This code is adopted by reference in appendix A of the Town of Black Mountain Code of Ordinances and shall be known as the Land Use Code for the Town of Black Mountain.

These regulations are adopted pursuant to the authority granted by Chapter 160D of the North Carolina General Statutes (NCGS). The provisions of this code shall be applicable to all property within the town limits.

A.

The purpose of this title [appendix] of the Black Mountain Code of Ordinances is to provide regulations for the subdivision of land and guidelines for its development, in order to protect and promote the health, safety and general welfare of the town in accordance with the General Statutes of the State of North Carolina and the Town of Black Mountain Code of Ordinances. It is also the intent of the Town of Black Mountain Town Council that this land use code implement the planning policies reflected in the town's adopted comprehensive plan and other current, adopted planning documents, and that these regulations be easy to understand and that all processes required be simple and efficient.

B.

These policies are intended to protect individual property values and development rights while:

1.

Maintaining the small town character and community identity of the town;

2.

Promoting social, cultural and economic diversity in our community;

3.

Promoting a vibrant downtown district that encourages small business development and preserves the historical integrity of the existing buildings;

4.

Providing a network of safe and convenient transportation options that accommodate freight, automobiles, transit vehicles, pedestrians and bicyclists;

5.

Preserving our natural resources, parks, open spaces, and view-sheds;

6.

Minimizing risk to property and water quality from flood damage and stormwater;

7.

Protecting environmental health and safety from natural and manmade disasters;

8.

Providing a variety of housing types for citizens of all income levels, ages and physical abilities; and

9.

Creating economic opportunities through organized development patterns that encourage investment and the redevelopment of blighted areas.

A.

Development regulations set forth herein shall be considered minimum regulations and shall apply uniformly to each class or kind of structure or land unless specifically otherwise provided.

B.

No person may use, occupy, or sell any land or buildings or authorize or permit the use, occupancy, or sale of land or buildings under his/her control except in accordance with all of the applicable provisions of this code.

C.

For purposes of this section, the "use" or "occupancy" of a building or land relates to anything and everything that is done to, on, or in that building or land.

The administration, enforcement, and amendment of this code shall be accomplished with consideration of recommendations presented in the town's comprehensive plan and other adopted planning documents, including but not limited to the town's capital improvement program, comprehensive pedestrian plan, greenways plan, the French Broad River MPO Comprehensive Transportation Plan, and other local and regional plans adopted or endorsed by the town council.

A.

When provisions of this code require a greater width or size of yards, a lower height of a building, or require a greater percentage of a lot to be left unoccupied, or impose other higher standards than are required in any other statute or local regulation, provisions of this code shall govern. When the provisions of any other statute or local regulation require a greater width or size of yards, a lower height of a building, or a greater percentage of a lot to be left unoccupied, or impose other higher standards than are required by the provisions made by this code, the provisions of that statute or regulation shall govern.

B.

To the extent that the provisions of this code are tied to specific zoning districts, the provisions will not supersede, repeal, or replace the existing regulations until such time as they are located and adopted as amendments to the zoning map. Existing zoning district regulations will remain as part of this code until such time as they are formally removed from, or replaced on the zoning map through the map revision process.

A.

It is not intended that this code repeal, abrogate, annul, impair, or interfere with any existing easements, valid covenants, deed restrictions, agreements, or vested rights which have been established pursuant to NCGS § 160D-108 and -108.1.

B.

It is not intended that this code repeal, abrogate, annul, impair, or interfere with any existing building permits previously adopted or issued pursuant to law and currently effective.

C.

Variances, appeals, conditional use and special use permits, subdivision plans, site plan approvals, and other similar development approvals that are valid before the effective date of this code will remain valid until their expiration date. Development may be completed in accordance with such approvals even if such building, development, or structure does not fully comply with provisions of this code. If building is not commenced and diligently pursued in the time allowed under the original approval or any extension granted, then the building, development or structure must meet the standards of these regulations in effect at the time of re-application.

D.

All suits at law or in equity and all prosecutions resulting from the violations of any development regulation heretofore in effect which are pending in any of the courts of North Carolina or of the United States, shall be prosecuted to their finality, unless the act or structure which failed to comply with the prior regulations being prosecuted is in compliance with these regulations.

If any section or specific provision of this code or any regulation or district boundary arising from it is found by a court to be invalid or unenforceable for any reason, the decision of the court shall not affect the validity or enforceability of any other section, provision, standard, or district boundary of these development regulations except the provision in question. The other portions of these development regulations not affected by the decision of the court shall remain in full force and effect.

Should any section or provision of this code be decided by a court of competent jurisdiction to be unconstitutional or invalid, such decision shall not affect the validity of the code as a whole or any part thereof other than the part so declared to be unconstitutional or invalid.

This code shall generally supersede, repeal, and replace the previous Town of Black Mountain Land Use Code, upon the effective date of July 1, 2021.

These development regulations are written to achieve the purposes for which they are adopted and in support of the town's comprehensive plan. Guidance for interpretation and definitions are included here for reference and apply to this Code in its entirety.

A.

Interpretations shall be guided by statements of intent or purpose within the context of the development regulations. In the event of any conflict in standards applying to a project, the standard more consistent with the comprehensive plan shall apply.

B.

All words used in this ordinance shall have their common, dictionary definition, unless specifically defined below or within the context of a specific chapter of the code.

C.

Interpretation of commonly used terms and words.

1.

Words used in the present tense shall include the future tense.

2.

Words used in the singular number shall include the plural and words used in the plural shall include the singular, unless the construction of the context indicates otherwise.

3.

