Loading...
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)
4.8.1 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)
4.9.1 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)
4.10.1 Applicability. As specified in G.S. § 160D-405, an appeal by any person aggrieved by a final order, interpretation, or decision of the UDO Administrator or other administrator in regard to the provisions of this ordinance may be taken to the Board of Adjustment.
4.10.2 Application requirements.
A. Any person who has standing under G.S. § 160D-1402(c) or the town may appeal a decision to the Board of Adjustment. An appeal of an administrative decision shall be taken by filing a written notice of appeal with the UDO Administrator and the Board of Adjustment specifying the grounds for the appeal. The appeal shall be submitted on a form provided by the town.
B. A notice of appeal of an administrative decision shall be considered filed when a completed application is delivered to the UDO Administrator. The date and time of filing shall be entered on the notice.
4.10.3 Deadline for submission of application. An appeal of an administrative decision shall be filed with the UDO Administrator and Board of Adjustment within 30 days of receipt of the written decision. The official who made the decision shall give written notice to the owner of the property subject to the decision and to the party who sought the decision, if different from the owner. The written notice shall be delivered by personal delivery, electronic mail, or by first class mail. Any person with standing to appeal has 30 days from receipt from any source of actual or constructive notice of the final decision or notice of determination within which to file an appeal. In the absence of evidence to the contrary, notice given pursuant to G.S. § 160D-403(b) by first class mail is deemed received on the third business day following deposit of the notice for mailing with the United States Postal Service.
4.10.4 Notice and public hearings. The Board of Adjustment shall hold a quasi-judicial evidentiary hearing and give posted and mailed notice in accordance with Article 4.1.4.
4.10.5 Action by UDO Administrator. The UDO Administrator shall transmit to the Board of Adjustment all the documents and exhibits constituting the record upon which the action appealed was taken. The official shall also provide a copy of the record to the appellant and to the owner of the property that is the subject of the appeal if the appellant is not the owner. The official who made the decision or the person currently occupying that position, if the decision maker is no longer employed by the town, shall be present at the evidentiary hearing as a witness.
4.10.6 Action by Board of Adjustment.
A. The Board of Adjustment may reverse or affirm (wholly or partly) or may modify the order, requirement, decision, or determination appealed from and shall make any order, requirement, decision, or determination that in its opinion ought to be made in the case before it. To this end, the Board of Adjustment shall have all the powers of the officer from whom the appeal is taken.
B. A motion to reverse, affirm, or modify the order, requirement, decision, or determination appealed from shall include, insofar as practicable, a statement of the specific reasons or findings of fact that support the motion.
C. If a motion to reverse or modify is not made, or fails to receive the concurring vote of a simple majority of the members of the Board, the appeal shall be denied.
4.10.7 Effect of appeal.
A. An appeal of a notice of violation or other enforcement order stays enforcement of the action appealed from and accrual of any fines assessed during the pendency of the appeal to the Board of Adjustment and any subsequent appeal in accordance with G.S. § 160D-1402 or during the pendency of any civil proceeding authorized by law or appeals therefrom, unless the official who made the decision certifies to the Board after notice of appeal has been filed that, because of the facts stated in an affidavit, a stay would cause imminent peril to life or property or, because the violation is transitory in nature, a stay would seriously interfere with enforcement of the development regulation. In that case, enforcement proceedings are not stayed except by a restraining order, which may be granted by a court. If enforcement proceedings are not stayed, the appellant may file with the official a request for an expedited hearing of the appeal, and the Board shall meet to hear the appeal within 15 days after such a request is filed.
B. Notwithstanding any other provision of this section, appeals of decisions granting a development approval or otherwise affirming that a proposed use of property is consistent with the development regulation does not stay the further review of an application for development approvals to use the property; in these situations, the appellant or town may request and the Board may grant a stay of a final decision of development approval applications, including building permits affected by the issue being appealed.
C. An appeal shall not stop action lawfully approved (including construction activities authorized by a building permit). Only actions presumed in violation of this ordinance are stayed.
