar state law provisions, refer to G.S. § 160D-1004.
(D) Duration. Development agreement issued by the town shall be of a reasonable length of time based upon the complexity of the development proposed in the agreement. For similar state law provisions, refer to G.S. § 160D-1004.
(E) Development agreement standards. For consideration of the town to participate in a development agreement, a development subject to the agreement must meet the following criteria:
(1) Planned development. The information regarding the property subject to the development agreement shall contain details of the property and the planned development in accordance with the NC State General Statute requirements.
(2) Phasing and duration of development. The development shall demonstrate phasing and participation in the proposed agreement shall be of reasonable terms that shall be specified in the agreement.
(3) Impact on capital improvements. The development shall demonstrate the impact on existing and future provisions of capital improvements by the town including at least one of the following:
transportation, potable water, sanitary sewer, solid waste, stormwater management, educational, parks and recreational, and health systems and facilities.
(F) Contents of application. An application for a development agreement shall include a proposed development agreement that shall, at a minimum, address all of the following:
(1) A legal description of the property subject to the agreement and the names of its legal and equitable property owners;
(2) The duration of the agreement;
(3) A development schedule, including commencement dates and interim completion dates at no greater than five-year intervals;
(4) The development uses permitted on the property, including population densities and building types, intensities, placement on the site, and design;
(5) A description of public facilities that will service the development, including who provides the facilities, the date any new public facilities, if needed, will be constructed, and a schedule to assure public facilities are available concurrent with the impacts of the development;
(6) If the development agreement provides that the town shall provide certain public facilities, the development agreement shall provide that the delivery date of such public facilities will be tied to successful performance by the developer in implementing the proposed development (such as meeting defined completion percentages or other performance standards);
(7) A description, where appropriate, of any reservation or dedication of land for public purposes and any provisions to protect environmentally sensitive property;
(8) A description of all local development permits approved or needed to be approved for the development of the property together with a statement indicating that the failure of the agreement to address a particular permit, condition, term, or restriction does not relieve the developer of the necessity of complying with the law governing their permitting requirements, conditions, terms, or restrictions;
(9) A description of any conditions, terms, restrictions, or other requirements determined to be necessary by the town for the public health, safety, or welfare of its citizens;
(10) A description, where appropriate, of any provisions for the preservation and restoration of historic structures; and
(11) An indemnification and “hold harmless” clause whereby the developer/property owner holds the town and its agents harmless from liability for damages, injury, or death that may arise from the direct or indirect operations of the owner, developers, contractors, and subcontractors that relate to the project.
(12) The proposed development agreement may include the following:
(a) A provision that the entire development or any phase of it be commenced or completed within a specified period of time;
(b) Other defined performance standards to be met by the developer;
(c) Other matters not inconsistent with law.
(13) The application shall include a master plan that depicts the general configuration and relationship of the principal elements of the proposed development, including major uses, general building types, pedestrian and vehicular circulation, open space, public facilities, and phasing.
(a) If more than one local government is made party to an agreement, the agreement must specify which local government is responsible for the overall administration of the development agreement. A local or regional utility authority may also be made a party to the development agreement.
(b) The development agreement also may cover any other matter, including defined performance standards, not inconsistent with G.S. Chapter 160D. The development agreement may include mutually acceptable terms regarding provision of public facilities and other amenities and the allocation of financial responsibility for their provision, provided any impact mitigation measures offered by the developer beyond those that could be required by the local government pursuant to G.S. § 160D-8-4 shall be expressly enumerated within the agreement, and provided the agreement may not include a tax or impact fee not otherwise authorized by law. For similar state law provisions, refer to G.S. § 160D-1006.
(c) Modifications. Consideration of a proposed major modification of the agreement shall follow the same procedures as required for initial approval of a development agreement. Changes which constitute a major modification may be determined as provided for in the development agreement. Changes which are deemed minor may be processed administratively. For similar state law provisions, refer to G.S. § 160D-1006(e).
(G) Procedure for entering into development agreements with developers.
(1) Submittal.
(a) The application for a development agreement shall be submitted, together with all other related permit/development approval applications, to the Zoning Administrator.
(b) The Zoning Administrator shall review the contents to ensure that the application is complete. If the application is not completed, the applicant shall be notified within ten calendar days.
(c) When the completed application is received and verified, the Zoning Administrator shall request and place the consideration of this application on the agenda for the next meeting of the Planning Board.
(2) Review and recommendation of the Planning Board. Following consideration and review, the Planning Board shall make on the following recommendations:
(a) The town enter into the development agreement as submitted;
(b) The town enter into the development agreement application subject to modifications agreed to by the applicant, in writing; or
(c) The town not enter into the development agreement.
(3) Consideration of the development agreement by the Board of Commissioners.
(a) Before entering in to a development agreement, the Town Board of Commissioners shall conduct a legislative hearing. The Town Clerk shall schedule a public hearing before the Town of Fairmont Board of Commissioners for the development agreement application. The notice provisions of G.S. § 160D-6-2 applicable to zoning map amendments shall be followed for this hearing. The notice for the public hearing must specify the location of the property subject to the development agreement, the development uses proposed on the property, and must specify a place where a copy of the proposed development agreement can be obtained. This hearing may be held jointly with any hearing required for other permits and approvals necessary of this same project. For similar state law provisions, refer to G.S. § 160D-1005.
