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.
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)