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A. Purpose and Intent. The purpose for this interpretation procedure is to provide a process where an applicant may request documentation from the Planning Director regarding the meaning of language in this Ordinance, unlisted use types, boundaries on the Official Zoning Map, or conditions applied to an approval.
B. Applicability. The Planning Director is responsible for written interpretations of the following:
1. The meaning of the text in this Ordinance;
2. The location and extent of zoning district boundaries on the Official Zoning Map, including boundaries associated with the Flood Hazard Overlay (FHO) district;
3. Interpretations of whether an unlisted use is comparable to a use listed in Table 4.2.3, Principal Use Table;
4. Definitions of undefined terms;
5. Compliance with conditions of approval; and
6. Other aspects of this Ordinance.
C. Interpretations Distinguished.
1. Only interpretations issued in accordance with this procedure are subject to appeal as an administrative decision.
2. Any written or oral interpretations that do not meet the strict requirements of this section are advisory interpretations.
3. Advisory interpretations have no binding effect and are not considered administrative decisions subject to appeal.
D. Interpretation Procedure. The interpretation procedure is described in Figure 2.2.13, Interpretation Procedure, as supplemented by Section 2.3, Application Processing, and the Procedures Manual.
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E. Interpretation Review Standards.
1. Official Zoning Map Boundaries. Interpretation of district boundaries on the Official Zoning Map shall be in accordance with the standards in Section 3.2.3, Interpretation of Official Zoning Map Boundaries, and consistent with the Town's adopted policy guidance.
2. Unlisted Uses. Interpretation of whether an unlisted use is similar to a use identified in Table 4.2.3, Principal Use Table, shall be based on consistency with the Town's adopted policy guidance and the following standards:
a. The function, product, or physical characteristics of the use;
b. The impact on adjacent lands created by the use;
c. The type, size, and nature of buildings and structures associated with the use;
d. The type of sales (retail, wholesale), and the size and type of items sold and displayed on the premises;
e. The types of items stored (such as vehicles, inventory, merchandise, chemicals, construction materials, scrap and junk, and raw materials including liquids and powders);
f. The volume and type of vehicle traffic generated by the use, and the parking demands of the use;
g. Any processing associated with the use, including assembly, manufacturing, warehousing, shipping, distribution, and whether it occurs inside or outside a building;
h. Any dangerous, hazardous, toxic, or explosive materials associated with the use;
i. The amount and nature of any nuisances generated on the premises, including noise, smoke, odor, glare, vibration, radiation, and fumes; and
j. Any prior applicable interpretations made by the Planning Director or decisions made by the BOA.
3. Undefined Term. If a term in this Ordinance is undefined or the meaning is unclear, the Planning Director may interpret the term based upon appropriate definitions in any of the following sources:
a. Planning-related definitions in publications prepared or offered by the American Planning Association or the Urban Land Institute;
b. The Oxford Dictionary of Construction, Surveying, and Civil Engineering;
c. The North Carolina General Statutes;
d. The North Carolina Administrative Code;
e. The State Building Code(s);
f. Black's Law Dictionary; or
g. Other professionally-accepted source.
4. Text Provisions and Prior Approvals. Interpretation of this text and approved applications shall be based on the standards in Section 9.1, Rules of Language Construction, and the following considerations:
a. When the legislative intent of a provision is unclear, the Planning Director shall consider the clear and plain meaning of the provision's wording, as defined by the meaning and significance given specific terms used in the provision, as established in Section 9.4, Definitions, and by the common and accepted usage of the term;
b. The intended purpose of the provision, as indicated by purpose statements, its context and consistency with surrounding and related provisions, and any legislative history related to its adoption;
c. The general purposes served by this Ordinance, as set forth in Section 1.4, Purpose and Intent; and
d. Consistency with the Town's adopted policy guidance.
5. Effect.
a. General.
i. A written interpretation shall be binding on subsequent decisions by the Planning Director or other administrative officials in applying the same provision of this Ordinance or the Official Zoning Map in the same circumstance, unless the interpretation is modified in accordance with this section, the interpretation is later determined to have been made in error, or the text of this Ordinance is amended.
ii. The Planning Director shall maintain a record of written interpretations that shall be available in the Planning Department for public inspection, on reasonable request, during normal business hours.
b. Approval of Unlisted Use.
i. After the Planning Director determines the use category or use type in which the unlisted use is best classified, then the unlisted use shall be subject to all applicable requirements of that use category or use type.
ii. After making an interpretation of an unlisted use, the Planning Director shall determine whether the unlisted use is likely to be common or recur frequently, and whether its omission is likely to lead to uncertainty and confusion. On determining that the unlisted use is likely to be common and would lead to confusion if unlisted, the Planning Director shall initiate an application for an amendment to the text of this Ordinance. Until final action is taken on the text amendment, the Planning Director's decision shall be binding.
iii. If after making an interpretation of an unlisted use, the Planning Director determines that the unlisted use is of an unusual or transitory nature, and unlikely to recur frequently, the determination shall be binding without further action or amendment of this Ordinance.
6. Appeal. Appeal of an interpretation by the Planning Director shall be reviewed and decided by the BOA in the nature of certiorari and in accordance with Section 2.2.3, Appeal.
(Ord. 2020-36, passed 12-2-2019)
A. Purpose and Intent. The purpose for the Non-Residential Site Plan procedure is to establish a consistent and predictable process for the review of proposed non-residential development, through a graphical representation of the proposal. Non-Residential Site Plan review is an analysis to ensure that allowable development is configured in accordance with the standards in this Ordinance, not a consideration of whether or not a proposed development is allowed.
B. Applicability.
1. Except for development exempted from Non-Residential Site Plan review in accordance with Section 2.2.9.C, Exemptions, all forms of commercial development that involve construction, moving, or significant alteration of a building or habitable structure, that result in the increase in the amount of impervious surface on a lot, or that involve the provision of landscaping, off-street parking, stormwater management devices, or similar site features shall be subject to Commercial Site Plan review in accordance with this section.
2. Changes in use that trigger requirements for sidewalk provision or changes to roadway configuration shall also require site plan approval.
C. Exemptions. The following forms of development are exempted from site plan review, but shall require a plot plan and shall be subject to the standards in Section 2.2.4, Building Permit, or Section 2.2.24, Zoning Compliance Permit, as appropriate:
1. Construction of a single-family detached dwelling on an individual lot;
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2. Establishment of an accessory use or structure; and
3. Changes of use that do not result in the need for additional off-street parking spaces, additional screening, differing stormwater practices, or additional landscaping.
D. Non-Residential Site Plan Procedure. The site plan procedure is described in Figure 2.2.14, Site Plan Procedure, as supplemented by Section 2.3, Application Processing, and the Procedures Manual.
E. Application. The application shall include a transportation impact analysis for review, when required by Section 6.13, Transportation Impact Analysis.
F. Decision by Technical Review Committee. The Technical Review Committee shall review and decide the application in accordance with Section 2.2.14.G, Site Plan Review Standards.
