§ 4.3 ZONING MAP AMENDMENTS - ALL ZONING DISTRICTS (REZONING).

   4.3.1   Applicability.

      A.   Zone boundaries as shown on the zoning map may be amended, supplemented, changed, modified, or repealed in accordance with the procedures of this Article.

      B.   The Town Council shall consider amendments to the official zoning map of the town as may be required from time to time. A zoning map amendment may sometimes be referred to as a “rezoning”.

      C.   Rezoning should correspond with the boundary lines of existing platted lots or tracts. Where the boundaries of a rezoning request stop short of an exterior property line, a survey is required to properly define the zoning lines. It must be possible to subdivide and develop that portion of the property outside the proposed rezoning boundary in accordance with the existing zoning and other requirements of this ordinance.

      D.   No amendment to zoning regulations or a zoning map that down-zones property shall be initiated, nor is it enforceable without the written consent of all property owners whose property is the subject of the down-zoning amendment, unless the down-zoning amendment is initiated by the town. For purposes of this section, DOWN-ZONING means a zoning amendment that affects an area of land by either decreasing the development density of the land to be less dense than was allowed under its previous usage or by reducing the permitted uses of the land to fewer uses than were allowed under its previous usage.

   4.3.2   Initiation of amendment.

   General Districts and Overlay Districts

   A request for a rezoning may be initiated by the Town Council, the Planning Board, the UDO Administrator, the property owner or their agent, or a duly authorized third party who does not own the property(ies) proposed for rezoning.

   4.3.3   Pre-application conference. All applicants petitioning for a rezoning shall schedule a pre- application conference with the UDO Administrator in accordance with Article 4.1.2.

   4.3.4   Neighborhood meeting. It is recommended that all applicants petitioning for a general use, PD-CD, or MR-CD rezoning hold a neighborhood meeting. After the pre-application conference, and at least ten days prior to submitting the application, the neighborhood meeting is recommended for the following approvals:

         1.   Zoning map amendment - All general use zoning districts.

         2.   Zoning map amendment - MR-CD or PD-CD.

         Applicants seeking a rezoning to the CZ-CD district shall be required to hold a neighborhood meeting prior to submitting an application.

      A.   The purpose of the neighborhood meeting is to inform the neighborhood of the nature of the proposed land use and development features, explain the plan (if any), and receive comments. The comments received at the neighborhood meeting are not binding on the applicant although the applicant may incorporate suggestions received at the meeting.

      B.   If held, an oral or written summary of the neighborhood meeting discussions must be available for discussion at the Planning Board meeting scheduled to review the application.

      C.   The applicant shall provide notice of the neighborhood meeting in conformance with the following.

         1.   Mailed.

            a.   Notice shall be delivered by first class mail to owners of all adjoining properties; and

            b.   In the event the rezoning would take place within the areas administered by a property owners association(s), notice shall be delivered by first class mail to the president and/or secretary of the association(s).

         2.   Posted. A sign shall be posted on the site at least ten days prior to the date of the neighborhood meeting. The sign shall satisfy the following criteria.

            a.   The sign shall be six square feet in size and the bottom of the sign must be at least four feet off the ground.

            b.   The sign shall include the title ‘PRE-APPLICATION NEIGHBORHOOD MEETING’ at the top of the sign.

            c.   The sign shall include a brief narrative of the project proposal/request.

            d.   The sign shall include the time, date, and place of the neighborhood meeting.

            e.   The sign shall include a statement on where concerned citizens can contact the applicant for more information, including a phone number and/or e-mail address.

            f.   The applicant shall remove the sign within 24 hours after the neighborhood meeting.

            g.   No sign may be placed within a right-of-way or within 50 feet of any street intersection.

            h.   No sign may be placed or mounted on utility, traffic, or other similar structures.

   4.3.5   Application requirements. All applications for a rezoning shall be submitted in accordance with Article 4.1.3 (Application Requirements).

   4.3.6   Notice and public hearings. The town shall hold all required public hearings and give notice in accordance with Article 4.1.4 (Public Notice Requirements).

   4.3.7   Action by the UDO Administrator.

      A.   The UDO Administrator shall prepare a staff report that reviews the rezoning request in light of any applicable plans and the general requirements of this ordinance. The staff report shall consider the entire range of permitted uses in the requested classification.

      B.   Following completion of technical review by staff, the UDO Administrator shall forward the completed request and any related materials to the Planning Board for review and recommendation to Town Council.

      C.   Following Planning Board review, the UDO Administrator shall forward the completed rezoning request and any related materials, including the Planning Board recommendation, to the Town Council for a hearing and final action.

   4.3.8   Action by Planning Board.

      A.   Procedure. The Planning Board shall make a written recommendation on the application to the Town Council. If the Planning Board fails to make a recommendation within 60 days, the Town Council may process the request without a recommendation.

      B.   Review criteria. In making its written recommendation as to plan consistency, the Planning Board shall make a recommendation based on the approval criteria in Article 4.3.9 B.

   4.3.9   Action by Town Council.

      A.   Procedure.

         1.   Before taking action on a rezoning at the public hearing, the Town Council shall consider the recommendations of the Planning Board (public notice requirements are given in Article 4.1.4)

         2.   The Town Council may approve the rezoning, apply zoning other than that requested (if not inconsistent with the notice), deny the rezoning, or send the rezoning back to the Planning Board for additional consideration.

      B.   Approval criteria. In approving a rezoning, the Town Council shall consider the following matters:

         1.   Consistency with any adopted land use plans, including the comprehensive plan;

         2.   Compatibility with the present zoning and conforming uses of nearby property and with the character of the neighborhood;

         3.   Suitability of the subject property for uses permitted by the current district versus the uses permitted in proposed district;

         4.   Whether the proposed change tends to improve the balance of uses permitted or satisfies a specific demand in the town;

         5.   The availability of adequate school, road, park, waste water treatment, water supply, and stormwater drainage facilities for the proposed use as well as the range of permitted uses for the zoning requested; and

         6.   The extent to which the proposed zoning map amendment is consistent with the remainder of the ordinance including, specifically, any purpose and intent statements.

      C.   Statement of consistency. The Town Council shall adopt a written statement as to the consistency of the rezoning with any adopted land use plans. The requirement for a plan consistency statement may also be met by a clear indication in the minutes of the Town Council meeting that at the time of action on the amendment the Town Council was aware of and considered the Planning Board’s recommendations and any relevant portions of an adopted comprehensive plan. If a zoning map amendment is adopted and the action was deemed inconsistent with the adopted plan, the zoning amendment shall have the effect of also amending any future land-use map in the approved plan, and no additional request or application for a plan amendment shall be required. A plan amendment and a zoning amendment may be considered concurrently. The plan consistency statement is not subject to judicial review. If a zoning map amendment qualifies as a large-scale rezoning under G.S. § 160D-602(b), the Town Council statement describing plan consistency may address the overall rezoning and describe how the analysis and policies in the relevant adopted plans were considered in the action taken.

      D.   Statement of reasonableness. A written statement shall be adopted as to the reasonableness of the rezoning. This statement of reasonableness may consider, among other factors, (i) the size, physical conditions, and other attributes of the area proposed to be rezoned, (ii) the benefits and detriments to the landowners, the neighbors, and the surrounding community, (iii) the relationship between the current actual and permissible development on the tract and adjoining areas and the development that would be permissible under the proposed amendment; (iv) why the action taken is in the public interest; and (v) any changed conditions warranting the amendment. If a zoning map amendment qualifies as a large-scale rezoning under G.S. § 160D-602(b), the Town Council statement on reasonableness may address the overall rezoning. The statement of reasonableness and the plan consistency statement required by this section may be approved as a single statement.

   4.3.10   Resubmission of application.

      A.   Upon final action by the Town Council to deny or approve an application for the rezoning of property, the Planning Board shall not accept for review any applications for changes affecting the same property or any portion thereof until the expiration of one year from the date of such previous action except as provided in division B. below. The UDO Administrator shall reject applications that do not comply with the elapsed time requirements.

      B.   The UDO Administrator may allow re-submission of such petition within the one year period if it is determined that, since the date of action on the prior petition:

         1.   There has been a significant change in the zoning district classification of an adjacent piece of property;

         2.   The Town Council has adopted a plan that changes public policy regarding how the property affected by the amendment should be developed;

         3.   Construction or expansion of infrastructure (e.g., a road, water line, sewer line, or other such facilities) has occurred to serve the property and can comfortably accommodate the intensity of development allowed under the proposed classification; and

         4.   There has been some other extraordinary change in conditions or circumstances, outside the control of the applicant, which justifies waiver of the one year restriction on re-submission; this, however, shall not include a change in the ownership of the subject property.

