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The recipient of any zoning, special use or sign permit, or his or her successor, shall be responsible for maintaining all common area improvements, or facilities required by this chapter or any permit issued in accordance with its provisions, except in those areas, improvements or facilities with respect to which an offer of dedication to the public has been accepted by the appropriate public authority. As illustrations, and without limiting the generality of the foregoing, this means that private driveways and parking areas, water and sewer lines, and recreational facilities must be properly maintained so that they can be used in the manner intended, and required vegetation and trees used for screening, planting or shading must be replaced if they die or are destroyed.
(Ord. passed 4-9-2013; Ord. 2021-03, passed 6-8-2021)
(A) Purpose. The purpose of this section is to provide a procedure allowing a landowner to apply for the right to develop land in accordance with a previously approved site-specific development (as defined herein).
(B) Vested rights.
(1) Amendments in land development regulations are not applicable or enforceable without the written consent of the owner with regard to any of the following:
(a) 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.
(b) 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.
(c) A site-specific vesting plan.
(d) A multi-phased development.
(2) A vested right established by the terms of a development agreement authorized by G.S. Ch. 160D, Art. 10.
(3) The establishment of a vested right under any subdivision of this section does not preclude vesting under one or more other subdivisions of this Subsection or vesting by application of common law principles. A vested right, once established as provided for in this section or by common law, precludes any action by the town that would change, alter, impair, prevent, diminish, or otherwise delay the development or use of the property allowed by the applicable land development regulation or regulations, except where a change in state or federal law mandating town enforcement occurs after the development application is submitted that has a fundamental and retroactive effect on the development or use.
(C) Duration of vesting.
(1) Upon issuance of a development permit, the statutory vesting granted by this section for a development project is effective upon filing of the application in accordance with G.S. § 143-755, for so long as the permit remains valid pursuant to law. Unless otherwise specified by this section or other statute, local development permits expire one year after issuance unless work authorized by the permit has substantially commenced. For the purposes of this section, a permit is issued either in the ordinary course of business of the town or by the applicable governmental agency as a court directive.
(2) Except where a longer vesting period is provided by statute or this chapter, the statutory vesting granted by this section, once established, expires for an uncompleted development project if development work is intentionally and voluntarily discontinued for a period of not less than 24 consecutive months, and the statutory vesting period granted by this section for a nonconforming use of property expires if the use is intentionally and voluntarily discontinued for a period of not less than 24 consecutive months. The 24-month discontinuance period is automatically tolled during the pendency of any Planning and Adjustment Board proceeding or civil action in a state or federal trial or appellate court regarding the validity of a development permit, the use of the property, or the existence of the statutory vesting period granted by this section. The 24-month discontinuance period is also tolled during the pendency of any litigation involving the development project or property that is the subject of the vesting.
(D) Multiple permits for development project. Subject to Section 1.10, where multiple town development permits are required to complete a development project, the development permit applicant may choose the version of each of the town land development regulations applicable to the project upon submittal of the application for the initial development permit. This provision is applicable only for those subsequent development permit applications filed within 18 months of the date following the approval of an initial permit. For purposes of the vesting protections of this section, an erosion and sedimentation control permit or a sign permit is not an initial development permit.
(E) Multi-phased development. A multi-phased development is vested for the entire development with the land development regulations then in place at the time a site plan approval is granted for the initial phase of the multi-phased development. A right which has been vested as provided for in this section remains vested for a period of seven years from the time a site plan approval is granted for the initial phase of the multi-phased development.
(F) Continuing review. Following issuance of a development permit, the town may make subsequent inspections and reviews to ensure compliance with the applicable land development regulations in effect at the time of the original application.
(G) Process to claim vested rights. A person claiming a statutory or common law vested right may submit information to substantiate that claim to the Zoning Administrator who shall make an initial determination as to the existence of the vested right. The decision of the Zoning Administrator may be appealed to the Planning and Adjustment Board. On appeal, the existence of a vested right shall be reviewed de novo. In lieu of seeking such a determination or pursuing an appeal, a person claiming a vested right may bring an original civil action as provided by G.S. § 160D-1403.1.