G. Site Plan Review Standards. A site plan shall be approved on a decision the application complies with:
1. All standards or conditions of any prior applicable permits and development approvals;
2. All applicable requirements of this Ordinance and the Town Code of Ordinances; and
3. All applicable county, state, and federal requirements.
H. Effect.
1. Approval of a non-residential site plan authorizes the submittal of construction drawings. Construction drawings shall be required in cases where public infrastructure (e.g., streets, waterlines, sanitary, streets, waterlines, sanitary sewer, etc.) is extended to serve the development.
I. Amendment. Amendment of a site plan may only be reviewed and considered in accordance with the procedures and standards established for its original approval.
J. Expiration. If a construction drawing is not submitted within one year from the date of issuance, the approval shall become null and void.
K. Appeal. Appeal of the decision on a site plan shall be reviewed and decided by the BOA in the nature of certiorari and in accordance with Section 2.2.3, Appeal.
(Ord. 2024-10, passed 9-11-2023)
A. Purpose and Intent. The purpose for this planned development procedure is to provide a uniform means for amending the Official Zoning Map to establish a Planned Development (PD) zoning district. The planned development district creates opportunities for master planned development that is developed under unified control in accordance with more flexible standards and procedures that are conducive to creating high quality, mixed-use, pedestrian-oriented development that makes efficient use of land while protecting natural resources. It is the intent of these standards to allow an applicant to propose a wide variety of allowable uses and the flexible application of some of the development standards in Article 5: Development Standards, in return for a higher quality of development with more amenities than might otherwise result from a strict application of the standards in this Ordinance.
B. Applicability. The standards in this section may be applied to any land except land in the Residential Watershed (R1) district.
C. Planned Development Procedure. The planned development procedure is described in Figure 2.2.15, Planned Development Procedure, as supplemented by Section 2.3, Application Processing, and the Procedures Manual.
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D. Application.
1. The application shall include a master plan depicting the general configuration and relationship of the principal elements of the proposed development, including uses, general building types, density/intensity, resource protection, pedestrian and vehicular circulation, open space, public facilities, and phasing. The TRC shall review and comment on the master plan prior to the joint public hearing.
2. The application shall also include a statement of terms and conditions document that identifies how the proposed development will meet or exceed the standards in Section 3.5.5, Planned Development (PD) District, how any required environmental mitigation will take place, and outline how public facilities will be provided to serve the planned development.
3. To ensure unified control, the application shall also include a copy of the title to all land that is part of the proposed planned development zoning district classification.
4. The application shall include a transportation impact analysis for review, when required by Section 6.13, Transportation Impact Analysis.
E. Joint Public Hearing. Following provision of public notice for a public hearing in accordance with Section 2.3.6, Public Notice, the Planning Board and Board of Commissioners shall conduct a joint legislative public hearing on the planned development application.
F. Review by Planning Board.
1. The Planning Board, following the close of the joint public hearing, shall review the application and the information presented during the joint public hearing during a follow-up public meeting, shall make a recommendation on the planned development application in accordance with Section 2.2.15.H, Planned Development Review Standards.
2. In making its recommendation, the Planning Board shall prepare a written consistency statement including each of the following:
a. Whether the planned development application is recommended for approval, denial, or remanded to Town staff; and
b. The degree to which the planned development is or is not consistent with the Town's adopted policy guidance; and
c. The ways in which the planned development is or is not consistent with the Town's adopted policy guidance; and
d. Whether approval of the planned development amends or does not amend the Town's adopted policy guidance; and
e. If the adopted policy guidance is amended as part of the application approval, a description of the change in conditions to meet the development needs of the Town that were taken into account as part of the approval; and
f. An explanation of why the recommendation is reasonable; and
g. An explanation of why the recommendation is in the public interest.
3. During its review of a planned development application, the Planning Board may suggest revisions to the master plan or terms and conditions statement, consistent with the provisions of Section 2.2.15.I, Conditions of Approval. Only those revisions agreed to in writing by the applicant shall be incorporated into the application.
G. Review and Decision by Board of Commissioners.
1. The Board of Commissioners, after the conclusion of the joint public hearing conducted with the Planning Board, and receipt of a recommendation on the planned development application by the Planning Board, shall decide the application during a follow-up public meeting in accordance with Section 2.2.15.H, Planned Development Review Standards.
2. The decision shall be one of the following:
a. Approval of the planned development subject to the master plan and statement of terms and conditions in the application;
b. Approval of the planned development subject to additional or revised conditions related to the master plan or statement of terms and conditions;
c. Denial of the planned development; or
d. Remand of the planned development application back to the Planning Board for further consideration.
3. In making its decision, the Board of Commissioners shall adopt a written statement including each of the following:
a. Whether the planned development application (and associated zoning map amendment) is approved, denied, or remanded; and
b. The degree to which the planned development application (and associated zoning map amendment) is or is not consistent with the Town's adopted policy guidance; and
c. The ways in which the planned development application (and associated zoning map amendment) is or is not consistent with the Town's adopted policy guidance; and
d. Whether approval of the planned development application also amends or does not amend the Town's adopted policy guidance; and
e. If the adopted policy guidance is amended as part of the application approval, a description of the change in conditions to meet the development needs of the Town that were taken into account as part of the approval; and
f. An explanation of why the action taken by the Board of Commissioners is reasonable; and
g. An explanation of why the action taken by the Board of Commissioners is in the public interest.
H. Planned Development Review Standards. The advisability of amending the Official Zoning Map to establish a planned development district is a matter committed to the legislative discretion of the Board of Commissioners and is not controlled by any one factor. In determining whether to adopt or deny a planned development application, the Board of Commissioners may consider the standards in Section 2.2.25.J, Zoning Map Amendment Review Standards, and the standards for the district in Section 3.5.5, Planned Development (PD) District.
I. Conditions of Approval.
1. Only conditions mutually agreed to by the owner(s) of the property that is the subject of a planned development application and the Board of Commissioners may be approved as part of a planned development application establishing a planned development district.
2. Conditions shall be limited to those that address conformance of development and use of the site with Town regulations and adopted plans and that address the impacts reasonably expected to be generated by the development or use of the site.
3. Conditions shall be in writing and may be supplemented with text or plans and maps.
4. No condition shall be made part of the application which:
a. Specifies the ownership status, race, religion, or other characteristics of the occupants of housing units;
b. Establishes a minimum size of a dwelling unit;
c. Establishes a minimum value of buildings or improvements;
d. Excludes residents based upon race, religion, or income; or
e. Obligates the Town to perform in any manner relative to the approval of the planned development district or development of the land.
J. Designation on the Official Zoning Map. Designation of a PD zoning district on the Official Zoning Map shall note the ordinance number approving the PD zoning classification.
K. Effect.
1. Lands rezoned to a PD district shall be subject to the approved master plan and the approved statement of terms and conditions.
2. The master plan and terms and conditions are binding on the land as an amendment to the Official Zoning Map.
3. The applicant may apply for and obtain subsequent development permits and approvals necessary to implement the master plan in accordance with the appropriate procedures and standards set forth in this Ordinance.
4. Any permits or approvals shall comply with the master plan and the statement of terms and conditions.
5. Only those portions of the development subject to an approved master plan and statement of terms and conditions shall be included in development activities.