The words "person" or "one" or "no one" includes an individual, partnership, firm, association, joint venture, public or private corporation, trust, estate, commission, board, public or private institution, utility, cooperative, interstate body, the State of North Carolina and its agents and political subdivisions, or other legal entity.

4.

The words "used for" shall include the meaning "designed for."

5.

The word "structure" shall include the word "building."

6.

The word "lot" shall include the words "plot," "parcel" or "tract" meaning a piece of land described in an instrument duly recorded in the office of the register of deeds.

7.

The word "boundary line" or "lot line" shall mean the legally established boundary of a lot, and will be considered coincident with any abutting public street right-of-way line unless the metes and bounds description in a recorded deed or plat clearly and specifically established the lot boundary at some other location.

8.

The words "shall," "must," and "will" are always mandatory, indicating a requirement to comply with the particular provision.

9.

The word "may" is permissive in nature except when used in the negative.

10.

The word "should," whether used in the positive or the negative, is a suggested guideline.

11.

References to "days" will always mean business days, excluding weekends and holidays, unless the context of the language clearly indicates otherwise.

D.

Whenever any provision of the development regulations refers to or cites a section of the North Carolina General Statutes and that section of the general statutes is later amended or superseded, the development regulations shall be deemed amended to refer to the amended section or the section that most nearly corresponds to the superseded section.

Abut: Having a common boundary or lot line not separated by a street, alley, railroad or other right-of-way (distinguished from adjacent which can include abutting property or those across a street).

Access management: Techniques for providing access to land in development while simultaneously preserving the flow of traffic on the surrounding road system in terms of safety, capacity and speed.

Accessory dwelling, accessory apartment, or secondary dwelling: A dwelling unit located on the same lot as a detached single-family house, such as garage apartments or "granny flats," but which is smaller in size than the principal structure (see also under dwelling and refer to guidelines for secondary dwellings, chapter 5).

Accessory structure: A structure detached from a principal building and located on the same lot and incidental and subordinate to the principal building or use which is not used as a dwelling unit.

Accessory use: A use of land or of a building or structure or portion thereof incidental and subordinate to the principal use of the land or building and located on the same lot with the principal use.

Acre: means 43,560 square feet.

Additional required protection features: Fire suppression equipment that is installed in a structure and designed to lessen the exposure to potential fire damage, such as automatic fire protection and alarm systems or other features that provide increased levels of fire protection.

Adjacent: Either abutting or being directly across a street.

Administrative decision: Decision made in the implementation, administration, or enforcement of development regulations that involves the determination of facts and the application of objective standards set forth in these development regulations. Also known as "ministerial".

Administrative hearing: A proceeding to gather facts needed to make an administrative decision.

Adult day care center: A day care program for adults operated in a structure other than a single-family dwelling.

Adult day care home: A day care program for up to 16 adults operated in a single-family dwelling.

Adult establishment: An adult bookstore, adult motion picture theatre, adult mini motion picture theatre, or adult live entertainment business as defined in N.C.G.S. § 14-202.10.

Affordable: A sales price or rent within the means of a low- or moderate-income household as defined by state or federal legislation within Buncombe County.

Agriculture: The science, art and business of cultivating the soil, producing crops and raising livestock, including the production, keeping or maintenance, for sale, lease or personal use, of plants and animals useful to man, including but not limited to: forages and sod crops; grains and seed crops; dairy animals and dairy products, poultry and poultry products; fisheries, trout farms, livestock, including beef cattle, sheep, swine, horses, ponies, mules, or goats or any mutations or hybrids thereof, including the breeding and grazing of any or all of such animals; bees and apiary products; fur animals; trees and forest products; fruits of all kinds, including grapes, nuts and berries; vegetables; nursery, floral, ornamental and greenhouse products; or lands devoted to a soil conservation program. See chapter 5.4. The term "agriculture" shall also include state NCGS definitions for "Bona fide farm" and:

Boarding stable: A structure designed for the feeding, housing, and exercising of horses not owned by the owner of the premises and for which the owner of the premises receives compensation.

Breeding farm: An agricultural establishment where animals are impregnated either naturally or by artificial insemination, and the principal purpose of which is to propagate the species.

Farm: A parcel of land used for agricultural activities.

Farm stand: A temporary or permanent structure established only for the display and direct sale of farm products and home-made crafts which is less than 150 square feet in total area including display tables. This term shall include the temporary use of a vehicle such as a pick-up truck for the display and sale of farm products.

Farm structures: Any building or structure used for agricultural purposes.

Feedlot: A confined area or structure, pen, or corral, used to hold and feed livestock.

Market gardening: Cultivating herbs, plants, fruits, flowers, vegetables and home-made crafts for sale through local markets, including by not limited to tailgate markets, farmers markets, florists and produce stands, or for sale to restaurants or other establishment which serve them to the public.

Nurseries: Land or structures used to raise flowers, shrubs, and plants for sale, including greenhouses.

Alley: A service roadway providing a secondary means of public access to abutting property and not intended for general traffic circulation.

Amusements: Establishments engaged in providing entertainment for a fee, including arcades, bowling alleys, billiard or pool halls, miniature golf and any coin-operated machines or devices whether mechanical or electronic for use as a game; entertainment or amusement.

Animal boarding or kennel services: A commercial establishment in which dogs or other domesticated animals are housed, groomed, bred, boarded, trained or sold, for a fee or compensation.

Animal grooming services: Establishments primarily engaged in providing grooming services to domesticated animals.

Animal hospital: Establishment of licensed veterinary practitioners primarily engaged in the practice of veterinary medicine, dentistry, or surgery for animals; and establishments primarily engaged in providing testing services for licensed veterinary practitioners.

