A. Purpose. The purpose of this Section is to conform to G.S. § 160D-108 and G .S. § 160D-108.1, recognize that local government approval of development typically follows significant investment in site evaluation, planning, development costs, consultant fees, and related expense and to establish certain vested rights in order to ensure reasonable certainty, stability, and fairness in the development regulation process, to secure the reasonable expectations of landowners, and to foster cooperation between the public and private sectors in land-use planning and development regulation.
B. Permit Choice. If a land development regulation is amended between the time a development permit application was submitted and a development permit decision is made or if a land development regulation is amended after a development permit has been challenged and found to be wrongfully denied or illegal, G.S. § 143-755 applies. The applicant may choose which version of the development regulation will apply to the application. If the development permit applicant chooses the version of the rule or ordinance applicable at the time of the permit application, development permit applicant shall not be required to await the outcome of the amendment to the rule, map or ordinance prior to acting on the development permit.
1. Development Projects that Require Multiple Permits to Complete a Development Project. the development permit applicant may choose the version of each of the land development regulation applicable to the project upon submittal of the application for the initial development permit. This Section is applicable only for those subsequent development permit applications filed within eighteen (18) months of the date following the approval of an initial permit. This Section does not limit or affect the duration of any vested rights established. For purposes of the vesting protections of this Section, an erosion control and sedimentation control permit or a sign permit is not an initial development permit.
C. Vested rights shield prior-approved development from the requirement to comply with changes in this UDO or other City requirements. Vested rights are applied in accordance with G.S. § 160D-108 and G.S. § 160D-108.1.
D. Prior Vesting. Amendments, supplements, repeals, or other changes in zoning regulations and zoning boundaries shall not be applicable or enforceable without the consent of the landowner with regard to lots for which building permits, multi-phased development approvals, or vested rights have been established (pursuant to State law) prior to the enactment of this UDO making the change(s), so long as the vested rights remain valid and unexpired. The following shall apply to prior vesting:
1. Buildings or uses of buildings or land for which a development permit application has been submitted and subsequently issued in accordance with G.S. § 143-755.
2. Subdivisions of land for which a development permit application authorizing the subdivision has been submitted and subsequently issued in accordance with G.S. § 143-755.
3. A site-specific vesting plan pursuant to G.S. § 160D-108.l.
4. A multi-phased development pursuant to G.S. § 160D-108(f).
5. A vested right established by the terms of a development agreement.
E. Development Approvals.
1. Except for building permits, site-specific vesting plans, development agreements, and multi-phased developments, any development approval under this UDO shall be vested from changes in this UDO for a period of one (1) year from the date of approval, provided the development subject to the approval complies with all applicable terms and conditions. Development approvals include, but are not limited to, zoning permits, site plan approvals, special use permits, variances and certificate of appropriateness, and the like.
2. A valid development approval shall not expire if work on the project has substantially commenced within the initial validity period. Substantial commencement of work shall be determined by the Director of Planning based on 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 thirty (30) days;
b. The development has installed substantial on-site infrastructure; or
c. The development has received and maintained a valid building permit for the construction and approval of a building foundation.
3. Once vesting rights have been established, development permits expire for an uncompleted development project if development work is intentionally and voluntarily discontinued for a period of not less than twenty-four (24) consecutive months.
F. Building Permit. The issuance of a building permit establishes a vested right to the development for a period of six (6) months, as long as the building permit complies with the terms and conditions of approval of that building permit. If after commencement, the work is discontinued for a period of twelve (12) months, the permit shall expire.
G. Site-Specific Vesting Plan.
1. Development approvals identified by this UDO as site-specific vesting plans shall be granted a vested right to develop for a maximum period of two (2) years from the date of the approval, provided the development subject to the approval complies with all applicable terms and conditions.
2. The following types of development approvals shall be considered site-specific vesting plans:
a. Concept plans associated with a conditional rezoning approved in accordance with Section 3.4.6., Zoning Map Amendment (Rezoning);
b. Major subdivision final plat approved in accordance with Section 3.4.16., Major Subdivision Final Plat;
c. Planned developments approved in accordance with Section 3.4.7., Planned Developments;
d. Major subdivision preliminary plat approved in accordance with Section 3.4.15., Major Subdivision Preliminary Plat;
e. Site and development plan (Site Plan) approved in accordance with Section 3.4.17., Site and Development Plan;
f. Special use permit approved in accordance with Section 3.4.9., Special Use Permits.
3. Site-specific vesting plans meeting the definition of multi-phase development shall be vested in accordance with Section 1.1.9(H).
4. Approved site-specific vesting plans may receive a vesting period exceeding two (2) years upon approval of a vested right certificate in accordance with Section 3.4.8, Vested Rights Certificate, not to exceed a total of three (3) years.
H. Multi-Phase Development.
1. A multi-phase development plan that occupies at least twenty-five (25) acres of land area is subject to a master plan that depicts the types and intensities of all uses as part of the approval and includes more than one phase shall be considered as a multi-phase development plan that is granted a vested right to develop for a period of seven (7) years from the date of approval of the first site plan associated with development.
