(A) Purpose. Conditional zoning districts (CD) are zoning districts in which the development and use of the property is subject to predetermined ordinance standards and the rules, regulations, and conditions imposed as part of the legislative decision creating the district and applying it to the particular property. A conditional zoning district allows particular uses to be established only in accordance with specific standards and conditions pertaining to each individual development project. Some land uses are of such a nature or scale that they have significant impacts on both the immediately surrounding area and on the entire community, which cannot be predetermined and controlled by conventional district standards. There are also circumstances in which a conventional district designation allowing such a use by right would not be appropriate for a particular property even though the use itself could, if properly planned, be appropriate for the property consistent with the objectives of these regulations and the adopted Comprehensive Land Use Plan.
In addition, conditional zoning districts are intended only for firm development proposals and should not be used for tentative projects without definitive plans. The review process established in this section provides for the accommodation of such uses by a classification or reclassification of property into a conditional zoning district, subject to specific conditions, which ensure compatibility of the use with the use and enjoyment of neighboring properties.
(B) Conditional districts established.
(1) A parallel conditional zoning district is a conditional zoning district in which the potential permitted use or uses are, except as limited by the conditions imposed on the district, of the same character or type as the use or uses permitted in a conventional district having a parallel designation or name. The following parallel zoning district categories are conditional zoning districts:
C-l CD Commercial
IG CD Institutional & Government
OA CD Open Area
R-25 CD Residential
R-30 CD Residential
R-35 CD Residential
(2) The Patio Home Residential Conditional District (Patio Home RCD) does not have a corresponding conventional district. The R-35 CT does not have a corresponding conventional district.
(C) Procedure.
(1) A zoning or rezoning to a CD shall be initiated only by an application signed by all the owners of the property or by an agent which has written authorization from all of the owners to file such application.
(2) The applicant shall submit an application for a CD along with a site plan that shall specify the use or uses that are intended for the property, as well as any additional conditions on the use of the property that the applicant proposes. The Village Council may waive the site plan requirement at the time of rezoning provided a site plan is approved by the Village Council prior to the issuance of any construction approvals.
(3) All applications for CDs shall be submitted at least two weeks prior to the date of the next regularly scheduled meeting of the Planning Board to facilitate a review and recommendation by village staff. A public hearing on the application will be held at the next meeting of the Village Council in the month after the consideration of the application by the Planning Board unless the Planning Board recommends an earlier date for the public hearing.
(D) Consultation before formal application. To minimize development and planning costs, avoid misunderstanding or misinterpretation and ensure compliance with the requirements of this chapter, pre-application consultation between the developer and the Zoning Enforcement Officer (ZEO) may be required as provided by this section. The applicant is encouraged to arrange a pre-application consultation at least ten days prior to the application deadline. The ZEO shall meet with the developer as soon as possible to review the conditional district application. Before submitting an application for any other permit, developers are strongly encouraged to consult with the ZEO concerning the application of this section to the proposed development.
(E) (1) Review of conditional district rezoning requests. Conditional zoning district decisions are a legislative process subject to judicial review using the same procedures and standard of review as apply to conventional zoning map amendments as specified in § 94.07, including a review and recommendation by the Planning Board and a legislative hearing and decision by the Village Council. The Village Council may consider a development agreement pursuant to G.S. Chapter 160D, Article 10 in conjunction with a conditional zoning that incorporates the development agreement.
(2) In approving an application to classify or to reclassify property to a conditional zoning district, and with the consent of the petitioner, the Village Council may change the existing classification of the property, or any part of the property covered by the petition, to the classification requested, to a classification or classifications between the existing and requested classifications, or to any higher classification in the hierarchy of zoning districts established in this section. This action may occur without the withdrawal or modification of the petition or further public hearings.
(3) In approving a petition for the classification or reclassification of property to a conditional zoning district, the Planning Board may recommend, and the Village Council require, that conditions be attached to approval of the petition. Conditions may address the conformance of the development and use of the site to village ordinances, plans adopted pursuant to G.S. § 160D-501, or the impacts reasonably expected to be generated by the development or use of the site. Only those conditions approved by the village and consented to by the applicant and the property owners in writing may be incorporated into the zoning regulations. Any such conditions should relate to the relationship of the proposed use to surrounding property, proposed support facilities such as parking areas and driveways, pedestrian and vehicular circulation systems, screening and buffer area, the timing of development, street and right-of-way improvements, water and sewer improvements, stormwater drainage, the provision of open space, building design elements and other matters that the Village Council may find appropriate or the petitioner may propose. Such conditions to approval of the petition may include dedication to the village, county or state, as appropriate, of any right-of-way or easements for streets, water, sewer, or other public utilities necessary to serve the proposed development.