(Ord. passed 2-3-2021; Ord. 2023-03, passed 3-1-2023)

§ 4.4 ZONING MAP AMENDMENTS - CONDITIONAL ZONING DISTRICTS.

   4.4.1   General procedure. Zoning map amendment applications for an amendment to a conditional zoning district as described in Article 7.1.2 are processed, considered, and voted upon in accordance with the procedures of Article 4.3 (Zoning map amendment-all zoning districts) except as otherwise expressly stated in this Article.

   4.4.2.   Pre-application conference.

      A.   All applicants seeking a zoning map amendment to a conditional district shall schedule a pre-application conference with the UDO Administrator. The UDO Administrator shall review the preliminary concept plan (prepared in accordance with the requirements of Article 4.4.5) for completeness and consistency with the purpose and intent of the conditional zoning district requirements.

      B.   Following the pre-application conference, the UDO Administrator shall notify the applicant of any modification to the concept plan that may be required. The applicant will then prepare the final concept plan for submission to the Planning Board.

   4.4.3   Neighborhood meeting. It is recommended that all applicants seeking approval of (1) a PD/PUD or MR-CD, or (2) a modification, including expansion, to an existing PD/PUD or MR-CD hold a neighborhood meeting in accordance with Article 4.3.4 (Neighborhood Meeting). An application to create or modify a CZ-CD shall require a neighborhood meeting.

   4.4.4   Application requirements. The conditional rezoning application consists of the following materials:

      A.   A conditional district zoning map amendment application prepared in accordance with Article 4.1.3.

      B.   The concept plan approved by the UDO Administrator for submission. This concept plan consists of a map-based presentation of proposed zoning conditions attached to the conditional district zoning map amendment application.

   4.4.5   Concept plan. For the purpose of establishing conditions to be included with the conditional zoning map amendment, applications for a zoning map amendment to a conditional zoning district must be accompanied by a concept plan for the entire property proposed to be included in the district. At a minimum, the concept plan must include the elements listed below. Additional details may be added to the concept plan.

      A.   The location and size of the area involved;

      B.   The current zoning of the surrounding properties;

      C.   Location of existing waterways and other riparian areas, and other significant environmental features;

      D.   General layout of transportation routes including streets, pedestrian ways, and off- street parking and loading areas;

      E.   Estimated population density and extent of activities to be allocated to parts of the project;

      F.   Reservations for public use including schools, parks, and other open spaces;

      G.   The general means of the disposition of sanitary wastes and stormwater;

      H.   A graphical indication of areas and a tabulation of these land areas to be devoted to various uses and overall densities.

      I.   If a project is to be developed in phases, a general breakdown showing the various phases and the estimated schedule of construction.

   4.4.6   Approval process and guidelines.

      A.   The concept plan. The UDO Administrator shall review the concept plan for consistency with the standards of Article 12 (Subdivision Standards) and other applicable standards in this ordinance. The UDO Administrator may consult with the Technical Review Committee or other consultants. Upon finding such consistency, the UDO Administrator shall approve the concept plan for submission to the Planning Board in combination with an application for a zoning map amendment.

   4.4.7   Conditions.

      A.   Conditions may specify the location on the property of proposed uses; the number of dwelling units; the location and extent of supporting facilities such as parking lots, driveways, and access streets; design elements of the proposed use; the location and extent of buffer areas and other special purpose areas; the timing of development; the location and extent of rights-of-way and other areas to be dedicated for public purposes; the widening of streets to mitigate traffic impacts; and other such matters as the applicant may propose as conditions upon the request.

      B.   Any conditions imposed in association with a conditional district and so authorized are perpetually binding upon the property included within the conditional district unless subsequently changed or amended as provided for in this Article or future modifications thereof.

      C.   Specific conditions may be proposed by the petitioner or the town or its agencies, but only those conditions approved by the town and consented to by the petitioner in writing may be incorporated into the zoning regulations. Unless consented to by the petitioner in writing, in the exercise of the authority granted by this section, the town may not require, enforce, or incorporate into the zoning regulations any condition or requirement not authorized by otherwise applicable law, including, without limitation, taxes, impact fees, building design elements within the scope of G.S.§ 160D-702(b), driveway-related improvements in excess of those allowed in G.S. § 136-18(29) and G.S. § 160A-307, or other unauthorized limitations on the development or use of land. Conditions and site-specific standards imposed in a conditional district shall be limited to those that address the conformance of the development and use of the site in accordance with this ordinance, plans adopted pursuant to G.S. § 160D-501, or the impacts reasonably expected to be generated by the development or use of the site.

   4.4.8   Procedure. The procedure for a zoning map amendment to a conditional zoning district shall be the same as set forth in Article 4.3 (Zoning map amendments-all zoning districts) in that notice and public hearings shall be in accordance with Article 4.1.4, Public Notice Requirements. Action by the Planning Board shall be in accordance with Article 4.3.8. Action by the Town Council is a legislative decision procedure in a public hearing in accordance with Article 4.3.9, including required statements of consistency and reasonableness.

   4.4.9   Effect of approval. Approval of a zoning map amendment application and accompanying conceptual plan has the effect of establishing the maximum density/intensity, maximum height and general location of buildings and uses of each tract, or area shown on the conceptual plan.

   4.4.10   Amendments and modifications. Minor modifications, such as reducing density, increasing open space, adding buffers, and the like, may be approved by the Planning Board. Any major proposed change from what is shown on the approved concept plan shall require an amendment of the conditional zoning district following the same procedure as that required for the original approval of the district.

   4.4.11   Conditional district-site plans and permits. The concept plan approvals establish the basic zoning requirements of the district. A master development plan (MDP) and subsequent site plans for the development in the conditional district must be submitted for review and approval in accordance with the site plan approval procedure of Article 4.7 of this ordinance to enable site development and subdivision of land and construction. See Article 4.1.3 for MDP requirements.

(Ord. passed 2-3-2021; Ord. 2023-03, passed 3-1-2023)

§ 4.5 VARIANCE.

   4.5.1   Applicability.

      A.   The decision authority may vary certain requirements of this ordinance in harmony with the general purpose of these regulations, where special conditions applicable to the subject property would make the strict enforcement of the regulations impractical or result in a hardship in making reasonable use of the property.

      B.   No variance shall be permitted that would have the effect of allowing a use not permitted in the subject zoning district (see use table set forth in Article 7), or a density exceeding the maximum allowed in the subject zoning district.

      C.   No variance may be granted where explicitly prohibited by this ordinance.

   4.5.2.   Decision authority. The Board of Adjustment shall be the decision authority for all variance applications.

   4.5.3.   Pre-application conference. All applicants seeking a variance shall schedule a pre- application conference with the UDO Administrator to discuss the procedures, standards, and regulations required for variance approval in accordance with the provisions of this ordinance.

   4.5.4.   Application requirements. An application for a variance shall be signed by the owner(s) of the subject property or the owner(s) agent with a valid power of attorney and submitted in accordance with Article 4.1.3 (Application Requirements).

   4.5.5.   Notice and evidentiary hearings. Once the application has been determined complete, the UDO Administrator shall schedule an evidentiary hearing and give public mailed and posted notice as set forth in Article 4.1.4.

   4.5.6   Burden of proof. The applicant seeking the variance shall have the burden of presenting evidence sufficient to allow the decision authority to reach the conclusions set forth below (Findings, Article 4.5.9), as well as the burden of proof on those issues.

   4.5.7   Action by the UDO Administrator. The UDO Administrator shall provide the decision authority a copy of the application and all relevant materials pertaining to the request prior to the public hearing.

   4.5.8   Action by the decision authority.

      A.   Each decision shall be accompanied by findings of fact by the decision authority that specifies the reasons for the decision.

      B.   A decision to approve a variance requires a concurring vote of four-fifths of the members of the decision authority.

      C.   The decision authority may approve in whole or in part, deny, or continue the request. In granting the variance, the approving authority may prescribe reasonable and appropriate conditions that will ensure that the use will be compatible with adjacent properties and will not alter the character of the neighborhood. Notwithstanding the foregoing, such conditions must be directly related to the impacts of the proposed use and must be roughly proportional to these anticipated impacts.

   4.5.9   Findings of fact.

      A.   In granting any variance, the Board of Adjustment shall vary any of the provisions of the zoning regulation upon a showing of all of the following:

         1.   Unnecessary hardship would result from the strict application of the regulation. It is not necessary to demonstrate that, in the absence of the variance, no reasonable use can be made of the property;

         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;

         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 is not 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.