Animal or veterinary clinic: A place where animals are given medical care and the boarding of animals is limited to short-term care incidental to the hospital use.

Apartment unit: One or more rooms with a private bath and kitchen facilities comprising an independent self-contained dwelling in a building containing three or more dwelling units.

Art studio: The workshop of an artist, sculptor, photographer or craftsperson.

Assisted living facility: A facility offering a combination of housing, supportive services, personalized assistance, and health care designed to respond to the individual needs of those who need help with activities of daily living.

Automobile parking: Parking of operational and street legal motor vehicles on a temporary basis within an offstreet parking area.

Automobile services or stations: Any building, garage, land area, or other premises or portion thereof, used for dispensing or selling vehicular fuels, or servicing and repair of automobiles. (also see "neighborhood fueling facility" which is distinct from this category). This term shall include:

Automobile wash, car wash or detail shop: Any building or premises or portions thereof used for cleaning, washing, and/or waxing automotive vehicles, such as passenger cars, trucks, and vans, and trailers.

Automobile body shop: Any premises which repairs, paints or works on the exterior of vehicles, including window repair and tinting.

Audio installation: Any premise which installs or repairs vehicle audio systems.

Automobile rentals: Establishments primarily engaged in renting passenger cars without drivers, generally for short periods of time.

Automobile sales: The use of any building, land area, or other premises for the display and sale of new or used automobiles, light trucks, vans, trailers, or recreational vehicles.

Automobile wrecking/salvage: An establishment that cuts up, compresses or otherwise disposes of motor vehicles.

Awning: A structure made of cloth, metal, or other material affixed to a building in such a manner that it shades windows or doors below, but is not a constructed canopy.

Bakery, retail: An establishment primarily engaged in the sale of bakery products. The products may be purchased from others or made on the premises.

Bakery, wholesale: Establishments primarily engaged in manufacturing fresh or frozen bread and bread-type rolls and fresh cakes, pies, pastries and other similar "perishable" bakery products for wholesale.

Bank: A freestanding building, with or without a drive-up window, for the custody, loan, or exchange of money; for the extension of credit; and for facilitating the transmission of funds.

Bar: Premises used primarily for the sale or dispensing of alcoholic beverages in accordance with state and local laws for on-site consumption and where food is not necessarily provided.

Barber/beauty services: An establishment primarily engaged in furnishing beauty or hairdressing services which will include those providing tanning services, facials, pedicures, and manicures.

Basement: A building story where the floor level is more than four feet on average below the finished grade.

Bed and breakfast home: A private, owner-occupied residence with one to four guest rooms where overnight accommodations and a morning meal are provided to transients for compensation, and where the bed and breakfast use is subordinate and incidental to the main residential use of the building. The homeowner shall reside on site and employment shall not exceed the equivalent of one full-time employee in addition to the owner..

Bed and breakfast inn: A private, owner-occupied business with five to 12 guest rooms where overnight accommodations and a morning meal are provided to transients for compensation and where the bed and breakfast inn is operated primarily as a business. The homeowner shall reside on site and employment shall not exceed the equivalent of three full-time employees in addition to the owner..

Bedroom: See sleeping room.

Boarding house or rooming house: A dwelling unit or part thereof in which, for compensation, lodging and meals are provided on a minimum of a weekly basis for at least three, but less than ten, unrelated individuals and where the owner or manager is a full-time resident of said establishment. Excludes hotels, motels, bed and breakfast homes and bed and breakfast inns.

Brewery: An establishment engaged in the production and distribution of beer and other fermented malt beverages. The establishment may include areas for demonstration, education, tasting and other uses permitted in the district, in accordance with state and local laws.

Brew pub restaurant: An establishment in which the beer, ale, porter and other fermented malt beverages are produced and sold onsite as part of a restaurant.

Broadcasting services: An establishment engaged in transmitting audio and visual programs to the public, and includes a studio, transmitter, or antennas.

Buffer: A strip of land. The term buffer may include natural or planted vegetation, the area located between a structure or use and a side or rear property line, or any area intended to spatially separate and visually obstruct the view of tow adjacent land uses or properties from one another, or any required screening, landscaping or stormwater that protect surface waters from runoff.

Buildable area: That portion of any lot which may be used or built upon in accordance with the regulations governing the zoning district within which the lot is located when the front, side, and rear yard requirements for the district and any open space requirements have been subtracted from the total area.

Building: A structure with a roof and walls built for permanent use. When used in reference to a residential structure, any one- or two-family dwelling or portion thereof, including townhouses, that is used, or designed or intended to be used for habitation for living, sleeping, cooking, or eating purposes or any combination thereof, including accessory structures.

Building, height of: The height of a building or structure as measured according to the guidelines of this code (see 4.5.2).

Building permit: Written permission issued by the building inspector for the construction, repair, alteration or addition to a structure.

Building materials sales: Establishments engaged in selling primarily lumber, or other general building materials, including, flooring, molding, doors, sashes, frames, roofing, siding, shingles, wallboard, paint, brick, tile, cement, sand, gravel, and other building hardware, materials and supplies.

Built-upon area (BUA): That portion of a development project that is covered by impervious or partially impervious surface including, but not limited to, buildings; pavement and gravel areas such as roads, parking lots, and paths; and recreation facilities such as tennis courts. "Built-upon area" does not include a wooden slatted deck, the water area of a swimming pool, or pervious or partially pervious paving material to the extent that the paving material absorbs water or allows water to infiltrate through the paving material.

Business service: Establishments primarily engaged in rendering services to business establishments on a fee or contract basis, such as advertising, mailing, copy and duplication services, building maintenance, employment services, management consulting services, protective services, equipment rental and leasing, commercial research, development and testing, and personal supply.