(Ord. passed 2-3-2021)
Statutory reference:
Board decisions, see G.S. § 160D-406(j)
4.11.1 Applicability. A transportation impact analysis may be required at the discretion of the UDO Administrator in conjunction with an application for:
A. Zoning map amendments - planned unit development (Article 4.4);
B. Major preliminary plat of a subdivision for more than 50 lots (Article 4.6);
C. Major site plan for a residential use expected to generate more than 300 vehicle trips per day (Article 4.7) based on the latest edition of the Institute of Transportation Engineers (ITE) Trip Generation Manual. Commercial projects may be required to submit a traffic impact analysis if the project can be anticipated to generate at least 100 vehicle trips at peak hour or 1,000 vehicle trips per day based on the latest edition of the Institute of Transportation Engineers (ITE) Trip Generation Manual; and
D. Special use permit (Article 4.9)
4.11.2 Pre-application conference.
A. All applicants submitting a transportation impact analysis shall schedule a pre-application conference with the UDO Administrator, in accordance with Article 4.1.1.
B. The UDO Administrator shall determine the type and scope of the study during the pre- application conference, which may involve representatives from other agencies or departments including the NC Department of Transportation (NCDOT).
4.11.3 Submittal requirements. A transportation impact analysis shall be submitted on forms supplied by the town in accordance with Article 4.1.3 (application requirements) and may include some or all of the requirements listed below.
A. Type of study. A letter report, full transportation impact assessment report, or special report (such as sight distance survey).
B. Definition of impact area. Identification of the points of access and key streets and intersections to be affected by development of the subject tract. Traffic recorder and turning movement assessment locations may also have to be determined.
C. Period of analysis. The period of analysis shall be for both morning and afternoon peak hours.
D. Analysis scenarios. Scenarios for analysis shall include existing conditions, and opening year with and without development, and may include five or ten years after opening with or without development.
E. Assumptions. Trip generation and distribution assumptions including trip generation categories, diversion assumptions, and distribution assumptions. Assumed rate of growth in background traffic and developments in the area that have been approved or are under review shall also be required.
F. Duration of study. The duration of traffic studies (the time period for which they are considered a valid basis for approvals) for large projects, particularly planned unit development, will be evaluated on a case-by-case basis as part of the application review process.
F. Existing condition survey.
1. Street system description. The street system shall be described, including geometric features, lane usage, traffic control, signage, sight distances, and adjacent uses and curb cuts.
2. Traffic volumes. Existing peak hour traffic volumes shall be provided for the impact area. Data shall be adjusted for daily and seasonal variations. Turning movement counts for peak hour shall also be required for critical intersections.
3. Capacity analysis. Existing capacity of signalized and un-signalized intersections.
4. Other details. Other details may be required at the discretion of the UDO Administrator depending upon the type and scale of the project. These may include, but are not limited to, queue length analysis, pedestrian counts, accident data, traffic speeds (both 50th and 80th percentile), and stopping distances.
H. Future without development. Capacity analysis should be based on the Highway Capacity Manual or other methodology approved in advance by the UDO Administrator. In addition, the expected traffic growth over the next 20 years based upon the developments currently approved by the county and all adjoining jurisdictions shall also be considered.
I. Future with development.
1. Projections of peak hour traffic generation shall be made using the latest edition of the Institute of Transportation Engineers (ITE) Trip Generation Manual, unless the UDO Administrator determines that locally derived data will provide more accurate forecasts. Data from similar facilities may be used where the information is not available from the ITE.
2. Special analysis shall be required to determine the need for signalization, minimum safe sight distances, gap analysis, turning radius requirements, queue length analysis, turning lane length analysis, curb cut locations, or similar requirements.
4.11.4 Mitigation plan. Where the analysis indicates that the project will create deficiencies in the impact area, improvements shall be recommended along with projected cost estimates. The design of improvements shall be in accordance with the state’s Department of Transportation. Where a mitigation plan is not adequate to address the traffic impacts of the project, it shall serve as a basis for denial of a planned unit development, preliminary plat, site plan, or special use permit.
4.11.5 Consultants. The UDO Administrator may require that an independent consultant be hired by the town to perform the required studies or to review all or part of a study prepared by the applicant’s consultant. The UDO Administrator is authorized to administer the contract for any such consultant.
A. The town shall determine the scope of services to be performed by the independent consultant and receive a cost estimate of such services.