L. Amendment.
1. Minor Changes.
a. Subsequent plans and permits for development within a planned development district may include minor changes to the approved master plan map or statement of terms and conditions, provided the development continues to meet the minimum requirements of this Ordinance. Minor changes are limited to changes that have no material effect on the character of the planned development or changes that address technical considerations that could not reasonably be anticipated at the time of the planned development approval.
b. The following minor changes may be approved by the Planning Director, in consultation with other appropriate own staff:
i. Changes to the location of entrances or driveways, the rearrangement of internal streets, turn lanes, drives, or access restrictions;
ii. Changes to the configuration of parking areas, but not the number of parking spaces;
iii. Changes to the configuration or location of open space or placement of required amenities, provided the amount of open space (whether passive or active) is unchanged;
iv. Changes to the configuration of landscape yards, including types of materials, provided minimum width and planting requirements are met;
v. Changes to the proposed building elevation or facade, including materials, provided that the change retains the same general architectural character and remains consistent with the design parameters established in the PD approval; and
vi. Changes to the arrangement or location of buildings provided there is no increase in the number of buildings, size, or amount of impervious surface.
2. Significant Changes Considered Amendments.
a. Changes that materially affect the basic concept of the planned development master plan map or basic parameters establishing the terms and conditions or that exceed the scope of a minor change are considered amendments. Amendments include, but are not limited to:
i. Changes in use designations;
ii. Density/intensity increases;
iii. Decreases in open space;
iv. Substantial changes in the location of streets (particularly if streets are to be deleted or access points to the development moved so traffic flows both inside and outside the development are affected); and
v. Change in the location of any public easement.
b. Amendments shall be reviewed and considered in accordance with the procedures and standards established for the original approval of a planned development application.
M. Expiration.
1. If no application for approval of a preliminary plat or site plan for any part of the approved master plan is submitted within two years after approval of the planned development, the Town may initiate a zoning map amendment application to rezone the land back to its prior zoning classification or any other base zoning classification determined to be appropriate. Such time period shall not be extended with transfer of ownership.
2. Upon written request submitted at least 30 days before expiration of the two-year period provided in subsection (1) above, and upon a showing of good cause, the Planning Director may grant one extension not to exceed one year for the applicant to submit required development applications.
N. Appeal.
1. Appeal of a decision by the Board of Commissioners on a planned development shall be subject to review by the Superior Court of Wake County.
2. Petitions for review must be filed with the Clerk of Court within 30 days of the date the decision is filed in the office of the appropriate review authority and delivered by personal delivery, electronic mail, or first-class mail to the applicant, landowner, and to any person who has submitted a written request for a copy, prior to the date the decision becomes effective.
(Ord. 2020-36, passed 12-2-2019)
A. Purpose. This section provides a procedure for reasonable accommodation of eligible persons in cases where the strict application of the standards of this Ordinance would deprive them of their right to equal opportunity to use a dwelling under the federal Fair Housing Act.
B. Applicability.
1. For the purposes of this section, an eligible person is a person who meets the definition of a disabled or handicapped person under federal law.
2. A person recovering from substance abuse is considered a person with a disability or handicap provided they are not currently engaging in the illegal use of controlled substances.
C. Reasonable Accommodation Procedure. The reasonable accommodation procedure is described in Figure 2.2.16, Reasonable Accommodation Procedure, as supplemented by Section 2.3, Application Processing, and the Procedures Manual.
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D. Application.
1. An application for reasonable accommodation may be made by any of the following:
a. A person with a disability or handicap, or their legal representative; or
b. A provider of housing for persons with disabilities or handicaps.
2. An application for reasonable accommodation shall also include the following:
a. The basis for the claim that the applicant or persons receiving services from the applicant is considered disabled or handicapped under federal law;
b. The Ordinance provision from which the reasonable accommodation is being requested; and
c. An explanation of why the reasonable accommodation is necessary to make specific land or development available for the applicant.
E. Review and Decision by the Board of Adjustment.
1. The BOA, at the conclusion of a quasi-judicial public hearing, shall decide the application for the reasonable accommodation.
2. The decision shall be based on the competent, material, and substantial evidence, as supplemented by arguments presented at the quasi-judicial hearing, and the standards in Section 2.2.16.F, Reasonable Accommodation Review Standards.
3. The decision shall be one of the following:
a. Approval of the reasonable accommodation application as proposed;
b. Approval of the reasonable accommodation application with revisions; or
c. Denial of the application.
4. Each decision shall be made in writing and reflect the BOA's determination of contested facts and their application to the standards in this Ordinance.
5. The written decision shall be signed by the Chair or other duly authorized member of the BOA.
6. The decision of the BOA shall be effective upon the filing of the written decision in the offices of the Planning Department.
F. Reasonable Accommodation Review Standards.
1. A reasonable accommodation application shall be approved on a finding the proposed accommodation:
a. Will be used by an individual or individuals with a disability or handicap protected under federal law;
b. Is the minimum needed to provide accommodation; and
c. Is reasonable and necessary.
2. For the purposes of this section, an accommodation is reasonable if it would not undermine the legitimate purposes of this Ordinance, it does not constitute a substantial alteration of this Ordinance or other Town standard, and it will not impose significant financial and administrative burden upon the Town.
3. For the purposes of this section, an accommodation is necessary if it would provide direct or meaningful improvement of the effects of the particular disability or handicap, and would afford handicapped or disabled persons equal opportunity to use housing in the Town.
G. Effect. A reasonable accommodation shall not affect an applicant's obligation to comply with other applicable standards in this Ordinance that are not the subject of the reasonable accommodation application.
H. Amendment. Amendment of an application for reasonable accommodation may only be reviewed and considered in accordance with the procedures and standards established for its original approval.
I. Expiration. Approval of a reasonable accommodation shall describe the conditions or events that would terminate the reasonable accommodation or cause it to expire.
J. Appeal. Appeal of a decision on a reasonable accommodation request shall be reviewed and decided by the BOA in the nature of certiorari and in accordance with Section 2.2.3, Appeal.
(Ord. 2020-36, passed 12-2-2019)
A. Purpose and Intent. The purpose for this preliminary plan procedure is to establish a fair, consistent, and predictable procedure for the review of requests to divide land into a series of lots for development or sale in ways that promote the health, safety, and welfare of the citizens of the Town of Zebulon. The intent of these standards is to ensure:
1. Orderly growth and development;
2. Coordination of transportation and utility networks;
3. Preservation of open space for purposes of recreation or natural resource protection;
4. Protection from flooding, damaging sedimentation, and decreased surface water quality; and
5. Distribution of population in ways that supports infrastructure investment and diminishes the impact of traffic and overcrowding.
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B. Applicability. Divisions of land that do not qualify as an exempt subdivision (see Section 2.2.9. Exempt Subdivision), or an expedited subdivision (see Section 2.2.10, Expedited Subdivision), shall be reviewed and decided as a preliminary plat in accordance with these standards.
C. Preliminary Plan Review Procedure. The preliminary plan procedure is described in Figure 2.2.17, Preliminary Plan Review Procedure, as supplemented by Section 2.3, Application Processing, and the Procedures Manual.