Camp, summer or seasonal: Establishments engaged in seasonal or overnight, recreational housing and conducting a variety of educational and athletic activities. These establishments provide accommodation facilities, such as cabins or fixed campsites, food services, on-site recreational facilities and equipment, or organized recreational activities.

Campground: A plot of ground upon which two or more campsites are located, established, and maintained for occupancy by camping units as temporary living quarters for recreation, education or vacation purposes.

Campus: The grounds and buildings of a public or private college, university, school or institution.

Carnival: Any aggregation of shows or riding devices, games of skill or chance, or any combination of shows and riding devices, or any combination of several enterprises, such as revolving wheels, merry-go-rounds, giant swings, panoramas, musical and theatrical entertainments, or riding devices, whether carried on or engaged in or conducted in any field, park, or in a building or enclosure, and whether carried on, engaged in, or conducted as one enterprise or by several concessionaires, and whether one admission fee is charged for admission to all such shows or entertainments, or separate fee for admission is charged for each amusement.

Carport: A roofed structure providing space for the parking of motor vehicles and enclosed on not more than three sides.

Ceiling height: The vertical distance from the finished floor to the finished ceiling.

Cemetery: A designated parcel of land used for the interment of the dead in the ground or in memorial structures such as mausoleums or columbarium. See also "Columbarium."

Certificate of appropriateness: Document certifying compliance with historic district guidelines.

Certificate of occupancy (CO): Document allowing occupancy or use of a building and certifying that the structure or use is compliant with local and state codes and ordinances.

Certificate of zoning compliance: A certification that a use or completed structure conforms to the provisions of the land use code and may be used or occupied. Also, a certification that plans for land development or construction conforms to the provisions of the town's regulations.

Child care or day care center: An establishment providing for the care, supervision and protection of children that meets the North Carolina Licensing Standards for Day Care Centers. This term includes nursery schools, preschools, day care centers for individuals, and other similar uses but excludes public and private educational facilities or any facility offering care to individuals for a full 24-hour period.

Code enforcement officer: Any employee of the town whose assigned duties include the enforcement of one or more of the provisions of the code.

Columbarium: A structure for placement of cremated remains which may be outdoors or part of a mausoleum or memorial, but is not necessarily associated with a cemetery.

Commercial use: Activity involving the sale of goods or services carried out for profit.

Communication tower: A structure intended to furnish radio, cellular or television or other point-to-point communication services, whether by wire or radio, but not including amateur radio antennas affected and controlled by FCC regulations codified in, Chapter 47, Section 97, of the Code of Federal Regulations.

Community center: A building used for recreational, social, educational and cultural activities, open to the public or a designated part of the public, usually owned and operated by a public or non-profit group or agency.

Community facility: A building or structure owned and operated by a governmental agency to provide a governmental service to the public.

Composting: A controlled process of degrading organic matter by micro-organisms.

Condominium: A building or group of buildings in which dwelling units, offices, or floor area are owned individually, and the structure, common areas and facilities are owned by all the owners on a proportional, undivided basis. (as distinct from a town home).

Conference center: A facility used for conferences, retreats and seminars, with accommodations for sleeping, food preparation and eating, recreation, entertainment, resource facilities and meeting rooms.

Congregate care facility: A licensed multi-unit facility which provides housing, part-time medical care, shared food preparation and dining areas, and recreational facilities, as well as significant social facilities to meet the needs of the elderly. Congregate care facilities do not include nursing care institutions or similar institutions devoted similarly to the care of the chronically ill or incurable.

Conservation easement: A designation that grants one or more property rights to and for the public, a corporation, or other entity for the purpose of protecting environmentally sensitive or culturally or historically significant areas in perpetuity unless otherwise specified.

Conservation subdivision: A subdivision in which the lot sizes are reduced below those normally required in the zoning district in which the development is located and permanent open space is provided.

Convenience store: Any retail establishment consisting of no more than 3,500 square feet, offering for sale prepackaged food items, household items, newspapers, magazines, sandwiches or freshly prepared food for off-site consumption.

Cottage housing developments: A cluster of detached structures which are no larger than 1,100 square feet and which share common driveways, yards, and other exterior facilities.

Crematory: Establishments primarily engaged in operating sites or structures reserved for cremating the dead.

Cul-de-sac: The bulb-end design located on a short, dead-end street for the purpose of providing a turnaround for vehicular traffic.

Cultural or community facilities: Facilities designed to promote cultural advancement and serve the community such as art galleries, libraries, museums, art centers, community centers or facilities to house civic or fraternal organizations (provided that such facilities are not operated for profit).

Culvert: A conduit used to enclose a flowing body of water, and is frequently used to carry drainage water under a driveway, roadway, railroad, pedestrian walk or public way.

Curb: An improved boundary usually marking the edge of the roadway or paved area.

Curb cut: The opening along the curb line at which point stormwater, or motorized and non-motorized vehicles may enter or leave the roadway.

Demolish: The tearing down and disposal of an entire structure, leaving the property free and clear of any debris and without holes.

Demolition: The tearing down and disposal of an entire structure in a lawful manner, leaving the property free and clear of any debris or environmental hazards.

Density: The number of dwelling units per acre of residential land.

Deteriorated dwelling: A dwelling unit that can be repaired, altered or improved to comply with the minimum standards of the town's minimum housing code at a cost not in excess of 50 percent of its fair market value.

Determination: A written, final and binding order, requirement, or determination regarding an administrative decision.

Developer: A person who undertakes any development and who is the owner of the property. To be developed or who has been authorized by the owner to undertake development on that property.

