Zoning "vested rights" as established under G.S. §§ 160D-102, 160D-108, and 160D-108.1 ensure that a properly issued development approval will protect the applicant against zoning changes that will affect the allowable type and intensity of use.
(A) Process to claim vested right. A person claiming a statutory or common law vested right may submit information to substantiate that claim to the Zoning Administrator. The Zoning Administrator shall determine if a vested right exists. The Zoning Administrator’s determination may be appealed to the Board of Adjustment. On appeal the existence of a vested right shall be reviewed de novo. In lieu of seeking such a determination, a person claiming a vested right may take an original civil action appeal to the Surry County Superior Court.
(B) Duration and types of statutory vested rights.
(1) Six months - building permits. Pursuant to G.S. § 160D-1111, a building permit expires six months after issuance unless work under the permit has commenced. If after commencement the work is discontinued for a period of 12 months, the permit shall immediately expire. No work authorized by any building permit that has expired shall thereafter be performed until a new permit has been secured.
(2) One year - other development approvals. Pursuant to G.S. § 160D-403(c), unless otherwise specified by statute or local ordinance, all other development approvals expire one year after issuance unless work has substantially commenced. Expiration of a development approval shall not affect the duration of a vested right established under this section or vested rights established under common law.
(3) Two years - site-specific vesting plans. A site-specific vesting plan shall be vested for two years after it is approved. Amendments shall not extend the vesting period unless specified at the time of approval.
(4) Seven years - multi-phase developments. A multi-phase development approved containing 25 acres or more and subject to a master development plan with committed elements including a requirement to offer land for public use as a condition of its master development plan approval.
(5) Exceptions. A vested right, once established as provided for by this section, precludes any zoning action by the county that would change, alter, impair, prevent, diminish, or otherwise delay the development or use of the property as set forth in an approved vested right, except those explicitly outlined in G.S. § 160D-108(f).
(C) Effect of approval.
(1) A vested right shall confer upon the landowner the right to undertake and complete the development and use of said property under the terms and conditions of the site-specific vesting plan as provided for in this chapter. Failure to abide by the terms and conditions placed upon such approval will result in the forfeiture of the vested right previously accorded.
(2) A vested right, once established as herein provided, shall preclude any zoning action by the county which would change, alter, impair, prevent, diminish, or otherwise delay the development or use of the property as set forth in the approved site-specific development except under the following conditions:
(a) The affected landowner provides written consent to the county of his or her desire to terminate the vested right; or
(b) The county determines, after having advertised and held a public hearing, that natural or man-made hazards exist on or in the immediate vicinity of the property which pose a serious threat to the public health, safety, and welfare if the project were to proceed as indicated in the sitespecific vesting plan; or
(c) Compensation is made by the county to the landowner for all costs, expenses, and other losses incurred including, but not limited to, all fees paid in consideration of financing, and all architectural, planning, marketing, legal, and any other consultant's fees incurred after approval together with interest thereon at the legal rate until paid; or
(d) The county determines, after having advertised and held a public hearing, that the landowner or his representative intentionally supplied inaccurate information or made material misrepresentations which made a difference in the approval by the county of the site-specific vesting plan; or
(e) Upon the enactment or promulgation of a state or federal law or regulations which precludes development as contemplated in the site specific vesting plan. In such case the county may (after having advertised and conducted a public hearing) modify the affected provisions upon a finding that the change in state or federal law has a fundamental effect on the plan.
(3) Once a vested right is granted to a particular site-specific vesting plan, nothing in this chapter shall preclude the county from conducting subsequent reviews and approvals to ensure compliance with the terms and conditions of the original approval, provided such reviews and approvals are not inconsistent with the original approval.
(D) Extension. The Board of Commissioners may extend the vested rights period from two to five years if it determines the extension is warranted considering all relevant circumstances including but, not limited to the size and phasing of the development, the level of investment, the need for development, economic cycles, and market conditions. If the landowner requests, the county may conduct a public hearing to extend a vesting period not to exceed five years from the date of approval. The vesting of any site plan beyond a two year period shall only be authorized by the county.
(E) Required public notice of hearing.
(1) Notice shall be mailed to the person or entity whose application, or request is the subject of the hearing; to the owner of the property that is the subject of the hearing if the owner did not initiate the hearing; and to the owners of all parcels of land abutting the parcel of land that is the subject of the hearing. In the absence of evidence to the contrary, the local government may rely on the county tax listing to determine owners of property entitled to mailed notice. The notice must be deposited in the mail at least ten days, but not more than 25 days, prior to the date of the hearing.
(2) Within that same period, the local government shall also prominently post a notice of the hearing on the site that is the subject of the hearing or on an adjacent street or highway right-of-way.
(F) Expiration, limitations, and revocation.
(1) The vested right resulting from the approval of a site-specific vesting plan may be revoked by the county. In addition, a revocation may occur if the county determines that the landowner has failed to comply with the terms and conditions of the approval or with any other applicable portion of this chapter. The vested right shall otherwise expire at the end of the approval period established by the county.
(2) A valid development approval shall not expire if work on the project has substantially commenced within the initial validity period. Substantial commencement of work shall be determined by the Zoning Administrator based on any of the following:
(a) The development has received and maintained a valid erosion and sedimentation control permit and conducted grading activity on a continuous basis and not discontinued it for more than 30 days;
(b) The development has installed substantial on-site infrastructure; or
(c) The development has received and maintained a valid building permit for the construction and approval of a building foundation.
(3) Even if work has substantially commenced, a development approval still expires if development work is intentionally and voluntarily discontinued for a period of not less than 24 consecutive months, as calculated and tolled pursuant to G.S. § 160D-108.
(4) A building permit issued by Surry County pursuant to G.S. §§ 160D-403 and 160D-1110 may not be revoked because of the running of time on a piece of property for which a site-specific vesting plan has been approved and the vested right period has not otherwise expired.
(5) The establishment of a vested right on a piece of property for a site-specific vesting plan shall not preclude the county from establishing and enforcing on the property any additional regulations (adopted during the time the vested right was in effect) which are general in nature and applicable to all property subject to the regulations of this chapter.
(6) Revocation of any site-specific vesting plan designation eliminates the vested right established by approval of the site-specific vesting plan designation but does not itself terminate any unexpired development permit or approval associated with the plan.
(G) Permit choice. If an application for development approval has been made and after the date of that application, a development regulation changes or is proposed, the development permit applicant may choose the version of the regulation existing at the time of the application. The applicant may choose the existing regulation without waiting for final action on the proposed regulation change.
(Ord. passed 9-17-2001; Ord. passed 3-17-2003; Ord. passed 5-5-2003; Ord. passed 5-29-2003; Ord. passed 12-1-2003; Ord. passed 5-17-2004; Ord. passed 8-16-2004; Ord. passed 2-21-2005; Ord. passed 4-18-2005; Ord. passed 1-17-2006; Ord. passed 4-17-2023)