2. Vesting shall commence upon approval of the site plan for the first phase of the development.
3. The vested right shall remain in affect provided the development does not expire and provided it complies with all the applicable terms and conditions of the approval.
I. Vested Rights Certificate. Site-specific vesting plans that do not qualify for a multi-phase development may have a vesting period that exceed two (2) years upon approval of a vested right certificate in accordance with Section 3.4.8., Vested Rights Certificate, not to exceed a total of three (3) years.
J. Validity after Development Discontinuation. As outlined in G.S. § 160D-108(d), after a development has substantially commenced work, statutory vested rights "expire for an uncompleted development project if development work is intentionally and voluntarily discontinued for a period of not less than twenty-four (24) consecutive months."
K. Limits of Site-Specific Vesting Plans.
1. Even with the establishment of a site-specific vesting plan, the property owner must meet all standards and conditions of the development approval. Nothing in this code shall prohibit the revocation of the original approval or other remedies for failure to comply with applicable terms and conditions of the approval or the Unified Development Code according to G.S. § 160D-403(t). The development remains subject to subsequent review and approvals to ensure compliance with the terms and conditions of the original approval as provided for in the original approval or by applicable regulations.
2. The establishment of a vested right pursuant to the Unified Development Ordinance 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 City of Monroe, including, but not limited, to building, fire, plumbing, electrical, and mechanical codes.
3. New and amended zoning regulations that would be applicable to certain property but for the establishment of a vested right shall become effective upon the expiration or termination of the vested rights period provided for in this chapter.
4. Upon issuance of a building permit, the expiration provisions of G.S. §§ 160D-1111 and 160D-1115 apply, except that a building permit shall not expire or be revoked because of the running time while a zoning vested right under this section is outstanding.
5. Any vested rights for a site-specific vesting plan are subject to the exceptions specified in G.S. § 160D-108.l.
6. Modifications to Site-Specific Vesting Plans. An approved site-specific vesting plan and its conditions may be modified with the approval of the owner and the local government in accordance with Section 3.4.6., Zoning Map Amendments (Rezoning) subsection D.4: Conditional Zoning for minor and major modifications.
L. Revocation of Development Approvals and Site-Specific Vesting Rights. Development approvals shall be revoked for the following:
1. Any substantial departure from the approved application, plans or specifications;
2. Refusal or failure to comply with the requirements of any applicable local development regulation or any State law delegated to the City for enforcement purposes in lieu of the State;
3. False statements or misrepresentations made in securing the approval.
4. Any development approval mistakenly issued in violation of an applicable State or local law may also be revoked.
a. If at any time the Director of Planning and Development determines a development approval or vested right shall be revoked, the developer will be notified in writing stating the reasons with evidence supporting the finding and determination.
b. The revocation of a development approval by staff may be appealed in accordance to Section 3.4.11., Appeals.
c. If a development approval or vested rights is revoked, then the underlying vesting document is also revoked.
M. Common Law Vesting. A common law vested right is established only when the following can be demonstrated by the landowner:
1. There is an affirmative governmental act by the City in the form of an approval of a permit or development approval under this Unified Development Ordinance (UDO); and
2. The landowner relies on this affirmative governmental act in good faith and makes substantial expenditures to develop the land; and
3. It would be inequitable to prevent the landowner from proceeding to develop the land consistent with the terms and conditions of the permit or development approval relied upon.
SUMMARY OF PERMIT CHOICE AND VESTED RIGHTS APPLICABILITY | ||
TYPE OF PERMIT/RIGHTS | PERIOD OF VALIDITY | SUMMARY OF APPLICABILITY |
Permit Choice | 18 months from initial approval | Right for development applicant to choose for application to be reviewed under the regulations applicable at the time of initial application; applies to initial permit application and subsequent related development permits. (G.S. §§ 143-755 and 160D-108) |
Building Permit | 6 months | Work under a building permit must begin within six months. Permit expires after discontinuance of work for 12 months. (G.S. § 160D-1111) |
Development Permits | 12 months | General rule that development approvals (site plan, plats, special use permits, and more) are valid for 12 months unless altered by other statutes. (G.S. § 160D-108) |
Site-Specific Vesting Plan | 2 years (1 year extension with City Council approval) | Certain approvals identified in a local ordinance create extended vesting. Permit must be identified as such at the time of approval. (G.S. § 160D-108.1) |
Multi-Phased Development | 7 years from first site plan approval | Qualifying development enjoys extended vesting. Must be at least 25 acres in size, subject to a master development plan with committed elements, to be permitted and built in phases. (G.S. § 160D-108) |
Validity after Development Discontinuation | 2 years | For a development that has substantially commenced work, statutory vested rights expire after 24 consecutive months of discontinuance of the project. The discontinuance period is tolled for any litigation relating to the project or property. (Building permits limited to 12 months of discontinuation.) (G.S. § 160D-108) |
Development Agreement | Per agreement | Negotiated agreement between developer and local government specifying a range of development topics, including a period of vesting. (G.S. §§ 160D-108 and 160D-1007) |
Common Law Vested Right | Reasonable Time | Established by substantial expenditures relying in good faith on a valid governmental permit. Authorized in case law. |
(Ord. O-2023-33, passed 8-8-23)