Development: The construction, erection, alteration, enlargement, renovation, substantial repair, movement to another site or demolition of any structure; excavation, grading, filling, clearing or alteration of land; the subdivision of land as defined in N.C.G.S. 160D-802; the mitigation or substantial use of land or the intensity of use of land.

Development approval: An administrative or quasi-judicial approval that is written and that is required prior to commencing development or undertaking a specific activity, project, or development proposal, including but not limited to zoning permits, site plan approvals, special use permits, variances, and certificates of occupancy.

Development permit: A development approval in writing that is required prior to commencing development or undertaking any activity, project, or development, including any of the following: zoning permits, site plan approvals, special use permits, variances, certificates of appropriateness, plat approvals, development agreements, building permits, subdivision plat approvals, driveway permits, and sign permits.

Development regulation: A zoning regulation, subdivision regulation, erosion and sedimentation control regulation, flood plain or flood damage prevention regulation, mountain ridge protection regulation, stormwater control regulation, wireless telecommunication facility regulation, historic preservation or landmark regulation, housing code, state building code enforcement, or any other regulation that regulates land use or development.

Diameter at breast height (DBH), or caliper: The tree trunk diameter measured in inches at a height of 4.5 feet above the ground. Generally used for measuring existing trees.

Dilapidated dwelling: Any structure of dwelling unit that cannot be repaired or improved in order to comply with the minimum standards of the town's minimum housing code at a cost less than 50 percent of its fair market value.

Discharge: The introduction, either directly or indirectly, of any effluent, whether illicit or non-illicit, into North Carolina surface waters. (See chapter 8.2, Phase II Stormwater Ordinance).

Distillery: An establishment engaged in the production and distribution of spirituous beverages. The establishment may include areas for demonstration, education, tasting, and other uses permitted in the district, in accordance with state and local laws.

Dormitory: A building which is occupied or intended to be occupied as the dwelling for more than six persons who are not related by blood, marriage, or adoption but who are enrolled in, affiliated with, or employed by the same educational, religious, or health institution. "Dormitory" shall not include a boarding house, motel, hotel, group home, or health institution.

Drainage system: Pipes, swales, natural features, and man-made improvements which convey drainage.

Drip line: An imaginary vertical line extending from the outermost edge of a tree canopy or shrub branch to the ground.

Driveway: A private roadway providing access to a street or highway and serving less than four lots.

Driving range: A limited area on which golf players drive golf balls from a central driving tee, such area to include the driving tee and other incidental activities pertaining to this activity.

Dry cleaning: Establishments primarily engaged in providing dry cleaning, laundering, drop-off and pick-up sites or windows for laundry, or specialty cleaning services, without coin-operated machines.

Dumpster: Container designed to receive, transport and dump waste in conjunction with a hauling vehicle or truck. This definition includes containers used for recycling, oil containment, construction waste, or other materials and may be of varying size and design. This definition does not include containers used for waste or recyclable materials which may be wheeled or carried by hand, nor does it include temporary off-loaded dumpsters used for construction or yard waste which are removed after work is completed.

Duplex or two-family residence: A detached building which includes two individual dwelling units. A duplex may be held in single ownership or may be subdivided as a town home or condominium. It is a building designed as a single structure with two residential units, each of which is totally separated from the other by an unpierced wall extending from ground to roof or an unpierced ceiling and floor extending from exterior wall to exterior wall, except for a common stairwell exterior to both dwelling unit.

Dwelling: Any building that contains one or two dwelling units used, intended, or designed to be built, used, rented, leased, let or hired out to be occupied or that are occupied for living purposes.

Dwelling unit: A single unit providing complete independent living facilities for one or more persons, including permanent provisions for living, sleeping, eating, cooking and sanitation, including the following types:

Accessory dwelling or accessory apartment: A dwelling unit located on the same lot as a detached single-family house such as garage apartments or "granny flats," but which is smaller in size than the principal structure.

Apartment unit: One or more rooms with private bath and kitchen facilities comprising an independent, self-contained dwelling unit in a building containing three or more dwelling units.

Condominium: A building or group of buildings in which dwelling units, offices, or floor area are owned individually, and the structure, common areas and facilities are owned by all the owners on a proportional, undivided basis.

Detached dwelling or single-family unit: A dwelling unit on its own lot, designed for one household and developed with no party walls and with open yards on all sides including modular homes, but not including manufactured homes, recreational vehicles, campers or motor vehicles.

Townhouse or town home: A single household dwelling in a row of at least three such units in which each unit has its own front and rear access to the outside, no unit is located over another unit, and each unit is separated from any other unit by one or more vertical, common fire- resistant walls. A subdivision of property within a townhome development, duplex or special use permit shall include the footprint of the structure directly underneath the dwelling unit plus any yard area designated to that unit as part of an approved master plan or building permit.

Easement: A grant of one or more of the property rights by the property owner to and/or for the use by the public, a corporation, or another person or entity.

Education facility: A facility for the education of children and adults including public and private elementary and secondary schools, colleges, technical institutes and universities, but excluding specialized trade schools and nursery school.

Egress: An exit from a parcel, lot or area of property.

Emergency services: Buildings or facilities used to house, station, provide or support emergency services including fire departments, police departments, ambulance and EMS stations, fire and police substations and training facilities.

Encroachment: Any obstruction or intrusion into a delineated flood hazard area, right-of-way, or adjacent property.

Erosion: The detachment and movement of soil or rock fragments or the wearing away of the land surface by water, wind, ice and gravity.

Evergreen: Those plants that retain foliage throughout the year.