D. Application. The application shall include a transportation impact analysis for review, when required by Section 6.13, Transportation Impact Analysis.
E. Review and Decision by the Technical Review Committee. The Technical Review Committee shall review and decide with Section 2.2.17.F, Preliminary Plan Review Standards.
F. Preliminary Plan Review Standards.
1. An application for a preliminary plan shall be approved, provided:
a. The preliminary plan is prepared and sealed by a licensed professional land surveyor, registered professional landscape architect, or licensed professional engineer;
b. The preliminary plan complies with the applicable standards in Section 47-30 of the North Carolina General Statutes;
c. The preliminary plan includes all applicable certifications identified in the Procedures Manual;
d. All lots have been certified by Wake County Environmental Resources as capable of accommodating the wastewater generated from the proposed use, in cases when the lot(s) is not served by a centralized wastewater system;
e. The preliminary plan is in substantial conformance with all applicable requirements in Article 3: Districts;
f. The preliminary plan complies with all standards and conditions of any applicable permits and development approvals;
g. The name of the subdivision shall not duplicate or be similar to the name of an existing subdivision in Wake County or the town; and
h. The preliminary plan complies with all other applicable requirements in this Ordinance and the County Code of Ordinances.
2. Preliminary plan containing parcels of land located within a special flood hazard area shall comply with the standards in Section 3.8.2, Flood Hazard Overlay (FHO) District, and any recorded plats shall include the following statement:
"Use of land within a floodplain or flood hazard overlay is substantially restricted by the Town of Zebulon."
G. Effect.
1. Approval of a preliminary plan authorizes the submittal of construction drawings, and/or a final plat. Construction drawings shall be required in cases where public infrastructure (e.g., streets, water lines, sanitary sewer, etc.) is being extended to serve lots in the development.
2. Approval of a preliminary plan shall not constitute the approval for recording a subdivision with the Wake County Register of Deeds, or approval for the conveyance of lots.
H. Amendment. Amendment of a preliminary plan approval may only be reviewed and considered in accordance with the procedures and standards established for its original approval.
I. Expiration. An approved preliminary plan shall be valid for two years from the date of approval.
2. Extension.
a. An applicant may request an extension of a preliminary plan approval in writing to the Planning Director at least 30 days prior to expiration.
b. Extension requests shall be reviewed and decided by the Technical Review Committee.
c. A preliminary plan may be extended once for a maximum duration of one year.
I. Appeal. Appeal of a decision on a preliminary plan shall be reviewed and decided by the BOA in the nature of certiorari and in accordance with Section 2.2.3, Appeal.
(Ord. 2024-10, passed 9-11-2023)
A. Purpose and Intent. The purpose of this section is to provide a uniform mechanism for reviewing applications for sign permits to ensure all signs comply with the standards of Section 5.11, Signage.
B. Applicability. All signs, including temporary signs, but excluding signs exempted from obtaining sign permits in Section 5.11, Signage, shall obtain a sign permit in accordance with this section before being erected, replaced, relocated, or altered.
C. Sign Permit Procedure. The sign permit procedure is described in Figure 2.2.18, Sign Permit Procedure, as supplemented by Section 2.3, Application Processing, and the Procedures Manual.
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D. Decision by Planning Director. The decision on a sign permit shall be made by the Planning Director in accordance with the standards in Section 2.2.18.E, Sign Permit Review Standards.
E. Sign Permit Review Standards. A sign permit shall be approved on a decision the application complies with:
1. The standards in Section 5.11, Signage;
2. The State Building Code(s);
3. All standards or conditions of any prior applicable permits and developments approvals; and
4. All other applicable requirements of this Ordinance and in the Town Code of Ordinances.
F. Amendment. Amendment of a sign permit may only be reviewed and considered in accordance with the procedures and standards established for its original approval.
G. Expiration. If the work authorized by a sign permit is not commenced within six months from the date of issuance, the permit shall become null and void.
H. Appeal. Appeal of the decision on a sign permit shall be reviewed and decided by the BOA in the nature of certiorari and in accordance with Section 2.2.3, Appeal.
(Ord. 2020-36, passed 12-2-2019)
A. Purpose and Intent. This section sets out the procedure for consideration of an application for a special use permit. A special use is a use that may be appropriate in a zoning district, but because of its nature, extent, and external effects, requires special consideration of its location, design, and methods of operation before it can be deemed appropriate in the district and compatible with its surroundings.
B. Applicability. Applications for uses identified as requiring a special use in Table 4.2.3, Principal Use Table, shall be reviewed in accordance with the procedures and standards of this section.
C. Special Use Permit Procedure. The Special Use Permit procedure is described in Figure 2.2.19, Special Use Permit Procedure, as supplemented by Section 2.3, Application Processing, and the Procedures Manual.
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D. Application.
1. An application for a special use permit shall include a site plan that depicts the proposed use and site configuration. The TRC shall review and comment on the site plan prior to consideration of the application by the Board of Commissioners.
2. The application shall include a transportation impact analysis for review, when required by Section 6.13, Transportation Impact Analysis.
E. Review and Decision by Board of Commissioners. Following the conclusion of a quasi-judicial public hearing, the Board of Commissioners shall review and decide the application in accordance with Section 2.2.19.F, Special Use Permit Review Standards. The decision shall be the one of the following:
1. Approval of the special use and concept plan as proposed;
2. Approval of a revised special use or concept plan;
3. Denial of the special use and concept plan; or
4. Remand of the special use application for further consideration.
F. Special Use Permit Review Standards. A special use shall be approved upon a determination that the special use:
1. Will not materially endanger the public health or safety if located where proposed;
2. Complies with all required standards, conditions, and specifications of this Ordinance, including Article 4: Uses;
3. Will not substantially injure the value of the abutting land, or the special use is a public necessity;
4. Will be in harmony with the area in which it is to be located;
5. Is in general conformity with the Town's adopted policy guidance; and
6. Includes a concept plan that accurately depicts the proposed use's configuration.
G. Conditions of Approval.
1. The Board of Commissioners may apply conditions of approval to assure that the use will be harmonious with the area where proposed and consistent with the purpose and intent of this Ordinance.
2. The Board of Commissioners may apply conditions limiting the permit to a specified duration or may place limits on the availability of proposed residential dwelling units to coincide with the provision or maintenance of adequate public facilities.
3. All conditions shall be identified in the approval, the notice of decision, and on the associated site plan.
H. Effect.
1. A special use approval is perpetually binding and run with the land, unless amended or limited in duration by the reviewing authority.
2. An action invalidating a special use condition of approval (such as an intensity or hours of operation limitation) shall render the special use permit null and void.
3. Special uses shall meet all applicable state and federal requirements for location and operation. Failure to maintain compliance with those requirements may result in the revocation of the special use.
I. Amendment. Amendments of a special use permit or an associated concept plan may only be reviewed and considered in accordance with the procedures and standards established for its original approval.
J. Expiration.
1. Replacement. If a special use is replaced by a use otherwise permitted by right in the zoning district, the special use permit approval is deemed abandoned and the special use permit approval is null and void.