      B.   Any variance granted must be the minimum variance required for reasonable use of the land, building, or structure. The fact that property may be utilized for greater profit, however, is not considered adequate to justify the granting of a variance.

      C.   Neither the nonconforming use of lands, buildings, or structures in the same zoning district; nor the permitted use of lands, buildings, or structures in other zoning districts; nor personal circumstances may be considered as grounds for the issuance of a variance. Furthermore, mere financial hardship does not constitute grounds for granting a variance.

      D.   The decision authority’s final decision shall be delivered in writing by personal delivery, electronic mail, or first class mail to applicant.

   4.5.10   Effect of approval.

      A.   The applicant shall file the approved variance with the County Register of Deeds within six months from the date of approval or the variance shall be deemed void.

      B.   All variances that are granted shall run with the property for which the variance is being sought and not with the owner of the property.

(Ord. passed 2-3-2021)

§ 4.6 SUBDIVISION AND MASTER DEVELOPMENT PLAN.

   4.6.1   Applicability. Subdivision approval shall be required before the division of land into two or more parcels is undertaken. The Planning Board has final authority on preliminary and final plat approval, with the exception of minor subdivision plats which review and approval shall be delegated to the UDO Administrator. Standards are given in Article 12.

   4.6.2   Major and minor subdivision definition.

      Minor Subdivision

      A minor subdivision is any subdivision activity that creates no more than ten lots (including the original lot) or involves the platting of no more than ten residential units and conforms to the minor subdivision regulations and requirements of this ordinance.

      Minor Subdivision, Expedited

      The division of one existing parcel of land under single ownership that is not exempt per G.S. § 160D-802(a); (1) where no part of the tract or parcel to be divided has been divided in the ten years prior to the proposed division; (2) the entire area of the tract or parcel to be divided is greater than five acres; (3) after division, no more than three lots result from the division and all resultant lots comply with all lot dimension size requirements of the applicable zoning district and the use of the lots is in conformity with the applicable zoning district; and (4) a permanent means of ingress and egress is recorded for each.

      Major Subdivision

      All other divisions of land that do not qualify as a minor subdivision and do not qualify for statutory exclusion.

   4.6.3   Statutory exclusions. Consistent with G.S. § 160D-802, the following activities are not considered subdivisions for the purposes of this ordinance.

      A.   The combination or recombination of portions of previously subdivided and recorded lots where the total number of lots is not increased and the resultant lots are equal to or exceed the standards of this ordinance;

      B.   The division of land into parcels greater than ten acres where no street right-of-way dedication is involved and where the resultant lots are equal to or exceed the standards of this ordinance;

      C.   The public acquisition by purchase of strips of land for water or sewer infrastructure;

      D.   The public acquisition by purchase of strips of land for the widening or opening of streets or for public transportation corridors; and

      E.   The division of a tract in single ownership whose entire area is no greater than two acres into no more than three lots, where no street right-of-way dedication is involved and where the resultant lots are equal to or exceed the standards of this ordinance.

   4.6.4   No subdivision without plat approval.

   Pursuant to G.S. § 160D-803, a final plat shall be prepared, approved, and recorded pursuant to the provisions of this ordinance whenever any subdivision of land takes place in the town’s planning jurisdiction.

      A.   No persons may subdivide land except in accordance with all of the provisions of this ordinance. In particular, no subdivision may occur unless and until a final plat of the subdivision has been approved in accordance with the provisions of this Article and recorded by the Brunswick County Register of Deeds.

      B.   Not all divisions of land constitute subdivisions that are subject to regulation under this ordinance. However, to ensure that such divisions are in fact exempt from the requirements of this ordinance, all plats creating a division of land shall be presented to the town before submittal for recordation in the Brunswick County Registry and the UDO Administrator shall indicate on the face of the plat that the division is exempt from the provisions of this ordinance if that is the case.

   4.6.5   Unlawful to record plat without plat approval.

   Pursuant to G.S. Chapter § 160D-803, no final plat of subdivision within the town planning jurisdiction shall be recorded by the Register of Deeds of Brunswick County until it has been approved by the UDO Administrator or designee or by the town’s Planning Board pursuant to the procedures established in this Article.

   4.6.6   Subdivision required. After the effective date of this ordinance, any person who, being the owner or agent of the owner of any land within the territorial jurisdiction of this ordinance, thereafter subdivides his or her land in violation of this ordinance or transfers or sells land by reference to, exhibition of, or any other use of a plat showing a subdivision of the land before the plat has been properly approved under the terms of this ordinance shall be guilty of a misdemeanor. The description by metes and bounds in the instrument of transfer or other document used in the process of selling or transferring land shall not exempt the transaction from this penalty. The town, through its attorney or other official designated by the Town Council, may take action to enjoin illegal subdivision, transfer, or sale of land by action for injunction. Further, the violation of any provision of this ordinance shall subject the offender to the penalties prescribed by G.S. § 160D-807. Illegal subdivisions will not be recognized for zoning purposes.

   4.6.7   Pre-application conference and concept plan.

      A.   All applicants seeking subdivision approval shall schedule a pre-application conference with the UDO Administrator.

      B.   Applicants shall submit a concept plan for review by the UDO Administrator. This plan may be in simple sketch form. Information requirements are given in Article 4.1.3.

      C.   Following approval of the concept plan, the preliminary master development plan (Article 4.1.3) will be developed for planned developments (including large commercial developments, and mixed use developments).

   4.6.8   Application requirements.

      A.   All applications for subdivision review shall be submitted in accordance with Article 4.1.3, (Application Requirements) and any specific requirements as directed by the town. In addition, all applications for subdivision shall include electronic versions of plats and surveyor’s files for both preliminary and final plats. Electronic files shall be in the format as directed by the UDO Administrator.

      B.   A transportation impact analysis may be required if the proposed subdivision meets the thresholds established in Article 4.11 (Transportation Impact Analysis).

   4.6.9   Major subdivision preliminary plat approval.

      A.   Applicability. A preliminary plat shall be required for all major subdivisions.

      B.   Staff consultation. Prior to submitting a preliminary plat, the applicant shall meet with the UDO Administrator and submit a concept plan in accordance with Article 4.6.6 above.

      C.   Application requirements.

         1.   Applications for preliminary plat approval shall be submitted in conformance with Article 4.6.8 (Application Requirements).

         2.   When a subdivision is to be developed in phases, a phasing plan shall be submitted for the entire development and a preliminary plat shall be submitted for each individual phase. A final plat shall be submitted for individual phases as each phase is developed. Each new phase shall be developed adjoining an earlier phase.

      D.   UDO Administrator duties and responsibilities.

         1.   Applications for preliminary plat approval shall be submitted to the UDO Administrator. The UDO Administrator shall review the application for compliance with the provisions of the ordinance.

         2.   Upon receipt of a completed application, the UDO Administrator shall distribute the application submittal to the relevant agencies for review and comment.

         3.   The UDO Administrator shall prepare a staff report based on comments provided by the relevant agencies and the Technical Review Committee, if any. The report shall be forwarded to the Planning Board for final action at the next scheduled meeting.

      E.   Action by the Technical Review Committee.

         1.   The Technical Review Committee may review the preliminary plat and associated application documents for conformance with the requirements of this ordinance in accordance with the adopted public review schedule.

         2.   Upon completion of the review period, and prior to providing written comments to the applicant stating any corrections or modifications that shall be required, the Technical Review Committee may meet with the applicant and discuss any modifications or corrections in development design that may be required, based on the recommendations made by members of the Technical Review Committee.

         3.   The applicant shall have 30 days to make corrections and return the revised application to the UDO Administrator. The applicant may apply for an extension of this review period by written request to the UDO Administrator, provided that such request shall be received prior to the expiration of the 30-day period.

         4.   Within ten business days of receipt of a revised application, the Technical Review Committee shall review the revised application for satisfactory completion of all required corrections and may make a recommendation to approve, approve with conditions, or deny the application. The application and associated comments shall then be returned to the UDO Administrator.

      F.   Action by Planning Board.

         1.   The Planning Board shall take final action on the preliminary plat application (per Article 4.6.10.I.) taking comments by the UDO Administrator and Technical Review Committee, if any, into consideration. Applications that have not received final administrative review shall not be reviewed.

         2.   The preliminary plat shall be considered by the Planning Board at the next available meeting.

         3.   The Planning Board may approve the preliminary plat, approve with minor corrections/conditions, or deny the preliminary plat.