Evidentiary hearing: A hearing to gather competent, material, and substantial evidence in order to make findings for a quasi-judicial decision required by a development regulation.

Excavation: Removal or recovery by any means whatsoever of soil, rock, minerals, mineral substances or organic substances, other than vegetation, from water or land, on or beneath the surface thereof.

Existing lot (of record): A lot which is part of a subdivision, a plat of which has been recorded in the office of the register of deeds prior to the adoption of this ordinance, or a lot described by metes and bounds, the description of which has been so recorded prior to the adoption of this ordinance.

Exit: A clear and unobstructed way of departure from the interior of a dwelling or commercial building to the exterior of the building at street or grade level.

Exterior features: The architectural style, general design, and general arrangement of the exterior of a structure, including the kind, texture, and color of building materials, the size and scale of the building, and the type and style of all windows, doors, light fixtures, signs, and other appurtenant fixtures, and including the landscaping and natural features of the parcel containing the structure.

Extermination: The control and elimination of insects, rodents or other pests by removing or making inaccessible materials that may serve as their food, or by poisoning, spraying, fumigating, trapping or other recognized and legal pest elimination method.

Extractive use/mining: Establishments that extract naturally occurring mineral solids, such as rock, coal and ores; liquid minerals, such as crude petroleum; and gases, such as natural gas. The term mining is used in the broad sense to include quarrying, well operations, beneficiating (e.g., crushing, screening, washing, and flotation), and other preparation customarily performed at the mine site, or as a part of mining activity.

Family or household: A group of individuals not necessarily related by blood, marriage, adoption or guardianship, living together in a dwelling unit under single housekeeping unit.

Family care home: A home that provides room and board and personal care and rehabilitation and habitation services for no more than six resident persons with disabilities or handicapped persons. Handicapped persons are those with physical, emotional, and mental disabilities (as distinct from group home).

Farm: see "Agriculture."

Farm supply: Establishments primarily engaged in the merchant wholesale distribution of farm supplies, such as animal feeds, fertilizers, agricultural chemicals, pesticides, plant seeds, and plant bulbs.

Fence: A structural barrier intended to provide screening, prevent escape or intrusion, or to mark a boundary.

Financial and insurance services: Establishments engaged in financial services and transactions including banks, credit unions or agencies, savings and loans, check-cashing, brokerages, or other financial institutions.

Fire apparatus access road: A road that provides fire apparatus access from a fire station to a facility, building or portion thereof. This is a general term inclusive of all other terms such as fire lane, public street, private street, parking lot lane and access roadway.

Flag lot or interior lot: A lot meeting the minimum lot requirements of the underlying zoning district but where access to the public road is by a portion of land adjacent to the lot between the "flag lot" known as a frontage lot and the street in a way that creates a private driveway. The driveway area therefore looks somewhat like a "pole" or "staff" connecting the lot to the street and can be referred to as the flag pole or flag staff of the flag lot.

Flea market: An occasional or periodic market held in an open area or structure where groups of individual sellers offer goods for sale to the public.

Freight handling facility: A facility providing terminals with the capability of handling a large variety of goods involving various forms of transportation such as rail to truck, truck to truck, or truck to air.

Funeral home: A building used for the preparation of the deceased for burial, the display of the deceased and rituals connected therewith before burial or cremation.

Garage: Deck or other structure, or part thereof, used or intended to be used for parking and storage of vehicles.

Garbage: Waste produced by the handling, processing, preparation, cooking, packaging and/or consumption of animal or vegetable products or other consumable goods, or other matter subject to decay or decomposition which generates noxious gases or offensive odors or that may serve as breeding or food material for rodents or other pests. This term does not include materials composting in closed containers or loose, yard waste which is gathered into a windrow or collected into a contained space.

Garden market: A place of business where retail and wholesale products and produce are sold to the consumer. These centers, which may include a nursery and/or greenhouses, import most of the items sold, and may include plants, nursery products and stock, potting soil, hardware, power equipment and machinery, hoes, rakes, shovels, and other garden and farm variety tools and utensils.

Golf course: A tract of land laid out with at least nine holes for playing a game of golf and improved with tees, greens, fairways, and hazards. A golf course includes a clubhouse and shelters as accessory uses.

Governmental facilities: Buildings, facilities and complexes used for the provision of governmental services, including solid waste, recycling, building maintenance, vehicle maintenance, administrative offices, warehousing and storage.

Green building: Buildings sited, designed, constructed and operated to enhance the well-being of occupants and to minimize negative impacts on the community and natural environment.

Greenhouse, accessory structure: An accessory structure constructed of rigid materials for both the roof and sides are permitted under accessory structure guidelines in this land use code.

Greenhouse, commercial: A building whose roof and sides are made largely of glass or other translucent material and in which the temperature and humidity can be regulated for the cultivation of plants for sale.

Greenway: A dedicated and accepted public right-of-way for non-motorized transportation or as a linear open space established for conservation (usually along a natural corridor such as a riverfront, stream valley or ridgeline, or over land along a railroad right-of-way converted to recreational use, a canal, scenic road or other route identified in the town's greenway master plan).

Greywater, also known as sullage, is non-industrial wastewater generated from domestic processes such as dish washing, laundry and bathing. Greywater comprises wastewater generated from all of the house's sanitation equipment except for the septic tank (water from toilets is blackwater, or sewage).

Grocery or supermarket: An establishment which primarily sells a variety of food and general supplies for the table and other household uses.

Group home: A facility which provides resident services to seven or more individuals of whom one or more are unrelated. These individuals are provided services to meet their needs such as halfway houses and foster homes so long as they house seven or more individuals and are distinct from group homes from developmentally disabled adults or adult care homes. Similar facilities providing care for less than seven individuals shall be treated as a single-family residence under zoning district regulations.