(b) Following consideration and review of the recommendation from the Planning Board, the Board of Commissioners shall take one of the following actions:
1. Enter into the development agreement as submitted;
2. Enter into the development agreement, subject to modifications agreed to by the applicant, in writing;
3. Not enter into the development agreement; or
4. Remand of the application back to the Planning Commission for further consideration.
(H) Recordation. The developer shall record the agreement with the Robeson County Register of Deeds within 14 days after the local government and developer execute an approved development agreement. No development approvals may be issued until the development agreement has been recorded. The burdens of the development agreement are binding upon, and the benefits of the agreement shall inure to, all successors in interest to the parties to the agreement. For similar state law provisions, refer to G.S. § 160D-1011.
(I) Approval of debt. In the event that any of the obligations of the local governments in the development agreement constitute debt, the local government shall comply, at the time of the obligation to incur the debt and before the debt becomes enforceable against the local government, with any applicable constitutional and statutory procedures for the approval of this debt. The agreement shall be signed by the Town Attorney, Finance Director, and Mayor. For similar state law provisions, refer to G.S. § 160D-1012.
(J) Vesting.
(1) Unless the development agreement specifically provides for the application of subsequently enacted laws, the laws applicable to development of the property subject to a development agreement are those in force at the time of execution of the agreement.
(2) Except for grounds specified in G.S. § 160D-1-8(e), Town of Fairmont may not apply subsequently adopted ordinances or development policies to a development that is subject to a development agreement.
(3) In the event state or federal law is changed after a development agreement has been entered into and the change prevents or precludes compliance with one or more provisions of the development agreement, Town of Fairmont may modify the affected provisions, upon a finding that the change in state or federal law has a fundamental effect on the development agreement. For similar state law provisions, refer to G.S. § 160D-1007.
(K) Termination. Development agreements may be terminated by mutual consent of the parties. For similar state law provisions, refer to G.S. § 160D-1009.
(L) Annual review; breach and cure.
(1) Annual review. During any period of time in which a development permit is active, the town shall review the development at least once every 12 months for compliance with the agreement. The developer shall be required to demonstrate good faith compliance with the terms of the development agreement. For similar state law provisions, refer to G.S. 160D-1009.
(2) Breach and cure.
(a) A development agreement shall be enforceable by any party to the agreement notwithstanding any changes in the development regulations made subsequent to the effective date of the development agreement. Any party to the agreement may file an action for injunctive relief to enforce the terms of a development agreement.
(b) Material breach. If the town finds and determines that the developer has committed a material breach of the terms or conditions of the development agreement, the town shall serve written notice of the breach upon the developer within a reasonable time after the periodic review. Such notice shall set forth with reasonable particularity the nature of the breach and the evidence supporting the finding and determination, and shall provide the developer a reasonable time in which to cure the material breach.
(c) Failure to cure material breach. If the developer fails to cure the material breach within the time given, then the town unilaterally may terminate or modify the development agreement.
(d) Appeal. The notice of termination or modification may be appealed to the Board of Adjustment for review and decision.
(e) Other penalties for breach. An ordinance adopted pursuant to G.S. § 160D-10.3 or the development agreement may specify other penalties for breach in lieu of termination, including but not limited to, penalties allowed for violation of a development regulation. Nothing in this subchapter shall be construed to abrogate or impair the power of the local government to enforce applicable law.
For similar state law provisions, refer to G.S. § 160D-1008.
(M) Amendments to development agreement.
(1) Mutual consent. A development agreement may be amended or canceled by mutual consent of the parties to the agreement or by their successors in interest.
(2) Major modification. Consideration of a proposed major modification of a development agreement shall follow the same procedures as required for initial approval of the agreement.
(3) Minor modification. The Town Board of Commissioners delegates these to the Zoning Administrator who may approve minor modifications of the development agreement with the mutual consent of the other parties to the agreement, without following the same procedures as required for initial approval of the agreement, upon making written findings that the proposed modifications would not significantly change the use, intensity, or design of the development, would be consistent with the purposes and goals of the agreement, would comply with this chapter, and would not adversely affect the public health, safety, or general welfare.
(N) Assumption of jurisdiction over development agreements.
(1) Town assumes planning jurisdiction. If the town assumes planning jurisdiction over property subject to a development agreement established by another jurisdiction, such development agreement shall be valid for the duration of the agreement, or eight years from the effective date of the town’s assumption of planning jurisdiction over the subject property, whichever is earlier.
(2) Rights and obligations. The parties to the development agreement and the town shall have the same rights and obligations with respect to each other regarding matters addressed in the development agreement as if the property had remained in the previous jurisdiction.
(3) Modification or suspension. The town may modify or suspend the provisions of the development agreement if the town determines that the failure to do so would place the residents of the area subject to the development agreement, or the residents of the town’s planning jurisdiction, or both, in a condition dangerous to their health or safety, or both.
(O) Change of jurisdiction.
(1) A development agreement entered into by Town of Fairmont before the effective date of a change of jurisdiction shall be valid for the duration of the agreement, or eight years from the effective date of the change in jurisdiction, whichever is earlier. The parties to the development agreement and the local government assuming jurisdiction have the same rights and obligations with respect to each other regarding matters addressed in the development agreement as if the property had remained in the previous jurisdiction.
(2) In assuming jurisdiction, Town of Fairmont may modify or suspend the provisions of the development agreement if the town determines that the failure to do so would place the residents of the territory subject to the development agreement, or the residents of the town, or both, in a condition dangerous to their health or safety, or both. For similar state law provisions, refer to G.S. § 160D-1010.
(Ord. 23-241, passed 7-18-2023)