(A) Purpose. As provided for under G.S. § 160D-804(g), a performance guarantee in accordance with the standards of this section shall be furnished to the county prior to engineering plan approval in the following circumstances:
(1) To ensure completion of public infrastructure improvements (e.g. streets, alleys, bike lanes, curb and gutter, sidewalks, bike paths, crosswalks, traffic signs and controls, street lights, fire lanes, bus shelters, and greenway paths) that are required as part of engineering plan approval; and
(2) To ensure completion of required plantings of replacement trees, buffer screening, and landscaping.
(B) Term of performance guarantee. The term of a performance guarantee shall reflect any time limit for completing installation of required improvements that is included in the engineering plan approval in a condition deemed acceptable by the Zoning Administrator. In any case the term shall not exceed three years. The Zoning Administrator may, for good cause shown and with approval of the provider of the guarantee, grant extensions of the term for up to a total extended period of two years.
(C) Form of performance guarantee.
(1) Where required, the owner or developer shall furnish a performance guarantee in any of the following forms with terms and conditions acceptable by the County Attorney:
(a) Surety bond issued by any company authorized to do business in this state;
(b) Letter of credit issued by any financial institution licensed to do business in this state; or
(c) Other form of guarantee that provides equivalent security to a surety bond or letter of credit.
(2) The performance guarantee shall be conditioned on the performance of all work necessary to complete the installation of the required improvements within the term of the performance guarantees shall provide that in case of the owner's or developer's failure to complete the guaranteed improvements, the town shall be able to immediately obtain the funds necessary to complete installation of the improvements.
(D) Amount of performance guarantee.
(1) Performance guarantees for required improvements shall be in an amount equal to 125% of the estimated full cost of completing the installation of the required improvements within the term of the guarantee, including the costs of engineering, labor, materials, and project management.
(2) Estimated costs for completing installation of required public infrastructure improvements shall be itemized by improvement type and certified by the owner's or developer's licensed professional engineer, and subject to approval by the Zoning Administrator.
(3) Estimated costs for completing installation of replacement trees, buffer screening, and landscaping shall be itemized and certified by the owner's or developer's register landscape architect or licensed professional engineer and are subject to approval by the Zoning Administrator.
(4) If the guarantee is renewed, the Zoning Administrator may require the amount of the guarantee be updated to reflect cost increases overtime.
(5) The amount of the performance guarantee may be waived or reduced by the Town Council where the improvements are being installed with federal funds or in other circumstances where similar third-party assurances of their completion.
(E) Release or reduction of performance guarantees.
(1) Requirements for release or reduction. The Zoning Administrator shall release or reduce a performance guarantee only after:
(a) The owner or developer has submitted to the Zoning Administrator an application for a release or reduction of the performance guarantee that includes certification by the owner's or developer's engineer or landscape architect, as appropriate, that installation of the guaranteed improvements has been completed in accordance with approved plans and specifications;
(b) The Zoning Administrator has performed a final inspection of the improvements for which a release or reduction is requested and certified in writing that installation of the guaranteed improvements has been completed in accordance with approved plans and specifications;
(c) The owner or developer has reimbursed the county for all costs associated with conducting an inspection that finds the guaranteed improvements for which a release or reduction is requested have not been installed in accordance with approved plans and specifications;
(d) The owner or developer has provided the Zoning Administrator assurances that liens against guaranteed public infrastructure improvements will not be filed after their acceptance by the county (e.g., through affidavits, releases, as waivers of liens from all contractors and subcontractors); and
(e) The owner or developer has provided the Zoning Administrator any required maintenance guarantee for the same improvements.
(2) Limits on reductions.
(a) No performance guarantee for public infrastructure improvements shall be reduced to less than 30% of the full amount of the performance guarantee until all guaranteed public infrastructure improvements have been completed by the owner or developer.
(b) No performance guarantee for required site improvements such as replacement trees, buffer screening, and landscaping shall be reduced to less than 75% of the full amount of the performance guarantee until all guaranteed site improvements have been completed by the owner or developer.
(F) Default and forfeiture of performance guarantee.
(1) Notice of failure to install or complete improvements. If the owner or developer fails to complete installation of the guaranteed improvements within the term of the performance guarantee (as may be extended), the Zoning Administrator shall give the owner or developer 30 day written notice of default by certified mail.
(2) County completion of improvements. After the 30-day notice period expires, the county may:
(a) Issue a stop work order; and/or
(b) Draw on the security and use the funds to perform work necessary to complete the installation of the guaranteed improvements. After completing such work, the county shall provide a complete accounting of the expenditures to the owner or developer and, as applicable, refund all unused security deposited without interest.
(G) Penalty.
(1) As provided for under G.S. § 160D-803(d), from the effective date of this chapter that is adopted by the county, no subdivision plat of land within the county's jurisdiction shall be filed or recorded until it has been submitted to and approved by the appropriate board, administrator, or agency, as specified in this chapter, and until this approval is entered in writing on the face of the plat by an authorized representative of the county.
(2) The Review Officer, pursuant to G.S. § 160D-803(d), shall not certify a plat of a subdivision of land located within the territorial jurisdiction of the County of Surry that has not been approved in accordance with these provisions, and the Clerk of Superior Court may not order or direct the recording of a plat if the recording would conflict with this section.
(3) If a person who is the owner or agent of the owner of any land within the territorial jurisdiction of Surry County subdivides their land in violation of this subchapter 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 this subchapter and recorded in the office of the Register of Deeds, this person shall be guilty of a violation these requirements and subject to civil penalties. 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.
(4) The county may bring an action for injunction of any illegal subdivision, transfer, conveyance or sale of land, and the court shall, upon appropriate findings, issue an injunction and order requiring the offending party to comply with this subchapter. Building permits required pursuant to G.S. § 160D-1110 shall be denied for lots that have been illegally subdivided. In addition to other remedies, the county may institute any appropriate action or proceedings to prevent the unlawful subdivision of land, to restrain, correct or abate the violation, or to prevent any illegal act or conduct.
(5) Additionally, violation of this subchapter subjects offenders to a civil penalty that may be enforced through the issuance of citations by the Surry County Local Ordinance Officer. The county may recover this penalty in a civil action in the nature of a debt if the offender does not pay the penalty within 72 hours after being cited for a violation.
(6) The following civil penalties are established for violations under this section:
(a) Warning citation: correct violation within ten days;
(b) First citation: $25;
(c) Second citation for same offense: $50; and
(d) Third and sequential citations for same offense: $50.
(7) All monetary civil penalties must be paid to the Surry County Development Services Department through the Subdivision Administrator and forwarded to the Surry County Finance Department.
(Ord. passed 4-17-2023)