         4.   A simple majority of all eligible voting members of the Planning Board shall be necessary for approval of any preliminary plat. The Planning Board’s minutes shall include identification of members present, and their individual vote on the preliminary plat. No final action shall be deemed to have been given by the Planning Board on the preliminary plat until the Planning Board delivers its dated written decision on the preliminary plat to the applicant (this may be delegated to the UDO Administrator to deliver; delivery may be via email, written decision on the face of the plat, or in letter form).

         5.   If the Planning Board should deny the preliminary plat, the reasons for such action shall be given to the applicant, or their agent, along with recommendations for changes in the plat.

      G.   Effect of preliminary plat approval. Upon approval of the preliminary subdivision plat, the applicant may proceed to comply with the other requirements of these regulations, including construction plan approval, preparation of the final plat, and all other approvals and permits.

      H.   Duration of preliminary plat validity. An approved preliminary plat shall remain valid for a period of 24 months, after which time the preliminary plat shall expire. If a final plat has not been approved, the preliminary plat must be resubmitted as a new application in conformance with all applicable requirements of this ordinance at the time of reapplication.

      I.   Modifications to an approved preliminary plat. Minor changes to an approved preliminary plat may be approved by the UDO Administrator. Such changes as adjusting lot lines, reducing density, increasing open space, increased screening and buffering, and adjusting stormwater or utility locations for other permits and the like qualify as minor changes. Major changes to an approved preliminary plat, such as movement of roads, new roads, increased density, and the like, will require resubmittal for review and approval as a modification to an application.

   4.6.10   Major subdivision final plat approval.

      A.   Applicability. The final plat shall constitute only that portion of the approved preliminary plat that the applicant proposes to record and develop at the time of submission. After the improvements shown on the approved preliminary plat have been installed or guaranteed for the whole or portion of a subdivision, the applicant shall submit a final plat of the area covered by such improvements.

      Approval of a preliminary subdivision plat shall not constitute approval of the final subdivision plat, nor shall it constitute approval of portions of a subdivision to be developed in future phases that have not been reviewed in conformance with this Article. Application for approval of the final plat will be considered only after the requirements for final plat approval as specified below have been fulfilled and after all other specified conditions have been met.

      B.   Application requirements.

         1.   All applications for final plat approval shall be submitted in accordance with Article 4.1.3 (Application Requirements) in addition to any specific requirements provided by the UDO Administrator.

         2.   Construction plan approvals and required permits must be received prior to final plat approval.

         3.   A land surveyor registered to practice in North Carolina shall prepare the final plat. All final plats to be recorded by the Brunswick County Register of Deeds shall be probated and shall conform to the provisions for plats, subdivisions, and mapping requirements set forth in G.S. § 47-30 as amended, and the Standards of Practice for Land Surveying in North Carolina.

      C.   UDO Administrator action. Where all required improvements have been completed, upon receipt of a completed application, the UDO Administrator shall review the application for conformance with the applicable approval criteria listed in Article 4.6.10.I. In performing such review, the UDO Administrator may consult with the Technical Review Committee or other applicable review entities or consultants. If the final plat for a subdivision is in compliance with the applicable approval criteria listed in Article 4.6.10.I., the Planning Board shall approve the final plat. If the required improvements have not been completed see provisions for improvement guarantees.

      D.   Provision of improvement guarantees. Where the required improvements have not been completed prior to the submission of the final plat, the UDO Administrator may, in consultation with the Town Council, accept from the applicant an improvements guarantee using one of the methods described in Article 4.6.12 (improvement guarantees).

      E.   Action by the Planning Board.

         1.   In the event required improvements have not been completed, upon receipt of a completed application, and agreed upon improvement guarantees, the UDO Administrator shall review the application for conformance with the applicable approval criteria listed in Article 4.6.10.I. In performing such review, the UDO Administrator may consult with the Technical Review Committee or other applicable review entities or consultants. The UDO Administrator shall forward the final plat to the Planning Board for review prior to its next scheduled meeting and the Planning Board shall take final action within 30 days; however, this time period may be extended upon written request of the applicant if the UDO Administrator finds that extensive modifications are necessary.

         2.   If the final plat for a subdivision is in compliance with the applicable approval criteria listed in Article 4.6.10.I., the Planning Board shall approve the final plat. This approval and all other required endorsements (see F below) shall be noted on the original and three copies of the final plat. The original shall be returned to the applicant. One copy shall be transmitted to the Brunswick County Health Department, one copy shall be transmitted to the Brunswick County Engineering and Utilities, and one copy shall be retained for the permanent files of the Planning Board. The approval shall grant the applicant authority to record the subdivision plat and to begin the sale of lots unless the subdivider has entered into pre-sale, pre-lease agreements with lot purchasers based on preliminary plat approval under Article 4.6.9.

         3.   If the final plat is not in compliance, the reasons for disapproval and conditions to be met before approval of the final plat shall be noted on two copies of the proposed final plat. One copy shall be returned to the applicant and one copy shall be retained for the Planning Board’s records.

      F.   Required endorsements. The following endorsements shall be prominently located on all copies of an approved final plat. The UDO Administrator may waive endorsements that are not relevant.

         1.   Certificate of Survey and Accuracy. I,                                                       , certify that this plat was drawn under my supervision from (an actual survey made under my supervision) (deed description recorded in Book                , Page                 , etc.) (other); that the ratio of precision is 1:                                        ; that the boundaries not surveyed are shown as broken lines plotted from information found in Book                 , Page                ; that this plat was prepared in accordance with NCGS 47-30, as amended. Witness my original signature, registration number and seal this                day of                         , A.D. 20            .

Surveyor                              Seal or Stamp

Registration Number

         2.   Certificate of Ownership and Dedication. The undersigned hereby certifies that the land shown here on is owned by the undersigned, and hereby freely dedicates all rights-of-way, easements, streets, recreation areas, open spaces, common areas, utilities, and other improvements to public or private common use as noted on this plat, and further assumes full responsibility for the maintenance and control of said improvements until they are accepted for maintenance and control by an appropriate public body or by an incorporated neighborhood or homeowners association or similar legal entity.

      Owner(s)                                                                     

                                                Date

         3.   Certificate of Approval of Proposed State Roads. I hereby certify that these roads as installed or as designed and guaranteed are in accordance with the minimum design criteria presently required by the North Carolina Department of Transportation, Division of Highways, for the acceptance of streets onto the state system for maintenance.

District Engineer                                                                     

NCDOT - Division of Highways                           Date

         4.   Certificate of Approval of Proposed Town Streets. I hereby certify that these streets as installed or as designed and guaranteed are in accordance with the minimum design criteria presently required by the Town of St. James, for the acceptance of streets onto the town system for maintenance.

Director of Public Works                                                                  

                                                Date

         5.   Certificate of Land Use Regulation and Purpose of Plat. I,                                   , certify to one (1) of the following:

            a.   That this survey creates a subdivision of land within the area of a county or municipality that has an ordinance that regulates parcels of land;

            b.   That this survey is located in a portion of a county or municipality that is unregulated as to an ordinance that regulates parcels of land;

            c.   Any one (1) of the following:

               (1)   That this survey is of an existing parcel or parcels of land and does not create a new street or change an existing street;

               (2)   That this survey is of an existing building or other structure, or natural feature, such as a watercourse; or

               (3)   That this survey is a control survey.

            d.   That this survey is of another category, such as the recombination of existing parcels, a court-ordered survey, or other exception to the definition of subdivision;

            e.   That the information available to the surveyor is such that the surveyor is unable to make a determination to the best of the surveyor’s professional ability as to provisions contained in a) through d) above.

Surveyor

                           Seal or Stamp

Registration Number

         6.   Certificate of Approval of On-site Sewage Disposal Systems. I hereby certify that the lot(s) on this final plat have been evaluated under the current provisions of Title 15A NCAC 18A.1900 et seq., and found that it/they has/have acceptable soils for an on-site, subsurface sewage treatment and disposal system.

Brunswick County                                                                  

Environmental Health                              Date

         7.   Certificate of Lots Served by Public Water and/or Sewer Systems. I hereby certify that the construction plans for the water system and/or sewer system have been approved for                                            (Name of Subdivision). The utilities have been constructed, or secured via a financial guarantee, to                                            (Service Provider) standards.

Authorizing Agent                                                                  

                                             Date

         8.   Certificate of Approval for Recording. I hereby certify that the subdivision plat shown hereon has been found to comply with the Subdivision Regulations of the Town of St. James, North Carolina and that this plat has been approved by the St. James Planning Board for recording in the Office of the Register of Deeds. This approval is valid for a period of six months from the date of the Town Clerk’s signature.