(H) Miscellaneous provisions. The vested rights granted by this section run with the land except for the use of land for outdoor advertising governed by G.S. §§ 136-131.1 and 136-131.2 in which case the rights granted by this section run with the owner of a permit issued by the North Carolina Department of Transportation. Nothing in this section precludes judicial determination, based on common law principles or other statutory provisions, that a vested right exists in a particular case or that a compensable taking has occurred. Except as expressly provided in this section, nothing in this section shall be construed to alter the existing common law.
(I) Definitions. For the purpose of this section, the following definitions shall apply unless the context clearly indicates or requires a different meaning.
DEVELOPMENT. As defined in G.S. § 143-755(e)(1).
DEVELOPMENT PERMIT. As defined in G.S. § 143-755(e)(2).
LAND DEVELOPMENT REGULATION. As defined in G.S. § 143-755(e)(3).
MULTI-PHASED DEVELOPMENT. A development containing 25 acres or more that is both of the following:
(a) Submitted for development permit approval to occur in more than one phase.
(b) Subject to a master development plan with committed elements showing the type and intensity of use of each phase.
(Ord. passed 4-9-2013; Ord. 2021-03, passed 6-8-2021)
APPEALS, VARIANCES, INTERPRETATIONS
(A)
Any aggrieved party affected by a decision or interpretation of the Ordinance Administrator or other administrative official may appeal such decision or interpretation to the Board of Adjustment in accordance with the provisions of this section.
(B) Appeal procedure.
(1) Applicability. Appeals of decisions made by the Zoning Administrator or his or her deputy or staff under this chapter shall be made to the Board of Adjustment. Appeals shall be heard by the Board of Adjustment in compliance with the quasi-judicial processes set forth in this chapter.
(2) Standing. Any person who has standing or the town may appeal an administrative decision to the Board of Adjustment. An appeal is taken by filing a notice of appeal with the Clerk to the Board. The notice of appeal shall state the grounds for the appeal.
(3) Time to appeal. The owner or other party shall have 30 days from receipt of the written notice of the determination within which to file an appeal. Any other person with standing to appeal shall have 30 days from receipt from any source of actual or constructive notice of the determination within which to file an appeal. The written notice of appeal shall specify the grounds for the appeal, a statement of the decision or interpretation alleged to be improper, the date of that decision or interpretation, and all supporting materials related to the decision. In the absence of evidence to the contrary, notice given pursuant to this chapter by first-class mail shall be deemed received on the third business day following deposit of the notice for mailing with the United States Postal Service.
(4) Record of decision. The official who made the decision shall transmit to the Board of Adjustment all documents and exhibits constituting the record upon which the decision appealed from is taken. The official shall also provide a copy of the record to the appellant and to the owner of the property that is the subject of the appeal if the appellant is not the owner.
(5) Stays. An appeal of a notice of violation or other enforcement order stays enforcement of the action appealed from and accrual of any fines assessed unless the official who made the decision certifies to the Board after notice of appeal has been filed that, because of the facts stated in an affidavit, a stay would cause imminent peril to life or property or, because the violation is transitory in nature, a stay would seriously interfere with enforcement of the development regulation. In that case, enforcement proceedings shall not be stayed except by a restraining order, which may be granted by a court. If enforcement proceedings are not stayed, the appellant may file with the official a request for an expedited hearing of the appeal, and the board shall meet to hear the appeal within 15 days after such a request is filed. Notwithstanding the foregoing, appeals of decisions granting a development approval or otherwise affirming that a proposed use of property is consistent with the development regulation shall not stay the further review of an application for development approvals to use such property; in these situations, the appellant or town may request and the board may grant a stay of a final decision of development approval applications, including building permits affected by the issue being appealed.
(C) Appeal of decision. Any appeal from the decision of the Board of Adjustment shall be to the Superior Court for Onslow County by petition for a writ of certiorari. Any such petition to the Superior Court shall be filed with the Clerk of Court in accordance with the provisions of G.S. § 160D-1402.
