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)