B. The applicant shall provide an amount equal to the estimate to the town, who shall deposit the amount in an escrow or other special account set up for this purpose. Any funds not used shall be returned to the applicant in a timely manner, without interest.
C. The town shall require additional funds for independent review where a decision-making body expands the scope of the required review; the applicant substantially amends the application; additional meetings involving the consultant are requested by the applicant; or the consultant’s appearance is requested at public or affected agency meetings beyond those anticipated in the original scope of services.
4.11.6 Period of validity. A transportation impact analysis shall be valid for a specific site for no more than three years, so long as no significant modifications to the development approved for the site are made.
(Ord. passed 2-3-2021)
Other permits or certificates beyond those included in this Article may be required. Consult with the UDO Administrator. Any development approval issued in accordance with this UDO shall be in writing. The town may issue development approvals in print or electronic form. Any development approval issued exclusively in electronic form shall be protected from further editing once issued. Applications for development approvals may be made by the landowner, a lessee, or person holding an option or contract to purchase or lease land, or an authorized agent of the landowner. An easement holder may also apply for development approval for such development as is authorized by the easement. Unless provided otherwise by law, all rights, privileges, benefits, burdens, and obligations created by development approvals made pursuant to this UDO attach to and run with the land.
4.12.1 Zoning permit.
A. Applicability.
1. No excavation shall be commenced; no wall, structure, premises, or land used, building or part thereof shall be built, constructed or altered; nor shall any building be moved; nor shall any sign be erected or structurally altered (unless exempted), until application has been made and the proper permit has been obtained. When the UDO Administrator, with the technical assistance of other town departments or consultant, has determined that the proposed land use may be permitted under the provisions of this ordinance, a permit for the proposed use shall be issued. In the event of an appeal of a negative decision by the UDO Administrator, the Board of Adjustment may direct issuance of the zoning permit, but only after overturning the UDO Administrator’s decision to deny the zoning permit.
2. It shall be unlawful to change the type of use of land, or to change the type of use or type of occupancy of any building, or to extend any use or any lot on which there is a nonconforming use until the UDO Administrator has issued a zoning permit for such intended use, including a determination that the proposed use, in all respects, conforms to the provisions of this ordinance.
3. Exemption. The UDO Administrator may, upon proof of approval by a legally constituted HOA, POA, or similar entity, waive the zoning permit requirement for enclosing an existing structure attached to an existing single-family or duplex dwelling for the purpose of extending the established residential use (e.g. enclosing a sunroom to allow for climate control).
B. Timing of application. In all cases where a building permit is required, application to and approval from the town for a zoning permit shall be made prior to the application to the county for a building permit. In all other cases, application shall be made before initiating any of the activities that trigger compliance with this Article.
C. Application requirements. All applications for a zoning permit shall be submitted in accordance with Article 4.1.3 (Application Requirements).
D. Action by UDO Administrator.
1. If the proposed excavation, construction, moving, alteration, or use of land, as set forth in an application for a zoning permit, is in conformity with the provisions of this ordinance, the UDO Administrator shall issue a zoning permit, provided that all of the following conditions shall apply:
a. Issuance of a zoning permit shall in no case be construed as waiving any provisions of this ordinance;
b. The UDO Administrator shall not grant any exceptions to the actual meaning of any clause, standard, or regulation contained in this ordinance to any person making application to excavate, construct, move, alter, or use buildings, structures, or land;
c. The UDO Administrator shall issue a permit when the imposed conditions of this ordinance are complied with by the applicant regardless of whether the use of the permit would violate contractual or other arrangements (including, but not by way of limitation, restrictive covenants) among private parties; and
d. The zoning permit shall include a determination that plans, specifications, and the intended use of such structure and land do, in all respects, conform to the provisions of this ordinance. Prior to the issuance of a zoning permit, the UDO Administrator shall consult with other applicable persons, as necessary.
2. If the proposed excavation, construction, moving, alteration, or use of land, as set forth in an application for a zoning permit, is not in conformity with the provisions of this ordinance, the UDO Administrator shall not issue a zoning permit. If an application for a zoning permit is disapproved, the UDO Administrator shall state in writing the cause of such disapproval and provide written notice to the applicant.