Town Clerk, Town of St. James                                                         

(Amended 05/06/2008)                              Date

         9.   Certificate of Exemption. I hereby certify that the division of land shown and described here on is not a division of land subject to the Town of St. James Subdivision Ordinance. No approval of this plat is required.

UDO Administrator                                                                  

                                             Date

         10.   Certificate of Review Officer. I,                                             , Review Officer of (                                          ) (name of county), certify that the map or plat to which this certification is affixed meets all statutory requirements for recording.

Review Officer                                                                     

                                             Date

      G.   Appeal. If the final plat is denied by the Planning Board, the applicant may appeal to the Board of Adjustment. Any appeal must be taken within 30 days after the decision of the Planning Board is filed in the town office or after a written copy of the decision is mailed to the appellant by registered mail return receipt requested, whichever is later. Such appeal shall be for the Board of Adjustment to determine if the Planning Board correctly applied the subdivision review requirements to the subdivision request.

      H.   Effect of denial. The applicant shall have the later of six months from the time of final notification of denial by the Planning Board or the expiration of 24 months after preliminary plat approval to submit a revised final plat, at which time the approved preliminary plat shall be null and void.

      I.   Final plat approval criteria. Subdivision plats shall be approved only when the Planning Board finds that all of the following conditions exist:

         1.   The plat substantially complies with the approved preliminary plat;

         2.   The plat complies with the standards of Article 12, (Subdivision Standards), and the other applicable requirements of this ordinance;

         3.   All necessary rights-of-way have been offered for reservation or dedication;

         4.   All necessary drainage easements have been provided; and

         5.   All required endorsements and certifications have been obtained.

      J.   Expiration of final plat approval/recordation required. Approved final plats shall be recorded with the Brunswick County Register of Deeds within six months from the date of approval, if the final plat is not recorded within this period, it shall expire. The plat may be resubmitted for review and it shall be reviewed against the ordinance in effect at that time.

      K.   Limitations of final plat approval. The approval of a final plat pursuant to regulations adopted under this Article shall not constitute or affect the acceptance by the town or the public of the dedication of any street or other ground, public utility line, or other public facility shown on the plat. Public roads must be accepted by the state’s Department of Transportation.

   4.6.11   Minor subdivision plat approval.

      A.   The procedures for approval of minor subdivisions are intended to simplify processing of routine small subdivisions with due regard to protection of the public interest. The approval process difference between the minor and major subdivision process is that minor subdivisions do not require a preliminary plat.

         1.   Applicants petitioning for minor subdivision plat approval shall meet with the UDO Administrator and submit a concept plan or, alternatively, a survey plat, for a determination of whether the approval process authorized by this Article can be used.

         2.   The UDO Administrator may require the applicant to submit additional information to make this determination, including, but not limited to, a copy of the tax map showing the land being subdivided and all lots created out of that tract of land within the previous five years.

         3.   The UDO Administrator may refer the minor plat application to the TRC for consideration and recommendation. Following TRC review, if any, the UDO Administrator may approve, approve with minor modification, deny the application, or refer the application to the Planning Board for a final decision. Reasons for the decision shall be transmitted in writing to the applicant. Delivery may be via email, written decision on the face of the plat, or in letter form.

      B.   There shall be only one minor subdivision approved on any original tax parcel in any five- year period.

      C.   After completion of a pre-application conference and sketch plan review, the applicant may apply directly for approval of a final plat.

      D.   A minor subdivision plat shall only be approved when it meets all of the approval criteria set forth below:

         1.   The plat complies with the applicable standards of Article 12, Subdivision Standards, and the other applicable requirements of this ordinance;

         2.   The plat indicates that all subject lots will have frontage on existing approved streets, or access for ingress and egress on a private street;

         3.   All necessary drainage easements have been provided; and

         4.   All required endorsements and certifications have been obtained (see Article 4.6.10(F)).

      E.   Notwithstanding the above, qualified expedited minor subdivisions are to be approved administratively by the UDO Administrator when all of the approval criteria set forth below are met. A minor subdivision plat shall only be approved when it meets all of the approval criteria set forth below:

         1.   The tract or parcel to be divided is not exempted under G.S § 160D-802(a);

         2.   No part of the tract or parcel to be divided has been divided under this subsection in the ten years prior to division;

         3.   The entire area of the tract or parcel to be divided is greater than five acres;

         4.   After division, no more than three lots result from the division;

         5.   After division, all resultant lots comply with all lot dimension size requirements of the applicable zoning district, the use of the lots is in conformity with the applicable zoning district, and a permanent means of ingress and egress is recorded for each lot.

   4.6.12   Improvement guarantees.

      A.   Agreement and security required. In lieu of requiring the completion, installation, and dedication of all improvements prior to final plat approval, the town may enter into an agreement with the subdivider whereby the subdivider shall agree to complete all required improvements, with the exception of electric utilities. This agreement shall be accompanied by a survey plat indicating the property boundaries and lot lines, if applicable, of the area subject to the agreement. Once said agreement is signed by both parties and the security required herein is provided, the final plat may be approved by the appropriate responsible authority as provided in this ordinance, if all other requirements of this ordinance are met. The town shall not have the authority to mandate one type of guarantee over another. To secure this agreement, the subdivider shall provide, subject to the approval of the UDO Administrator, either one or a combination of the following guarantees equal to 125% of the entire cost as provided herein.

         1.   Surety performance bond(s). The subdivider shall obtain a performance bond(s) from a surety bonding company authorized to do business in North Carolina. The bonds shall be payable to the town and shall be equal to, either alone or in combination with any other surety discussed in this Article, a total amount equal to 125% of the entire cost, as estimated by the subdividers and approved by the town, of installing all required improvements, with the exception of electric utilities.

         2.   Security. The subdivider shall deposit an irrevocable letter of credit or other instrument readily convertible into cash at face value, either with the town or in escrow with a financial institution designated as an official depository of the town. The amount of the deposit shall be equal, either alone or in combination with any other security discussed in this Article, to a total amount equal to 125% of the cost, as estimated by the subdivider’s engineer and approved by the town of installing all required improvements, with the exception of electric utilities. If cash or other instrument is deposited in escrow with a financial institution as provided above, then the subdivider shall file with the town an agreement between the financial institution and himself or herself guaranteeing the following:

            a.   That said escrow account shall be held in trust until released by the town and may not be used or pledged by the subdivider in any other matter during the term of the escrow; and

            b.   That in the case of failure on the part of the subdivider to complete said improvements, the financial institution shall, upon notification by the town and submission by the town to the financial institution of an engineer’s estimate of the amount needed to complete the improvements, immediately either pay to the town the funds estimated to complete the improvements, up to the full balance of the escrow account, or deliver to the town any other instruments fully endorsed or otherwise made payable in full to the town.

         3.   Certification of electric utilities. A written statement by the utility company authorized to serve the subdivision stating their commitment to install electric utilities with projected completion dates may be accepted in lieu of guarantees set forth in paragraphs 1 and 2 of this Article.

      B.   Default. Upon default, meaning failure on the part of the subdivider to complete the required improvements in a timely manner as spelled out in the performance bond or escrow agreement, then the surety, or the financial institution holding the escrow account shall pay all or any portion of the bond or escrow fund to the town up to the amount needed to complete the improvements based on an engineering estimate. Upon payment, the town may expend such portion of said funds as it deems necessary to complete all or any portion of the required improvements.

      C.   Release of guarantee security.

         1.   The performance guarantee shall be returned or released, as appropriate, in a timely manner upon the acknowledgment by the town that the improvements for which the performance guarantee is being required are complete. The town shall return letters of credit or escrowed funds upon completion of the required improvements to its specifications or upon acceptance of the required improvements, if the required improvements are subject to town acceptance. When required improvements that are secured by a bond are completed to the specifications of the town, or are accepted by the local government, if subject to its acceptance, upon request by the developer, the town shall timely provide written acknowledgment that the required improvements have been completed.

         2.   In the event that the applicant wishes to occupy any building or any portion of any building prior to the completion of the required site improvements, the town shall retain the bond guaranteeing improvements until the remaining required improvements are completed.

      D.   Duration and extension.

         1.   The duration of the performance guarantee shall initially be one year, unless the developer determines that the scope of work for the required improvements necessitates a longer duration. In the case of a bonded obligation, the completion date shall be set one year from the date the bond is issued, unless the developer determines that the scope of work for the required improvements necessitates a longer duration.