(F) Approval criteria. In deciding whether to approve a Conditional District rezoning, the Planning Board and the Village Council shall consider the following factors:
(1) The proposed rezoning corrects an error or meets the challenge of some changing condition, trend or fact;
(2) The proposed rezoning is compatible with the Village of Walnut Creek Comprehensive Plan;
(3) The proposed rezoning and the range of uses permitted in the requested zoning district are compatible with the surrounding zoning patterns and land uses;
(4) The village or other service providers will be able to provide adequate public facilities and services intended to serve the subject property, including but not limited to roadways, public transportation, parks and recreational facilities, police and fire protection, schools, stormwater drainage systems, water supplies, and wastewater treatment and garbage services;
(5) The proposed classification or reclassification will not adversely affect a known archaeological, environmental, historical, or cultural resource; and
(6) The proposed zoning or rezoning will not impair or injure the health, safety and general welfare of the public.
(G) Village Council action on conditional districts.
(1) After reviewing the reports and recommendation of village staff and Planning Board and considering the views discussed at the public hearing, the Village Council shall take one of the following actions within 90 days of the public hearing:
(a) Approve the CD; or
(b) Approve the CD, but to a more restrictive district (see below);
(c) Approve the CD, but with an alteration in the area requested;
(d) Approve the CD, with a combination of divisions (G)(1)(b) and (G)(1)(c) above;
(e) Reject the proposed CD; or
(f) Refer the proposed CD back to the Planning Board and ZEO for further consideration.
(H) Effect of approval.
(1) If a petition for conditional zoning is approved, the development and use of the property shall be governed by the ordinance requirements of the parallel zoning district except those superseded by specific conditions, the approved site plan for the district, and any additional approved rules, regulations, and conditions, all of which shall constitute the zoning regulations for the approved district and are binding on the property as an amendment to these regulations and to the zoning maps.
(2) If a petition is approved, the petitioner shall comply with all requirements for obtaining, a zoning permit, a building permit and certificate of occupancy. Only those uses and structures indicated in the approved petition and site plan shall be allowed on the subject property. A change of location of the structures may be authorized pursuant to division (J) (Alterations to approval). The changes to the site plan layout shall not increase the number of structures.
(3) Following the approval of the petition for a conditional zoning district, the subject property shall be identified on the zoning maps by the appropriate district designation. A parallel conditional zoning shall be identified by the same designation as the underlying general district followed by the letters "CD" (for example "R-35 CD").
(4) Properties that receive Conditional District approval shall commence construction within two years of rezoning to a Conditional District. If the project has not substantially commenced, as defined in § 94.04, within two years of rezoning, then the Planning Board shall evaluate whether to recommend to the Village Council the rezone of the property back to its previous zoning designation, or to some alternative designation based on changing conditions in the community, using the zoning map amendment process in § 94.07.
(I) Rehearing. No application, connected to the same property or any part thereof, for a zoning or rezoning to a CD shall be filed for a period of six months unless the Village Council finds that there has been a substantial change in the application or the conditions or circumstances bearing on the application.
(J) Alterations to approval.
(1) Except as provided in division (J)(2) below, changes to an approved petition or to the conditions attached to the approved petition shall be treated the same as amendments to these regulations or to the zoning maps and shall be processed in accordance with the procedures in this chapter.
(2) The ZEO shall have the delegated authority to approve an administrative amendment change to an approved site plan, as long as the proposed revision meets all of the following:
(a) Does not involve a change in uses permitted or the density of overall development permitted;
(b) Does not increase the impacts generated by the development on traffic, stormwater runoff, or similar impacts beyond what was projected for the original development approval;
(c) Complies with underlying zoning standards, applicable conditions of the approval, and all other applicable ordinance requirements; and
(d) Is a minor change such as, but not limited to, a minor adjustment to road configuration or internal circulation, a minor adjustment to building location, or a minor adjustment to utility alignment.
Any proposed revision that does not meet all of these requirements must go back through the regular conditional zoning review and approval process specified in § 94.68. Any decision must be in writing stating the grounds for approval or denial.
(3) Any request for an administrative amendment shall be pursuant to a written letter, signed by the property owner, to the ZEO detailing the requested change. Upon request, the applicant must provide any additional information that is requested. Accompanying the letter shall be the applicable fee for administrative review. Upon an approval of an administrative amendment, the applicant must file a sufficient number of copies of a revised site plan as deemed necessary by the ZEO.
(4) If the ZEO denies approval of the requested amendment, then the applicant can appeal that decision to the Village Council for its review and decision. An appeal to Council will require filing a revised application and site plan, submittal of the required filing fee, and another public hearing and recommendation of the Planning Board. Any change that increases the intensity of the development or the residential density shall be approved by the Village Council after a new public hearing and recommendation of the Planning Board.
(K) Judicial review.
(1) Every decision of the Village Council granting, denying or revoking a conditional district rezoning shall be subject to review by the Superior Court of Wayne County by proceedings in the nature of certiorari.
(2) The petition for the writ of certiorari must be filed with the Wayne County Clerk of Court within 30 days after the following occurs:
(a) A written copy of the Council's decision has been filed in the office of the Village Clerk; and
(b) A written copy of the Council's decision has been delivered by personal service or certified mail, return receipt requested, to the applicant or appellant and every other aggrieved party who has filed a written request for such copy at the hearing of the case.
(3) A copy of the writ of certiorari shall be served upon the Village of Walnut Creek.
(Ord., passed 2-22-79; Am. Ord., passed 2-9-20; Am. Ord., passed 6-23-21)