2. Failure to Complete Construction. Unless otherwise stated in the special use permit approval, a special use permit shall expire and become null and void two years after the date of issuance if:
a. The authorized use has not commenced;
b. No substantial construction activity has taken place; or
c. Construction activities have started, but the value of all construction activity is less than five percent of the estimated total cost of construction.
3. Extension.
a. An applicant may request an extension of a special use permit approval in writing to the Planning Director at least 60 days prior to expiration.
b. Extension requests shall be reviewed and decided by the Board of Commissioners.
c. Up to one extension for a maximum period of one year may be granted if:
i. The applicant has proceeded towards completion of construction in good faith and with due diligence; and
ii. Conditions have not changed to the extent that a new application is warranted in the sole discretion of the Board of Commissioners.
K. Appeal.
1. A decision by the BOC on a special use permit shall be subject to review by the Superior Court of Wake County by proceedings in the nature of certiorari and in accordance with Section 160D-1402 of the North Carolina General Statutes.
2. Petitions for review must be filed with the Clerk of Court within 30 days of the date the decision is filed in the office of the appropriate review authority and delivered by personal delivery, electronic mail, or first-class mail to the applicant, landowner, and to any person who has submitted a written request for a copy, prior to the date the decision becomes effective.
(Ord. 2020-36, passed 12-2-2019 ; Ord. 2021-65, passed 5-3-2021)
A. Purpose and Intent. The purpose of this section is to establish a uniform mechanism for reviewing temporary uses, structures, and special events to ensure they comply with the standards in Section 4.5, Temporary Uses. Temporary uses include temporary structures and activities that are proposed on an individual lot or site for a limited duration and that have a clear commencement and cessation.
B. Applicability. The provisions of this section shall apply to all proposed temporary uses, temporary structures, and special events set forth in Section 4.5, Temporary Uses, but shall not be applied to applications for temporary signage, which are subject to the standards in Section 2.2.18, Sign Permit.
C. Temporary Use Permit Procedure. The Temporary Use Permit procedure is described in Figure 2.2.20, Temporary Use Permit Procedure, as supplemented by Section 2.3, Application Processing.
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D. Decision by Planning Director. The decision on a temporary use permit shall be made by the Planning Director in accordance with the standards in Section 2.2.20.E, Temporary Use Permit Review Standards.
E. Temporary Use Permit Review Standards. An application for a temporary use permit shall be approved provided it complies with the following:
1. The temporary use permit complies with all applicable requirements in Section 4.5, Temporary Uses;
2. The applicant has written permission from the landowner, or is otherwise authorized to make use of the land;
3. The applicant has obtained the appropriate permits and licenses from the Town and other agencies;
4. The temporary use meets public utility and Town requirements for proper connection to water, sewer, electrical and other utility service connections, as applicable;
5. The temporary use does not violate the applicable conditions of approval that apply to a site or use on the site;
6. The proposed site contains sufficient land area for the temporary use and for the parking and traffic movement associated with the temporary use, without impacting environmentally sensitive lands;
7. The temporary use is located outside the FHO district or a special flood hazard area; and
8. Includes a concept plan or plot plan that accurately depicts the proposed use's configuration.
F. Amendment. Amendment of a temporary use permit may only be reviewed and considered in accordance with the procedures and standards established for its original approval.
G. Expiration. Approval of a temporary use permit shall be effective beginning on the date of approval and shall remain effective for the period indicated in the permit.
H. Appeal. Appeal of the Planning Director's decision on a temporary use permit shall be reviewed and decided by the BOA in the nature of certiorari and in accordance with Section 2.2.3, Appeal.
(Ord. 2020-36, passed 12-2-2019)
A. Purpose and Intent. This section provides a uniform means for amending the text of this Ordinance whenever public necessity, changed conditions, convenience, general welfare, or appropriate land use practices justify or require doing so.
B. Applicability. The standards and requirements of this section shall apply to applications to revise the text of this Ordinance.
C. Text Amendment Procedure. The text amendment procedure is described in Figure 2.2.21, Text Amendment Procedure, as supplemented by Section 2.3, Application Processing, and the Procedures Manual.
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D. Joint Public Hearing. Following provision of public notice for a public hearing in accordance with Section 2.3.6, Public Notice, the Planning Board and Board of Commissioners shall conduct a legislative joint public hearing on the UDO text amendment application.
E. Review by Planning Board.
1. The Planning Board, following the close of the joint public hearing, shall review the application and the information presented during the joint public hearing during a follow-up public meeting, and shall make a recommendation on an application in accordance with Section 2.2.21.G, UDO Text Amendment Review Standards.
2. In making its recommendation, the Planning Board shall prepare a written consistency statement including each of the following:
a. Whether the text amendment application is recommended for approval, denial, or remanded to Town staff; and
b. The degree to which the text amendment is or is not consistent with the Town's adopted policy guidance; and
c. The ways in which the text amendment is or is not consistent with the Town's adopted policy guidance; and
d. Whether approval of the text amendment also amends or does not amend the Town's adopted policy guidance; and
e. If the adopted policy guidance is amended as part of the application approval, a description of the change in conditions to meet the development needs of the Town that were taken into account as part of the approval; and
f. An explanation of why the recommendation is reasonable; and
g. An explanation of why the recommendation is in the public interest.
F. Review and Decision by Board of Commissioners.
1. The Board of Commissioners, after the conclusion of the joint public hearing conducted with the Planning Board, and receipt of a recommendation on the UDO text amendment by the Planning Board, shall decide the application during a follow-up public meeting in accordance with Section 2.2.21.G, UDO Text Amendment Review Standards.
2. Nothing shall require the BOC to wait for or consider the recommendation of the Planning Board on the text amendment application.
3. The decision shall be one of the following:
a. Adoption of the text amendment as proposed;
b. Adoption of a revised text amendment;
c. Denial of the text amendment; or
d. Remand of the text amendment application to the Planning Board for further consideration.
4. In making its decision, the Board of Commissioners shall adopt a written statement including each of the following:
a. Whether the text amendment application is approved, denied, or remanded; and
b. The degree to which the text amendment application is or is not consistent with the Town's adopted policy guidance; and
c. The ways in which the text amendment application is or is not consistent with the Town's adopted policy guidance; and
d. Whether approval of the text amendment application also amends or does not amend the Town's adopted policy guidance; and
e. If the adopted policy guidance is amended as part of the application approval, a description of the change in conditions to meet the development needs of the Town that were taken into account as part of the approval; and
f. An explanation of why the action taken by the Board of Commissioners is reasonable; and
g. An explanation of why the action taken by the Board of Commissioners is in the public interest.
G. UDO Text Amendment Review Standards. The advisability of amending the text of this Ordinance is a matter committed to the legislative discretion of the Board of Commissioners and is not controlled by any one factor. In determining whether to adopt or deny the proposed text amendment, the Board of Commissioners may, but is not required to, consider whether and the extent to which the proposed text amendment:
1. Enhances the public's health, safety, and welfare;
2. Is consistent with the Town's adopted policy guidance;
3. Is not in conflict with any provision of this Ordinance or the Town Code of Ordinances;
4. Is required by changed conditions;
5. Addresses a demonstrated community need;
6. Addresses an unforeseen matter not present when the Ordinance was adopted;
7. Is consistent with the purpose and intent of the zoning districts in this Ordinance, or would improve compatibility among uses and ensure efficient development within the Town;
8. Would result in a logical and orderly development pattern;
9. Addresses other factors determined to be relevant by the Board of Commissioners; and
10. Would not result in significantly adverse impacts on the natural environment, including water, air, noise, stormwater management, wildlife, vegetation, and the natural functioning of the environment.