Habitable space: Any room or enclosed floor space used or intended for use for living, sleeping, cooking, or eating, including kitchens, but not including bathrooms, halls, corridors, pantries, storage space, or closets.

Health care services: Facilities whether public or private, principally engaged in providing health maintenance and treatment of mental or physical conditions, including medical or dental clinics, or doctors' offices. This definition shall also include certified massage therapists, acupuncture specialists and chiropractors who are licensed by the State of North Carolina.

Health club/fitness center: An establishment that provides facilities for aerobic exercises, running and jogging, exercise equipment, game courts, swimming facilities, and saunas, showers, massage rooms, or lockers.

Heavy timber construction: A type of construction in which the exterior walls are made of noncombustible materials and the interior structural building elements are of solid or laminated wood. To be considered heavy timber construction, supporting wood columns and roof framing shall not be less than six inches in width and eight inches in depth while floor framing members shall not be less than six inches in width and ten inches in depth. (See fire district overlay, chapter 4).

Heritage crafts: An enterprise that involves the production, sale, demonstration or teaching of a handcraft such as pottery, instrument making, spinning and dying yarn, hand weaving or woodworking using traditional methods.

Historic site: A structure or place of historic and cultural significance and designated as such by the Town of Black Mountain or by state or federal historic preservation agencies.

Home occupation: An occupation conducted in a dwelling unit or accessory building that is incidental and subordinate to its use for residential purposes by its occupants, and causes no change in the exterior of the dwelling.

Hospital: An institution providing health services primarily for human in-patient medical or surgical care for the sick or injured and included related facilities such as laboratories, out-patient facilities, and staff offices which are in an integral part of the facility. This term includes sanitorium.

Hotel or inn: A facility offering lodging accommodations to the general public and providing additional services, such as restaurants, meeting rooms, entertainment, and recreational facilities.

Impact fee: A fee imposed on a development to help finance the cost of improvements or services according to the direct or indirect effects of a proposed development on town services, infrastructure, or community goals.

Increased fire hazard: An increase in the volume of combustible material contained in an erected, repaired, altered or moved structure that is not offset by the installation of additional protection features; or changes in the building features that can increase fire movement from one building to another such as increasing the number of openings in exterior walls.

Industrial park: A tract of land, used primarily for industrial and related uses, that is under unified control and is planned, and developed as a whole in a single development operation or programmed series of development stages. The development may include streets, circulation ways, utilities, buildings, open space, and other site features and improvements.

Infestation: The presence within or around a dwelling of any insects, rodents, or other pests in such a manner as to threaten the health, safety or welfare of the occupants or public, or to undermine the integrity of the structure.

Ingress: Access or entry.

Instructional services or studios: Businesses with the function to provide classes and instruction, including, but not limited to, the martial arts, music, dance, specialized trade schools or visual arts and which are not subject to state licensing as public or non-public educational facilities (see educational facility).

Junkyard or salvage yard: The use of any lot, parcel, building, or structure, or part thereof, used primarily for the storage, collection, processing, purchase, sale, salvage or disposal of discarded items including recyclable or non-recyclable material such as paper, scrap metal, and machine parts. See also automobile wrecking/salvage.

Laboratories and research facilities: A building or group of buildings in which are located facilities for scientific research, investigation, testing, or experimentation, but not facilities for the manufacture or sale of products, except as incidental to the main purpose of the laboratory.

Land, vacant: A lot or parcel of land that is partially or fully prepared for development (i.e., graded, utilities installed, access drive installed) on which no improvements that have been permitted or require permitting have been constructed.

Landscape: Lawns, trees, plants, and other natural materials, such as rock and wood chips, and decorative features, including sculpture, patterned walks, fountains, and pools.

Laundromat: Establishments primarily engaged in operating facilities with coin-operated or similar self-service laundry for customer use on the premises. (Does not include dry-cleaning).

LEED: "Leadership in Energy and Environmental Design:" A voluntary, consensus-based national standard for developing high-performance, sustainable buildings. This program is sponsored by the U.S. Green Building Council.

Legislative decision: The adoption, amendment, or repeal of a regulation, including the decision to approve, amend, or rescind a development agreement.

Legislative hearing: A hearing to solicit public comment on a proposed legislative decision.

Loading zone or space: Space designated for pickups and deliveries and scaled to delivery vehicles, including tractor-trailers.

Lot: A portion of a subdivision, or any other parcel of land, intended as a unit of transfer of ownership or for development.

Lot, corner: A lot located at the intersection of two or more streets or located where one street makes an angle greater than 80.

Lot depth: The mean horizontal distance between the front and rear lines.

Lot line: A line of record bounding a lot that divides one lot from another lot or from a public or private street or any other public space.

Lot width: The mean horizontal distance between the two side lot lines.

Low-density project: A project that has no more than two dwelling units per acre or 24 percent built-upon areas (BUA) for all residential and non-residential development.

Lumber yard: An area used for the storage, distribution, and sale of finished or rough-cut lumber and lumber products, but not including the manufacture or fabrication of lumber, lumber products, or firewood.

Manufactured home or manufactured housing: A structure, transportable in one or more sections, which in the traveling mode is eight body feet or more in width, or 40 body feet or more in length, or, when erected on site, is 320 or more square feet; and which is built on a permanent chassis and designed to be used as a dwelling, with or without permanent foundation when connected to the required utilities, including the plumbing, heating, air conditioning and electrical systems contained therein, or for which the manufacturer has voluntarily filed a certification required by the Secretary of HUD and which complies with the standards of the National Manufactured Housing Construction and Safety Standards Act of 1974.