         2.   A developer shall demonstrate reasonable, good-faith progress toward completion of the required improvements that are secured by the performance guarantee or any extension. If the improvements are not completed to the specifications of the town, and the current performance guarantee is likely to expire prior to completion of the required improvements, the performance guarantee shall be extended, or a new performance guarantee issued, for an additional period. An extension under this subdivision shall only be for a duration necessary to complete the required improvements. If a new performance guarantee is issued, the amount shall be equal to 125% of the total cost of all incomplete improvements.

   4.6.13   Re-subdivision procedures. For any re-platting or re-subdivision of land, the same procedures, rules, and regulations shall apply as prescribed herein for an original subdivision submittal.

(Ord. passed 2-3-2021; Ord. 2023-03, passed 3-1-2023)

§ 4.7 SITE PLAN.

   4.7.1   Applicability. All proposed development, with the exception of subdivisions and single- family dwellings on individual lots, shall be subject to the site plan review process.

   4.7.2   Approval Authority. Minor site plans may be approved by the UDO Administrator if the site plan meets the following criteria:

      (a)   Parking lot expansions where there is no increase in floor area;

      (b)   Accessory uses in commercial districts; and

      (c)   Recreational uses in approved subdivisions.

      Projects shall also be reviewed as a minor site plan where they:

      (a)   Do not involve multi-family dwelling units;

      (b)   Do not involve the development of more than ten residential units or 50,000 square feet of nonresidential space; and

      (c)   Do not require a traffic impact analysis.

   The Planning Board shall be responsible for final action regarding all other site plans.

   4.7.3   Pre-application conference. All applicants seeking site plan approval shall schedule a pre- application conference with the UDO Administrator, in accordance with Article 4.1.1.

   4.7.4   Application requirements.

      A.   An application for site plan review shall be submitted on forms provided by the town (see Article 4.1.3 for site plan minimum requirements). In addition, applicants shall submit electronic versions of the site plan in the format as required by the town.

      B.   A transportation impact analysis may be required if the proposed site plan meets the thresholds established in Article 4.11 (transportation impact analysis).

      C.   All site plans shall clearly indicate all required open space and/or recreation area that has been dedicated or reserved. Refer to the relevant standards for subdivisions shown in Article 12.9 (Recreation Space).

   4.7.5   Notice requirements. See Article 4.1.4 for notice requirements.

   4.7.6   Action by the UDO Administrator.

      A.   Upon receipt of a completed application, the UDO Administrator shall review all site plans for conformance with the approval criteria found in Article 4.7.8. In addition, the UDO Administrator may consult with the Technical Review Committee, consultants, or with any county or state official.

      B.   The UDO Administrator shall prepare a staff report and shall forward the staff report to the Planning Board for review and final action.

      C.   The UDO Administrator shall place the item on the next available agenda of the Planning Board.

   4.7.7   Action by the Planning Board.

      A.   Before taking action on a site plan, the Planning Board shall consider the staff report provided by the UDO Administrator.

      B.   The Planning Board may approve the application, approve with conditions, approve with modifications, or disapprove the application.

      C.   Written notification of the Board decision shall be transmitted to the applicant within ten working days of the decision.

   4.7.8   Approval criteria.

   In approving an application, the Planning Board shall consider the following:

      A.   Compliance with all applicable requirements of this ordinance;

      B.   Agreement with the most recently adopted CAMA Land Use Plan/comprehensive plan and any applicable local area plans;

      C.   Meets screening, buffering, wetlands, drainage, bulkhead, erosion control, retainer wall, and floodplain requirements;

      D.   For nonresidential and multi-family projects, the site plan displays the location of trash handling, recycling, grease bins, and other waste-related facilities employed in the normal operation of the use;

      E.   Adequacy and location of parking areas and pedestrian and vehicular access points;

      F.   Compliance with site construction specifications;

      G.   Adequacy of stormwater facilities, water supply, sanitary sewer service, fire protection and hydrants, street signs, and street lighting in conformance with state, county, and town standards; and

      H.   Compliance with requirements for easements or dedications.

   4.7.9   Dedication and improvements.

      A.   In the development of any property for which site plan approval is required, the applicant shall be required to dedicate any additional right-of-way necessary to the width required by the state for streets adjoining the property, to install curbs and gutters and pave all streets adjoining the property to NCDOT standards, and to install sidewalks. Refer to Article 12 for applicable subdivision standards.

      B.   The applicant shall bear the costs of the installation of all on-site improvements as required by this ordinance, including provision for surface drainage, pavement, landscaping, and utilities. Any applicant required to install or construct off-site improvements pursuant to this Article may, with the approval of the UDO Administrator as a condition of site approval, and upon a determination by the UDO Administrator that such improvements are not necessary or desirable at the time but will be needed in the future, make a payment in lieu of such improvements or part thereof. The amount of such payment shall be an amount estimated by the town to be the actual and total installation and construction costs of such improvements. The amount paid for a given improvement shall be considered total and complete payment for the improvements considered and will preclude any further assessment of the property in the event the town elects to install such improvements at a later date. Full payment shall be made before any building permit or certificate of occupancy is issued for any use shown on the site plan.

      C.   For all residential developments approved after the effective date of this ordinance, recreation and open space dedication in accordance with the standards for subdivisions contained in Article 12.

   4.7.10   Improvement guarantees.

   The following requirements shall apply to all site plans:

      A.   Prior to the approval of any application, the applicant shall submit a cost estimate and time schedule for installation of each phase of the site improvements; and

      B.   The town may require improvement guarantees for on-site and/or off-site improvements in conformance with Article 4.6.12 above.

   4.7.11   Inspections of required improvements. Inspections during the installation of site improvements shall be made by the entity responsible for such improvements as required to certify compliance with approved site plans. The town shall accept no improvements for maintenance unless and until the requirements regarding public improvements have been met.

   4.7.12   Site plan amendments. Limited changes to an approved site plan may be approved by the UDO Administrator. Changes that can be approved administratively include, but are not limited to:

      Adjusting lot lines;

      Increasing open space;

      Reducing density;

      Increasing perimeter buffering; and

      Adjusting stormwater and utility locations for other permits.

   In granting such approval, the UDO Administrator may consult with the Technical Review Committee.

   Significant changes to an approved site plan must be resubmitted for review and approval as a new application. Examples of changes considered significant include, but are not limited to, creation of new roads, movement of roads, increased density, decreased open space, changes to ingress/egress, and reduced perimeter buffering.

   4.7.13   Duration of validity. An approved site plan shall remain valid for a period of 180 days from the date of approval. After the initial 180-day period, construction or development activity must be actively pursued to maintain validity. If construction or development activity is discontinued for a period of greater than 90 calendar days, the site plan shall expire and a new application must be submitted.

   4.7.14   Building permit/certificate of occupancy. No building permit or certificate of occupancy shall be issued until the required site plan of the proposed use or development has been approved.

   4.7.15   Appeal. Final action on a site plan may be appealed to the Board of Adjustment and the decision of the Board shall be final.

(Ord. passed 2-3-2021)

§ 4.8 VESTED RIGHTS AND PERMIT CHOICE.

   4.8.1   Establishment of a vested right, general.

      A.   A vested right shall be deemed established upon the valid approval of a site-specific vesting plan or multi-phased development following any required notice and public hearing as provided for by law (Article 4.1.4 and Article 4.1.5).

      A site-specific vesting plan may be in the form of a planned unit development, a subdivision plat, a preliminary or general development plan (e.g., site plan, a master development plan, and the like), a conditional district zoning plan, or any other land use approval designation utilized by the town. A variance shall not constitute a site-specific vesting plan, and approval of a site-specific vesting plan with the condition that a variance be obtained shall not confer a vested right unless and until the necessary variance is obtained.

      B.   The approval authority may approve a site-specific vesting plan upon such terms and conditions as may be reasonably necessary to protect the public health, safety, and welfare. Such conditional approval shall result in a vested right being established, provided that failure to satisfy any of the terms and conditions so imposed will result in a forfeiture of vested rights.

      C.   A site-specific vesting plan shall be deemed approved as of the effective date of the approval authority’s final action or adoption of an ordinance relating thereto.

   4.8.2   Approval procedures and approval authority.

      A.   Except as otherwise provided in this Article, an application for site-specific vesting plan approval shall be processed in accordance with the procedures established by this 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.

      B.   Notwithstanding the provisions of division A. above, if the authority to issue a particular development approval, SUP, or rezoning has been delegated by ordinance to a board, committee, or administrative official other than the Town Council, 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 following notice and legislative hearing as provided in G.S. § 160D-601. Such hearing and granting of vested rights shall occur after the initial development approval is issued.