H. Amendment. Amendment of the decision on a UDO text amendment may only be reviewed and considered in accordance with the procedures and standards established for its original approval.
I. Expiration. UDO text amendments shall not expire.
J. Appeal.
1. A decision by the BOC shall be subject to review by the Wake County Superior Court.
2. Petitions for review must be filed with the Clerk of Court within 30 days of the date the decision is filed in the office of the appropriate review authority and delivered by personal delivery, electronic mail, or first-class mail to the applicant, landowner, and to any person who has submitted a written request for a copy, prior to the date the decision becomes effective.
(Ord. 2020-36, passed 12-2-2019)
A. Purpose and Intent. The purpose of this section is to allow certain deviations from the dimensional standards of this Ordinance (such as height, yard setback, lot coverage, or similar numerical standards) when the landowner demonstrates that, owing to special circumstances or conditions beyond the landowner's control (such as topographical conditions, narrowness, shallowness, or shape of a specific parcel of land), a literal application of the standards would result in undue and unique hardship to the landowner and the deviation would not be contrary to the public interest. This section also includes standards for variance from the Town's special flood hazard area standards in Section 3.8.2, Flood Hazard Overlay (FHO) District, as well as the procedures and standards for variances from the watershed protection standards included in Section 3.3.2, Residential Watershed (R1) District.
B. Applicability.
1. Development that would otherwise be subject to undue and unique hardship from the applications of the standards in this Ordinance may seek relief from the standards in accordance with this section.
2. No variance may be sought that increases development density (e.g., units per acre) beyond that allowed in a base zoning district, or that would permit a use not allowed in a zoning district.
C. Variance Procedure. The variance procedure is described in Figure 2.2.22, Variance Procedure, as supplemented by Section 2.3, Application Processing, and the Procedures Manual.
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D. Board of Adjustment Review and Decision.
1. The BOA, after the conclusion of a quasi-judicial public hearing, shall decide the application for a variance.
2. The decision shall be based on the evidence in the record, as supplemented by the arguments presented at the quasi-judicial hearing, and the standards in Section 2.2.22.G, Variance Review Standards.
3. The decision shall be one of the following:
a. Approval of the variance as proposed;
b. Approval of the variance with revisions; or
c. Denial of the variance.
4. The concurring vote of four-fifths of the BOA shall be necessary to grant a variance.
5. Each decision shall be made in writing and reflect the BOA's determination of facts and their application to the standards in this Ordinance.
6. The written decision shall be signed by the Chair or other duly authorized member of the BOA.
7. The decision of the BOA shall be effective upon the filing of the written decision.
E. Notification of Decision. The decision of the BOA shall be delivered by personal service, electronic mail, or by first-class mail to the applicant, the landowner, and to any person who has submitted a written request for a copy prior to the date the decision becomes effective. The person providing notification of decision shall certify that proper notification has been made.
F. Recordation. If a variance application is approved, the notice of decision may be recorded by the applicant in the office of the Wake County Register of Deeds.
G. Variance Review Standards. The standards in this section are organized into the standards applicable to variances from the zoning-related provisions, the flood hazard overlay provisions, and the watershed protection provisions.
1. Zoning-Related Variance Standards.
a. Required Findings of Fact. A zoning variance shall be approved on a finding the applicant demonstrates all of the following:
i. Unnecessary hardship would result from the strict application of the Ordinance. It shall not be necessary to demonstrate that, in the absence of the variance, no reasonable use can be made of the property.
ii. The hardship results from conditions that are peculiar to the property, such as location, size or topography. Hardships resulting from personal circumstances, as well as hardships resulting from conditions that are common to the neighborhood or the general public, may not be the basis for granting a variance.
iii. The hardship did not result from actions taken by the applicant or the property owner. The act of purchasing property with knowledge that circumstances exist that may justify the granting of the variance shall not be regarded as a self-created hardship.
iv. The requested variance is consistent with the spirit, purpose, and intent of the ordinance, such that public safety is secured, and substantial justice is achieved.
b. Other Considerations. In addition to the making the required findings in subsection (a) above, the BOA may also consider the following:
i. The variance approval is the minimum necessary to make possible the reasonable use of the land, building, or structure.
ii. All property taxes on the land subject to the variance application have been paid in full.
iii. None of the following may be used as the basis for approving a variance:
1. Neither the nonconforming use of lands, buildings, or structures in the same zoning district, or the permitted use of lands, buildings, or structures in other zoning districts, or personal circumstances;
2. A request for a particular use that is expressly, or by inference, prohibited in the zoning district;
3. Hardships resulting from factors other than application of the relevant standards of this ordinance;
4. The fact that land or a structure may be utilized more profitably or be more marketable with a variance;
5. The citing of other conforming or nonconforming uses of land or structures in the same or other zoning districts; or
6. Financial hardship.
2. Flood Hazard Overlay Variance Standards. In addition to the standards for a zoning variance, variances from the flood hazard overlay standards in this Ordinance shall be reviewed and decided in accordance with the standards in Section 3.8.2, Flood Hazard Overlay (FHO) District, and the following:
a. Required Findings of Fact. A variance from the flood hazard area standards shall be approved on a finding the applicant demonstrates all of the following standards are met:
i. There is a good and sufficient cause to grant the variance;
ii. The variance is the minimum necessary to provide relief;
iii. Failure to grant the variance would result in exceptional hardship to the landowner; and
iv. Granting the variance will not result in increased flood heights, additional threats to public safety, extraordinary public expense, create nuisance, cause fraud on or victimization of the public, or conflict with this Ordinance.
b. Other Considerations. In addition to making the required findings in subsection (a) above, the BOA may also consider the following:
i. Approval of the variance will not render the building in violation of applicable federal, state, or local requirements;
ii. Approval of the variance will not result in any increase in flood levels within any designated floodway or non-encroachment area during the base flood discharge;
iii. The variance is issued prior to any other prerequisite permit or development approvals;
c. Historic Sites or Structures. Reconstruction or rehabilitation of structures listed on the National Register of Historic Places or the State Inventory of Historic Places may occur in a flood hazard area without need for obtaining a variance in accordance with this subsection.
d. Required Findings for Denial. All of the following factors shall be considered by the BOA if an application for a variance to the flood hazard area standards is denied:
1. The danger that materials may be swept onto other lands and injure others;
2. The danger to life and land due to flooding or erosion damage;
3. The susceptibility of the proposed facility and its contents to flood damage and the effect of such damage on the individual landowner;
4. The importance of the services provided by the proposed facility to the community;
5. The necessity to the facility of a waterfront location as a functionally-dependent facility;
6. The availability of alternative locations, not subject to flooding or erosion damage, for the proposed use;
7. The compatibility of the proposed use with existing and anticipated development;
8. The relationship of the proposed use to the town's adopted policy guidance and the town's floodplain management program;
9. The safety of access to the use in times of flood for ordinary emergency vehicles;
10. The expected height, velocity, duration, rate of rise, and sediment transport of the floodwaters and the effects of wave action, if applicable, expected at the site; and
11. The costs of providing governmental services during and after flood conditions including maintenance and repair of public utilities and facilities such as sewer, gas, electrical and water systems, and streets and bridges.