E. Expiration. Once a zoning permit has been issued, all activities pursuant to such permit shall be commenced within 12 months. If the proposed excavation, construction, moving, alteration, or use of land, as set forth in an application for a zoning permit, is discontinued for a period of six months or more, the zoning permit shall lapse and be of no further force and effect.
F. Appeal. Final action on a zoning permit may be appealed to the Board of Adjustment in accordance with Article 4.10 (Appeal of Administrative Decision).
4.12.2 (Final) certificate of occupancy/compliance. No certificate of occupancy or compliance shall be issued by the Brunswick County (the county) Building Inspector until:
A. The UDO Administrator certifies that all applicable standards of this ordinance have been met; and
B. No building, structure, or lot for which a zoning permit has been issued shall be used or occupied until Building Inspections has, after final inspection, recommended the issuance of a certificate of occupancy indicating compliance has been made with all provisions of this ordinance. However, the issuance of a certificate of occupancy shall in no case be construed as waiving any provisions of this ordinance.
4.12.3. Temporary use permit. See Article 14.
4.12.4. Sign permit. See Article 11.
4.12.5. Stormwater permit. (Reserved)
(Ord. passed 2-3-2021; Ord. passed 4-6-2022)
North Carolina G.S. § 160D-107 explicitly recognizes the authority of cities/towns to adopt temporary moratoria. The duration of any moratorium shall be reasonable in light of the specific conditions that warrant imposition of the moratorium and may not exceed the period of time necessary to correct, modify, or resolve such conditions. Except in cases of imminent and substantial threat to public health or safety, before adopting an ordinance imposing a development moratorium with a duration of 60 days or any shorter period, the Town Council shall hold a public hearing and shall publish a notice of the hearing in a newspaper having general circulation in the area not less than seven days before the date set for the hearing. A development moratorium with a duration of 61 days or longer, and any extension of a moratorium so that the total duration is 61 days or longer, is subject to the notice and hearing requirements of G.S. § 160D-601. Absent an imminent threat to public health or safety, a development moratorium adopted pursuant to this section shall not apply to any project for which a valid building permit issued pursuant to G.S. § 160D-1110 is outstanding, to any project for which a conditional special use permit application has been accepted, to development set forth in a site-specific or multi-phased development approved pursuant to G.S. §§ 160D-108 or 160D-108.1. to development for which substantial expenditures have already been made in good faith reliance on a prior valid administrative or quasi-judicial permit or approval, or to preliminary or final subdivision plats that have been accepted for review by the town prior to the call for public hearing to adopt the moratorium. Any preliminary subdivision plat accepted for review by the town prior to the call for public hearing, if subsequently approved, shall be allowed to proceed to final plat approval without being subject to the moratorium.
Any ordinance establishing a development moratorium must expressly include at the time of adoption each of the following:
4.13.1 A clear statement of the problems or conditions necessitating the moratorium and what courses of action, alternative to a moratorium, were considered by the town and why those alternative courses of action were not deemed adequate;
4.13.2 A clear statement of the development approvals subject to the moratorium and how a moratorium on those approvals will address the problems or conditions leading to imposition of the moratorium;
4.13.3 An express date for termination of the moratorium and a statement setting forth why that duration is reasonably necessary to address the problems or conditions leading to imposition of the moratorium; and
4.13.4 A clear statement of the actions, and the schedule for those actions, proposed to be taken by the town during the duration of the moratorium to address the problems or conditions leading to imposition of the moratorium.
No moratorium may be subsequently renewed or extended for any additional period unless the town shall have taken all reasonable and feasible steps proposed to be taken by the town in its ordinance establishing the moratorium to address the problems or conditions leading to imposition of the moratorium and unless new facts and conditions warrant an extension. Any ordinance renewing or extending a development moratorium must expressly include, at the time of adoption, the findings set forth in Article 4.13.1 through Article 4.13.4 of this ordinance, including what new facts or conditions warrant the extension.
Any person aggrieved by the imposition of a moratorium on development approvals required by law may apply to the appropriate division of the General Court of Justice for an order enjoining the enforcement of the moratorium, and the court shall have jurisdiction to issue that order. In any such action, the town shall have the burden of showing compliance with the procedural requirements of this subsection.
(Ord. passed 2-3-2021)
Loading...