   4.8.3   Duration of vested rights.

      A.   A vested right established pursuant to this Article shall remain vested for a period of two years from the effective date thereof. The town may provide for rights to be vested for a period exceeding two years but not exceeding five years where warranted in light of all relevant circumstances, including, but not limited to, the size and phasing of development, the level of investment, the need for the development, economic cycles, and market conditions or other considerations.

      B.   Nothing in this Article shall be construed to exempt a site-specific vesting plan with respect to which a vested right has been established from subsequent review or approvals by the town to ensure compliance with the terms and conditions of the original approval as provided for in the original approval or by applicable town code provisions.

      C.   The establishment of a vested right pursuant to this Article 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. These include, but are not limited to: building, fire, plumbing, electrical, and mechanical codes. New and amended zoning regulations that would be applicable to certain property if a vested right had not been established shall become effective upon the expiration or termination of the vested right in accordance with this Article.

      D.   Upon issuance of a building permit, the expiration provisions of G.S. § 160D-1111 and the revocation provisions of G.S. § 160D-1115 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 Article is outstanding.

   4.8.4   Termination of vested rights. A zoning right that has been vested as provided in this Article shall terminate:

      A.   At the end of the applicable vesting period with respect to buildings and uses for which no valid building permit applications have been filed;

      B.   Upon written request or with the written consent of the affected landowner;

      C.   Upon findings by the Town Council, by ordinance after notice and an evidentiary hearing, that natural or human-made hazards on or in the immediate vicinity of the property would, if uncorrected, pose a serious threat to the public health, safety, and welfare if the project were to proceed as contemplated in the site-specific vesting plan;

      D.   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 town, together with interest thereon at the legal rate until paid. Compensation shall not include any diminution in the value of the property which is caused by such action;

      E.   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 vesting plan; or

      F.   Upon the enactment or promulgation of a state or federal law or regulation that precludes development as contemplated in the site-specific vesting 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.

   4.8.5   Transitional provisions.

      A.   Jurisdiction. Any project for which a building and/or zoning permit has been issued by the county prior to the effective date of an annexation or an extraterritorial jurisdiction expansion may be completed under the requirements of the ordinance(s) in effect at the time all required permits/certificates were issued. Upon completion, any development, project, or improvement not in full compliance with the requirements of this ordinance shall be considered nonconforming.

      B.   Existing vested rights. The town recognizes that some owners of property within the town limits have vested rights to complete development and/or construction in accordance with approvals issued or granted by the county prior to the effective date of this ordinance. Subsections below are intended to facilitate the interpretation of existing vested rights in the situations described therein.

         1.   Work in progress on effective date. The adoption of this ordinance or a part hereof does not require a change in the plans, construction, or designated use of any building for which actual construction was lawfully begun prior to the adoption of this ordinance, provided that such actual construction and work is not discontinued for an uninterrupted time lasting 60 calendar days or longer. Such interruption shall result in revocation of building and zoning permits unless the UDO Administrator grants a time extension. For the purposes of this provision ACTUAL CONSTRUCTION includes:

            a.   Demolition and removal of an existing structure in connection with approved and permitted site work and/or construction;

            b.   Site work; or

            c.   Erection or installation of construction materials in permanent position.

         2.   Approvals granted before effective date. Building permits, variances, special use permits, subdivision plans, site plans, site-specific vesting plans, multi-phased developments, planned unit development plans, master plans, and other similar approvals by the county that are valid on the day prior to the effective date of this ordinance shall remain effective until such approvals would have expired under applicable law in effect on the day prior to the effective date of this ordinance. Site improvements, buildings, and other structures may be completed in accordance with such approvals even if any such site improvement, building, or other structure does not fully comply with the provisions of this ordinance. If work is not commenced within the time that an approval would have remained effective under applicable law in effect on the day prior to the effective date of this ordinance, or any extension granted, then the site improvement, building, and/or structure must meet the standards of this ordinance as it is in effect at the time of reapplication.

         3.   Application pending on effective date. Applications for building permits, variances, special use permits, subdivision plans, site plans, site-specific vesting plans, multi-phased developments, master plans, or other similar approvals that were submitted to the county in complete form and are pending approval on the effective date of this ordinance will be reviewed and acted on under the terms of the county requirements in effect on the effective date of this ordinance. Applications that were submitted to the county, but were not in complete form or pending approval prior to the effective date of this ordinance, will be reviewed and acted upon under the provisions of this ordinance.

         4.   Violations. A violation of the prior applicable county regulation will continue as a violation under this ordinance, and will be subject to penalties and enforcement under Article 6 of this ordinance. The adoption of this ordinance does not affect nor prevent any pending or future action to abate violations of prior regulations.

         5.   Nonconformities. Nonconformities under a prior regulation may continue under these regulations as provided in Article 5 herein.

   4.8.6   Exemptions.

      A.   These regulations shall not apply to any land or structure for which, prior to the effective date hereof, there is a properly approved site-specific vesting plan as required by the requirements previously adopted. Any preliminary or final subdivision plat approvals required for such approved or exempted site-specific vesting plans shall be conducted in accordance with the requirements of the previous zoning ordinance or subdivision ordinance. The provisions of this ordinance shall not apply to existing bona fide farms within the extra-territorial jurisdiction (ETJ).

      B.   In accordance with G.S. § 160D-913, the town’s UDO applies to state-owned lands only when a building is involved.

   4.8.7   Miscellaneous provisions.

      A.   A vested right, once established as provided for in this Article, precludes any zoning action by the town that would change, alter, impair, prevent, diminish, or otherwise delay the development or use of the property as set forth in an approved site-specific vesting plan.

      B.   Nothing in this Article 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 zoning ordinance.

      C.   A vested right is not a personal right, but shall attach to and run with the land with respect to the affected property. All successors in title and interest of the owner who obtained the vested right shall be entitled to exercise the right.

   4.8.8   Voluntary annexation. A petition for annexation filed with the town under G.S. §§ 160A-31 or 160A-58.1 shall contain a signed statement by the landowner(s) of said property 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 or 160D-108.1. 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.

   4.8.9   Limitations. Nothing in this Article is intended or shall be deemed to create any vested right other than those established pursuant to G.S. §§ 160D-108 or 160D-108.1.

   4.8.10   Repealer. In the event that G.S. §§ 160D-108 or 160D-108.1 is repealed, this Article shall be deemed repealed and the provisions hereof no longer effective.

   4.8.11   Effective date. This Article shall only apply to site-specific vesting plans approved on or after the effective date of this ordinance.

   4.8.12   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 decision has been challenged and found to be wrongfully denied or illegal, G.S. § 143-755 applies.

(Ord. passed 2-3-2021)

Statutory reference:

   Variances, see G.S. § 160D-705(d)

§ 4.9 SPECIAL USE PERMIT.

   4.9.1   Purpose and applicability.

      This ordinance provides for a number of uses to be located by right in each general zoning district subject to the use meeting certain area, height, yard, and off-street parking and loading requirements. In addition to these uses, this ordinance allows some uses to be allowed in these districts on a special use basis subject to issuance of a special use permit by the Town Council. Uses requiring a special use permit are shown in Article 7.16.

      The purpose of having these uses be special is to ensure that they would be compatible with surrounding development and in keeping with the purposes of the general zoning district in which they are located and would meet other criteria as set forth in this section.

      A special use permit allows flexibility within the zoning ordinance. A zoning ordinance cannot account for every situation, and the special use permit gives the decision authority discretion to allow uses for the benefit of the neighborhood that are not otherwise specifically allowed.

   4.9.2   Approval process. The deadline for which a special use permit application shall be filed with the UDO Administrator is the first business day of the month. The application shall be accompanied by a site plan drawn to scale, and necessary supporting text which shall include the following the information:

      A.   Name, address, and phone number of the property owner or his or her agent, and the tax parcel number of the property. The property owner or an authorized agent are the only two parties who may initiate a request for a special use permit;

      B.   A boundary survey and vicinity map, showing the property’s total acreage, zoning classification(s), general location in relation to adjoining streets, railroads, and/or waterways, date, and north arrow;

      C.   The owner’s names and addresses, tax parcel numbers, and existing land use(s) of all adjoining properties;

      D.   Proposed use of all land and structures including the number of residential units, if applicable;

      E.   Proposed number and location of all structures, their approximate area, and their approximate exterior dimensions;

      F.   All existing easements, reservations, and rights-of-way;

      G.   Delineation of areas within the regulatory floodplain, as shown on the official Federal Emergency Management Act (FEMA) flood hazard boundary maps for the town; and

      H.   Traffic, parking, and circulation plans, showing the proposed location and arrangement of parking spaces and ingress and egress to adjacent streets.