3. Watershed Protection Variance Standards.
a. Variances Distinguished.
i. Variances from the water supply watershed standards in Section 3.3.2, Residential Watershed (R1) District, in the shall take the form of a minor variance or a major variance.
ii. Major variances pertain to any of the following:
1. The relaxation, by a factor greater that 10 percent, of any management requirement under the low density option;
2. The relaxation, by a factor greater than five percent, of any buffer, density or built upon area requirement under the high density option; or
3. Any variation in the design, maintenance or operation requirements of a wet detention pond or other approved stormwater management system.
iii. Minor variances pertain to a relaxation, by a factor of up to ten percent of any buffer, density, or built-upon area requirement under the low density option.
b. Required Findings of Fact. Before the Watershed Review Board may grant a variance, it shall make the following three findings, which shall be recorded in the permanent record of the case, and shall include the factual reasons on which they are based:
i. There are practical difficulties or unnecessary hardships in the way of carrying out the strict letter of the ordinance. In order to determine that there are practical difficulties or unnecessary hardships, the Board must find that the five following conditions exist:
1. In complying with the provisions of this Ordinance, the applicant can secure no reasonable return from, nor make reasonable use of, their property. Merely proving that the variance would permit a greater profit to be made from the property will not be considered adequate to justify the granting of a minor variance. Moreover, the BOA shall consider whether the variance is the minimum possible deviation from the terms of this Ordinance that will make possible the reasonable use of the property;
2. The hardship results from the application of the ordinance to the property rather than from other factors such as deed restrictions or other hardship;
3. The hardship is due to the physical nature of the applicant's property, such as size, shape or topography, which is different from that of neighboring property;
4. The hardship is not the result of the actions of an applicant who knowingly or unknowingly violates the ordinance, or who purchases the property after the effective date of the ordinance and then comes to the Board for relief; and
5. The hardship is peculiar to the applicant's property, rather than the result of conditions that are widespread. If other properties are equally subject to the hardship created in the restriction, then granting a variance would be special privilege denied to others, and would not promote equal justice.
ii. The variance is in harmony with the general purpose and intent of this Ordinance and preserves its spirit.
iii. In the granting of the variance, the public safety and welfare have been assured and substantial justice has been done. The BOA shall not grant a variance if it finds that doing so would in any respect impair the public health, safety, or general welfare.
c. Conditions of Approval.
i. In granting a variance approval, the BOA may attach conditions regarding the location, character, and other features of the proposed building, structure, or use as it may deem advisable.
ii. If a variance for the construction, alteration, or use of property is granted, the construction, alteration or use shall be in accordance with the approved site plan.
d. Prior Denial. The BOA shall refuse to hear an appeal or an application for a variance previously denied if it finds that there have been no substantial changes in conditions or circumstances bearing on the appeal or application.
e. Expiration. A variance issued in accordance with this section shall be considered a watershed protection permit and shall expire if a building permit or watershed occupancy permit for the use is not obtained by the applicant within six months from the date of the decision.
f. Additional Provisions for Major Variances.
i. Generally. If the application calls for the granting of a major variance, and if the BOA decides in favor of granting the variance, the BOA shall prepare a preliminary record of the hearing with all deliberate speed. The preliminary record of the hearing shall include the following:
1. The variance application;
2. The hearing notices;
3. The evidence presented;
4. Motions, offers of proof, objections to evidence and rulings on them;
5. Proposed findings and exceptions; and
6. The proposed decision, including all conditions proposed to be added to the permit.
ii. Action by the Environmental Management Commission. The preliminary record shall be sent to the Environmental Management Commission for its review as follows:
1. If the Commission concludes from the preliminary record that the variance qualifies as a major variance and that the property owner can secure no reasonable return from, nor make any practical use of the property unless the proposed variance is granted, and the variance, if granted, will not result in a serious threat to the water supply, then the Commission shall approve the variance as proposed or approve the proposed variance with conditions and stipulations.
2. The Commission shall prepare a decision and send it to the BOA. If the Commission approves the variance as proposed, the BOA shall prepare a final decision granting the proposed variance.
3. If the Commission approves the variance with conditions and stipulations, the BOA shall prepare a final decision, including those conditions and stipulations, granting the proposed variance.
4. If the Commission concludes from a preliminary record that the variance qualifies as a major variance and that the property owner can secure a reasonable return from or make a practical use of the property without the variance or the variance, if granted, will result in a serious threat to the water supply, then the Commission shall deny approval of the variance as proposed.
5. The Commission shall prepare a decision and send it to the BOA.
6. The BOA shall prepare a final decision denying the variance as proposed.
H. Insufficient Grounds for Approving Variances. The following factors shall not constitute sufficient grounds for approval of any variance:
1. A request for a particular use that is expressly, or by inference, prohibited in the zoning district;
2. Hardships resulting from factors other than application of requirements of this Ordinance;
3. The fact that land or a structure may be utilized more profitably or be more marketable with a variance; or
4. The citing of other nonconforming or conforming uses of land or structures in the same or other zoning districts.
I. Conditions of Approval. In granting a variance, the BOA may prescribe conditions of approval to ensure compliance with the standards of this section, and to assure that the use of the land to which the variance applies will be compatible with surrounding lands and will not alter the essential character of the neighborhood.
1. A variance granted subject to a condition of approval shall be permitted as long as there is compliance with the condition.
2. Violation of a condition of approval shall be deemed a violation of this Ordinance.
3. If a violation or invalidation of a condition of approval occurs, the Planning Director may revoke the authorization for the development subject to the variance.
J. Effect.
1. General. Approval of a variance authorizes only the particular regulatory relief approved by the BOA. It does not exempt the applicant from the responsibility to obtain all other permits or development approvals required by this Ordinance or any other applicable laws, and does not indicate that the development for which the variance is granted should receive other permits or development approvals under this Ordinance unless the relevant and applicable portions of this Ordinance are met.
2. Notification Regarding Flood Insurance Costs.
a. An applicant for whom a flood hazard area variance is approved shall be provided written notice by the Planning Director specifying the difference between the base flood elevation (BFE) and the elevation to which the structure is built. The notice shall inform the applicant about the risks to life and property from construction below the BFE and that issuance of a variance to construct a structure below the BFE will result in increased premium rates for flood insurance.
b. The notification shall be maintained by the Planning Director with the record of the variance action.
3. Records. Upon request, the Planning Director shall report all flood-related variances approved in accordance with this section to the Federal Emergency Management Agency and the State of North Carolina.
K. Amendment. Amendment of a variance may only be reviewed and considered in accordance with the procedures and standards established for its original approval.