(Ord. passed 4-9-2013; Ord. 2021-03, passed 6-8-2021)
(A) An application for a variance shall be submitted to the Board of Adjustment by filing a copy of the application with the Zoning Administrator in the Planning and Inspections Department. Applications shall be handled in the same manner as applications for special use permits in conformity with the provisions of §§ 153.341, 153.342 and 153.347.
(B) When unnecessary hardships would result from carrying out the strict letter of a requirement of this chapter, the Planning and Adjustment Board shall vary the requirement of this chapter upon a showing of all of the following:
(1) Unnecessary hardship would result from the strict application of the requirement. It shall not be necessary to demonstrate that, in the absence of the variance, no reasonable use can be made of the property; and
(2) The hardship results from conditions that are peculiar to the property, such as location, size, or topography. Hardships resulting from personal circumstances, as well as hardships resulting from conditions that are common to the neighborhood or the general public, may not be the basis for granting a variance. A variance may be granted when necessary and appropriate to make a reasonable accommodation under the Federal Fair Housing Act for a person with a disability; and
(3) The hardship did not result from actions taken by the applicant or the property owner. The act of purchasing property with knowledge that circumstances exist that may justify the granting of a variance shall not be regarded as a self-created hardship; and
(4) The requested variance is consistent with the spirit, purpose, and intent of the regulation, such that public safety is secured and substantial justice is achieved; and
(5) No change in permitted uses may be authorized by variance.
(C) In granting variances, the Board of Adjustment may impose such reasonable conditions as will ensure that the use of the property to which the variance applies will be as compatible as practicable with the surrounding properties.
(D) A variance may be issued for an indefinite duration or for a specified duration only.
(E) The nature of the variance and any conditions attached to it shall be entered on the face of the zoning permit (or the zoning permit may simply note the issuance of the variance and refer to the written record of the variance for further information). All such conditions are enforceable in the same manner as any other applicable requirement of this chapter.
(Ord. passed 4-9-2013; Ord. 2021-03, passed 6-8-2021)
(A) The Zoning Administrator is authorized to interpret the official zoning map and to pass upon disputed questions of lot lines or district boundary lines and similar questions. If such questions arise in the context of an appeal from a decision of the Zoning Administrator, they shall be handled as provided in § 153.375.
(B) A written request for a map interpretation shall be submitted to the Zoning Administrator (or Board of Adjustment in cases of appeal by filing a copy of the application with the Zoning Administrator). The written request or application in the case of appeal shall contain sufficient information to enable the Zoning Administrator or Board to make the necessary interpretation.
(C) Where uncertainty exists as to the boundaries of districts as shown on the official zoning map, the following rules shall apply.
(1) Boundaries indicated as approximately following the centerlines of alleys, streets, highways, streams or railroads shall be construed to follow such centerlines.
(2) Boundaries indicated as approximately following lot lines, town limits or extraterritorial boundary lines shall be construed as following such lines, limits or boundaries.
(3) Boundaries indicated as following shorelines shall be construed to follow such shorelines and in the event of change in the shoreline shall be construed as following such changed shorelines.
(4) Where distances are not specifically indicated on the official zoning map, the boundary shall be determined by measurement, using the scale of the official zoning map. Where a zoning district boundary divides a lot, the zoning district that occupies the majority of the lot shall be considered the zoning district for the entire lot. Said district boundary shall be interpreted to follow lot lines.
(5) Where any street or alley is hereafter officially closed, the regulation applicable to each parcel of abutting property shall apply to that portion of such street or alley added thereto by virtue of such closing.
(Ord. passed 4-9-2013; Ord. 2021-03, passed 6-8-2021)
As provided in this chapter, the Board of Adjustment shall hear and decide all appeals, variance requests and requests for interpretations as expeditiously as possible, consistent with the need to follow a regularly established meeting schedule, follow agenda procedures, provide notice in accordance with §§ 153.320 through 153.332, and obtain the necessary information to make sound decisions.
(Ord. passed 4-9-2013; Ord. 2021-03, passed 6-8-2021)
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