   4.9.3   Additional information.

      A.   In the course of evaluating the proposed special use, the Town Council may request additional information from the applicant. A request for any additional information may temporarily suspend any further consideration of the application by the Town Council.

      B.   This information requested may include, but shall not be limited to, the following as considered necessary by the Town Council:

         1.   Stormwater drainage plan;

         2.   Existing and proposed topography at five-foot contour intervals or less;

         3.   The existing and proposed location of all water and sewer lines and fire hydrants intended to serve the proposed development;

         4.   Proposed number, type, and location of signs;

         5.   A transportation impact analysis of the proposed development prepared by a qualified transportation or traffic engineer or planner as defined by Article 4.11;

            a.   A cover sheet which provides, in summary form, a description of the proposed project;

            b.   A statement of purpose and need of the project;

            c.   For projects proposed by public entities, a list of alternatives of the proposed project;

            d.   A succinct description of the environment affected by the project;

            e.   A discussion of short and long-term consequences of the project on the environment, including any adverse environmental impacts which cannot be avoided; and

            f.   A list of means which could be employed to mitigate any negative effects on the environment caused by this project.

         7.   A description of all screening and landscaping required by these regulations and/or proposed by the applicant; and

         8.   Proposed phasing, if any, and approximate completion time for the project.

   4.9.4   Application completeness.

      A.   No application shall be deemed complete unless it contains or is accompanied by all items listed in Article 4.9.2 and as may be required by Article 4.9.3 and a fee, in accordance with a fee schedule approved by the Town Council for the submittal of special use permit applications (see Article 2.17).

      B.   Eight copies of an application, and all attachments and maps, for a special use permit shall be submitted to the town.

      C.   Once complete, the UDO Administrator shall notify the Board of Adjustment that an evidentiary hearing must be scheduled.

   4.9.5   Review of approval of a conditional zoning district.

      A.   It is intended that property shall be reclassified to a conditional zoning district only in the event of firm plans to develop the property. Therefore, no sooner than three years after the date of approval of the petition, the UDO Administrator may examine the progress made toward developing the property in accordance with the approved petition and any conditions attached to the approval.

      B.   A report of the findings of the UDO Administrator may be provided for Planning Board consideration, which may then recommend that the property be rezoned to its previous zoning classification or to another district

   4.9.6   Notice/hearing.

      A.   Special use permit cases are quasi-judicial, and all witnesses are to be sworn in.

      B.   Prior to the Town Council making a decision on a special use permit, a quasi-judicial evidentiary hearing shall be conducted. A quorum of the Board is required for this hearing. Mailed and posted notice of the hearing shall be in accordance with Article 4.1.4.

         1.   Evidence/presentation of evidence.

            a.   All persons who intend to present evidence to the Board of Adjustment shall be sworn.

            b.   All findings and conclusions necessary to the issuance or denial of the requested permit or appeal (necessary findings) shall be based upon reliable evidence. Competent evidence (evidence admissible in a court of law) shall be preferred whenever reasonably available, but in no case may necessary findings be based solely upon incompetent evidence unless competent evidence is not reasonably available, the evidence in question appears to be particularly reliable, and the matter at issue is not seriously disputed.

            c.   The Town Council has the authority to limit testimony that is irrelevant.

            d.   The entirety of a quasi-judicial hearing and deliberation shall be conducted in open session.

            e.   Parties to a quasi-judicial hearing have a right to cross-examine witnesses.

            f.   Factual findings must not be based on hearsay evidence which would be inadmissible in a court of law.

            g.   If a Town Council member has prior or specialized knowledge about a case, that knowledge should be disclosed to the rest of the Board and parties at the beginning of the hearing.

   4.9.7   Town Council review and action.

      A.   Once the application has been accepted, and required notification have been completed the Town Council shall review the special use application at their next schedule meeting, as long as it is received at least 25 days in advance of the meeting.

      B.   The Town Council may, in its review, suggest reasonable conditions to the location, nature, and extent of the proposed use and its relationship to surrounding properties, parking areas, driveways, pedestrian and vehicular circulation systems, screening and landscaping, timing of development, and any other conditions the Town Council may find appropriate. The conditions may include dedication of any rights-of-way or easements for streets, water, sewer, or other public utilities necessary to serve the proposed development. Conditions and safeguards imposed under this subsection shall not include requirements for which the town does not have authority under statute to regulate nor requirements for which the courts have held to be unenforceable if imposed directly by the local government, including, without limitation, taxes, impact fees, building design elements within the scope of G.S. § 160D-702(b), driveway-related improvements in excess of those allowed in G.S. §§ 136-18(29) and 160A-307, or other unauthorized limitations on the development or use of land.

      C.   In approving an application for a special use permit, the Town Council may attach fair and reasonable conditions to the approval. The applicant will have a reasonable opportunity to consider and respond to any additional requirements prior to approval or denial by the Board, which must be consented to in writing. In no instance shall any of these conditions be less restrictive than any requirements which would pertain to that particular development found elsewhere in a similar zoning district.

      D.   The applicant has the burden of producing competent, material, and substantial evidence tending to establish the facts and conditions which division E. below require.

      E.   The Town Council shall issue a special use permit if it has evaluated an application through a quasi-judicial process and determined that:

         1.   The proposed use will have either a minimal effect or positive effect on the public health or safety;

         2.   The use meets all required conditions and specifications;

         3.   The proposed use will have no material adverse effect on the value of adjoining or abutting properties unless the use is a public necessity; and

         4.   The proposed use is in harmony with the CAMA Land Use Plan/comprehensive plan and/or other plans adopted by the Town Council.

   4.9.8   Effect of approval. If an application for a special use permit is approved by the Town Council, the owner of the property shall have the ability to develop the use in accordance with the stipulations contained in the permit, or develop any other use listed as a permitted use for the general zoning district in which it is located.

   4.9.9   Binding effect.

      A.   Any special use permit so authorized shall be binding to the property included in the permit unless subsequently changed or amended by the Town Council. However, minor changes may be made with the approval of the UDO Administrator on a one-time basis only in the detail of the approved application which:

         1.   Will not alter the basic relationship of the proposed development to adjacent property;

         2.   Will not increase the gross floor area of any nonresidential use by the smaller of 10% or 10,000 square feet;

         3.   Will not decrease the off-street parking ratio or reduce the yards provided at the periphery of the site by greater than five feet.

      B.   Further changes to the development may only be made by the original issuing authority in accordance with the process for initial approval.

      C.   For example, if a special use permit is issued for a building having a gross floor area of 100,000 square feet, under this provision the property owner could, subject to approval of the UDO Administrator, construct a building with a gross floor area of up to 110,000 square feet. If the property owner subsequently had the permit amended authorizing construction of a building of up to 150,000 square feet, the UDO Administrator could allow the construction of a building having a gross area of up to 160,000 square feet.

   4.9.10   Certificate of occupancy. No certificate of occupancy for a use listed as a special use shall be issued for any building or land use on a piece of property which has received a special use permit for the particular use unless the building is constructed or used, or the land is developed or used, in conformity with the permit approved by the Board of Adjustment. In the event that only a segment of a proposed development has been approved, the certificate of occupancy shall be issued only for that portion of the development constructed or used as approved.

   4.9.11   Twelve-month limitation on re-application. If a request for special use permit is denied by the Town Council, a similar application for the same property or any portion thereof shall not be filed until the expiration of a 12-month period from the date of the most recent denial. This waiting period shall not be applicable where the application for a special use permit is substantially different.

   4.9.12   Change in special use permit. Any request to materially change the special use permit once it has been issued must first be reviewed and approved in accordance with Article 4.9.2a requiring the same procedure as was used for the initial approval of the permit.

   4.9.13   Implementation of special use permit (SUP). Unless the Town Council issues a special use permit, which either is specifically exempt from any time constraints or has some other agreed upon time period for implementation of the site-specific vesting plan, the vesting period has begun upon approval of the site-specific vesting plan and issuance of the permit (Article 4.8).

   If the development project is not completed by the expiration of the vested rights or previously approved time frame, the UDO Administrator shall notify the applicant of this finding and, within 60 days of the notification, the Town Council shall make a recommendation concerning the revision of the special use permit. The Board, after having conducted an evidentiary hearing to consider the revision, may then rescind the permit or extend the life of the permit for a specified period of time. Due notice of the public hearing shall be given as prescribed in Article 4.9.6.

(Ord. passed 2-3-2021; Ord. 2023-03, passed 3-1-2023)