L. Expiration.
1. If the BOA does not include a time period by which development subject to variance expires, development shall commence within 12 months of the date of issuance of the variance or the variance shall expire and become null and void.
2. A variance shall expire and become invalid if the property owner changes development on the site such that the extraordinary and exceptional conditions that warranted the hardship and variance no longer do so.
M. Appeal.
1. Any decision by the BOA shall be subject to review by the Superior Court of Wake County by proceedings in the nature of certiorari and in accordance with Section 160D-1402 of the North Carolina General Statutes.
2. Petitions for review must be filed with the Clerk of Court within 30 days of the date the decision is filed in the office of the appropriate review authority and delivered by personal delivery, electronic mail, or first-class mail to the applicant, landowner, and to any person who has submitted a written request for a copy, prior to the date the decision becomes effective.
(Ord. 2020-36, passed 12-2-2019; Ord. 2021-65, passed 5-3-2021)
A. Purpose and Intent. The purpose for this section is to establish a clear procedure for an applicant to request vesting or protection from changes in this Ordinance that take place after approval of the application but prior to completion of an approved site-specific development plan.
B. Applicability.
1. A vested right may be established, in accordance with Section 160D-108 of the North Carolina General Statutes, and this section.
2. A vested rights determination shall be limited to development included in a site specific development plan. For the purposes of this section, a site specific development plan shall be limited to any one of the following development approvals:
a. Special use permits;
b. Preliminary plats;
c. Planned developments; or
d. Site plans.
3. An application for a vested rights determination shall be processed concurrently or after the approval of a special use permit, preliminary plat, planned development, or site plan.
C. Vested Rights Determination Procedure. The vested rights procedure is described in Figure 2.2.23, Vested Rights Determination Procedure, as supplemented by Section 2.3, Application Processing, and the Procedures Manual.
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D. Board of Commissioners Review and Decision.
1. The Board of Commissioners, after the conclusion of a legislative public hearing, shall decide the application in accordance with Section 2.2.23.E, Vested Rights Determination Review Standards.
2. The decision shall be one of the following:
a. Approval of the vested rights determination as proposed;
b. Approval of a revised vested rights determination; or
c. Denial of vested rights determination.
E. Vested Rights Determination Review Standards. A vested rights determination shall be approved if:
1. The vested rights determination is for an approved site-specific development plan;
2. The development is valid and unexpired; and
3. Any required variances have been obtained.
F. Effect.
1. A vested rights certificate shall be approved prior to issuance of a building permit.
2. Each document used to establish a site specific development plan shall bear the following notation: "Approval of this plan establishes a zoning vested right under Section 160D-108 of the North Carolina General Statutes. Unless terminated at an earlier date, the vested right shall be valid until _______(date)."
3. The establishment of a vested right shall not preclude the application of overlay zoning district provisions that impose additional requirements but do not affect the allowable type and intensity of use, or through ordinances that are general in nature and are applicable to all property subject to land use regulation by the Town, including building, fire, plumbing, electrical, and mechanical codes.
G. Amendment. Amendment of vested rights determination may only be reviewed and considered in accordance with the procedures and standards established for its original approval.
H. Expiration.
1. In no instance shall a vested right determination provide a vested right for a period of longer than five years from the date of approval.
2. A vested right determination shall expire and become null and void:
a. At the end of the applicable vesting period; or
b. If a building permit application for the development subject to the determination is not submitted within two years of the approval of the vested rights determination associated with a special use permit, preliminary plat, or site plan, or five years of the approval of a vested rights determination associated with a planned development; or
c. Upon a finding by the Board of Commissioners after notice and a public hearing, that:
i. Natural or man-made hazards on or in the immediate vicinity of the land, if uncorrected, would pose a serious threat to the public health, safety, and welfare if the project were to proceed as contemplated;
ii. The landowner or landowner's representative intentionally supplied inaccurate information or made material misrepresentations which affected the approval of the site specific development plan;
iii. The landowner failed to comply with any condition imposed upon the establishment of the site specific development plan or vested rights determination; or
d. Upon payment to the affected landowner of compensation for all costs, expenses, and other losses incurred by the landowner, including all fees paid in consideration of financing, and all architectural, planning, marketing, legal, and other consultant fees incurred after approval of the determination by the Town, together with interest at the legal rate until paid. Compensation shall not include any diminution in the value of the land which is caused by such action; or
e. With the written consent of the affected landowner.
3. Upon enactment or promulgation of a state or federal law or regulation that precludes development as contemplated in the site-specific development plan, the Board of Commissioners may modify the affected provisions of the determination by ordinance, if after conducting a hearing, it finds the changed conditions created by the change in the state or federal law have a fundamental effect on the site specific development plan.
I. Appeal.
1. A decision by the Board of Commissioners of a vested rights determination shall be subject to review by the Superior Court of Wake County.
2. Petitions for review must be filed with the Clerk of Court within 30 days of the date the decision is filed in the office of the appropriate review authority and delivered by personal delivery, electronic mail, or first-class mail to the applicant, landowner, and to any person who has submitted a written request for a copy, prior to the date the decision becomes effective.
(Ord. 2020-36, passed 12-2-2019; Ord. 2021-65, passed 5-3-2021)
A. Purpose and Intent. The purpose of a zoning compliance permit is to ensure no development occurs until there is assurance the development complies with the requirements of this Ordinance and all other applicable requirements.
B. Applicability. A zoning compliance permit is required for issuance of a building permit, any change in use, or commencement of activity that does not require issuance of a building permit. Nothing shall prevent a zoning compliance permit from being issued concurrently with a building permit.
C. Zoning Compliance Permit Procedure. The zoning compliance permit procedure is described in Figure 2.2.24, Zoning Compliance Permit Procedure, as supplemented by Section 2.3, Application Processing, and the Procedures Manual.
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D. Decision by Planning Director. The decision on a zoning compliance permit shall be made by the Planning Director in accordance with the standards in Section 2.2.24.E, Zoning Compliance Permit Review Standards.
E. Zoning Compliance Permit Review Standards. A zoning compliance permit shall be approved on a decision the application complies with:
1. All standards or conditions of any prior applicable permits and developments approvals;
2. Any applicable requirements of the Wake County Environmental Resources; and
3. All applicable requirements of this Ordinance and in the Town Code of Ordinances.
F. Effect.
1. Approval of a zoning compliance permit authorizes an applicant to apply for a building permit, commence construction, or proceed with the approved development in cases where a building permit is not required.
2. If the zoning compliance permit application is filed concurrently with a building permit application, approval of the zoning compliance permit authorizes the Town to complete its review of the building permit application.
G. Amendment. Amendment of a zoning compliance permit may only be reviewed and considered in accordance with the procedures and standards established for its original approval.
H. Expiration. A zoning compliance permit shall expire and become null and void one year after the date of issuance if the authorized use has not commenced.
I. Appeal. Appeal of the Planning Director's decision on a zoning compliance permit shall be reviewed and decided by the BOA in the nature of certiorari and in accordance with Section 2.2.3, Appeal.
(Ord. 2020-36, passed 12-2-2019)
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