Manufactured home park: Three or more manufactured homes or park models on a parcel of land or a site containing spaces with improvements and utilities that are leased for the placement of manufactured homes or park homes for residential purposes and that may include services and facilities for the residents.

Manufacturing or manufacturing assembly: Establishments engaged in the mechanical or chemical transformation of materials or substances into new products, including the assembling of component parts, the fabrication of products, and the blending of materials, such as lubricating oils plastics, resins or liquors and which may take place indoors or out.

Manufacturing, light: Manufacturing activities taking place entirely indoors, including storage, and which do not emit any odor, noise, vibrations or chemicals outside of the building in which it is located.

Master plan: A comprehensive, long-range plan guiding the development of a tract of land or subdivision.

Medical clinic: A facility providing medical, psychiatric, or surgical service for sick or injured persons exclusively on an out-patient basis, including emergency treatment, diagnostic services, training, administration, and services to outpatients, employees, or visitors. The term "clinic" includes immediate care facilities, where emergency treatment is the dominant form of care provided at the facility.

Meeting hall: A building designed for public assembly containing at least one room of at least 2,400 gross square feet.

Micro-brewery: An establishment engaged in the production and distribution of beer and other fermented malt beverages with a capacity not to exceed 5,000 barrels per year. The establishment may include areas for demonstration, education, tasting, and other uses permitted in the district in accordance with state and local laws.

Micro-distillery: An establishment engaged in the production and distribution of spirituous beverages with a capacity not to exceed 30,000 gallons per year. The establishment may include areas for demonstration, education, tasting and other uses permitted in the district, in accordance with state and local laws.

Micro-winery/cidery: An establishment engaged in the production and distribution of wine, cider, and other fermented fruit beverages with a capacity not to exceed 30,000 gallons per year. The establishment may include areas for demonstration, education, tasting, and other uses permitted in the district, in accordance with state and local laws.

Mixed-use structure: A building containing residential in addition to non-residential uses.

Mobile food court/food vendor court: A plot of ground upon which two or more spaces and associated amenities are regularly provided for use by mobile food vendors to offer food or beverages for sale to the public.

Mobile food vendor: Any mobile food unit, pushcart or motor vehicle, including all machines designed or intended to travel over land by self-propulsion or while attached to any self-propelled vehicle, which is purposed for the sale for consumption of food and beverages.

Mobile retail vendor: A motor vehicle, or trailer towed by another vehicle, designed and equipped to sell goods directly to consumers, excluding firearms, ammunition, tobacco and vaping products.

Mobile retail vendor, artisan: Artists or craftspersons who produce originally designed unique hand-crafted products and of high-quality, including crafts, inedible products, beauty and body products, excluding firearms, ammunition, tobacco and vaping products, and sell using a motor vehicle, or trailer towed by another vehicle.

Motel: An establishment providing sleeping accommodations with a majority of all rooms having direct access to the outside without the necessity of passing through the main lobby of the building.

Multi-family dwelling: A single building containing three or more dwelling units.

Multi-use building: A building containing two or more distinct uses.

Mural: A graphic displayed on the exterior of a building, generally for the purposes of decoration or artistic expression, including but not limited to painting, fresco, or mosaic but excluding any commercial name, brand or message.

Neighborhood fueling facility: A facility for fueling vehicles be it gas, electric, or other fuel, which serves adjacent residential areas and accessory to a convenience store, which is designed to be compatible within a residential area in terms of design, lighting and hours of operation. It may also have additional accessory uses that provide neighborhood services.

Newsrack: A self-service, coin-operated or free dispenser installed, used, or maintained for the display and sale of newspapers, periodicals, or other published material, including real-estate, arts, or other journals.

Nonconforming: The state of not complying with the current ordinance. This term may apply to a lot, structure, or use which was lawful prior to the adoption, revision or amendment of the ordinance but that now fails by reason of such adoption, revision, or amendment, to conform to current development regulations.

Nursing care institution: A licensed healthcare facility, however named, governmental or non-governmental, which provides in-patient care to six or more non-related persons for whom planned and continued medical or nursing attention, or both, are indicated in contrast to the occasional or incidental care provided in congregate care facilities. A nursing care institution may be designed and marketed specifically for the elderly, physically handicapped, or both, but not specific for mentally ill persons who are dangerous to others as defined in G.S. 122C-3(11)(b).

Occupant: Any person living, sleeping, cooking or eating in, or having actual possession of a dwelling.

One-year, twenty-four-hour storm (1-year, 24-hour storm): A 24-hour rainfall of intensity expected to be equaled or exceeded, on average, once in 12 months.

Open space: Any parcel or portion thereof or area of land essentially left in or returned to a natural state and set aside, dedicated or reserved for ecological or recreational purposes for public or private use.

Outdoor theater: An establishment for the performing arts with open-air seating for audiences. Such establishments may include related services such as food and beverage sales and other concessions.

Owner or landowner: The holder of the title to land in fee simple. The landowner may authorize a person holding a valid option, lease, or contract to purchase to act as his or her agent or representative for the purpose of making applications for development approvals.

Park: A tract of land designated and used by the public for active and passive recreation.

Park models or park homes: Recreation vehicles designed as living quarters for camping or seasonal habitation and built on a single chassis, mounted on wheels and having a gross trailer area not exceeding 400 square feet of living area. These are typically built with modular construction and are distinct from manufactured homes.

Party of interest: Any individual, corporation or entity having interest of record in a dwelling or property.

Pier: A post, pole or column of masonry, concrete, steel or lumber extending from a footing to and supporting the building or portion thereof.

Place of worship: A building or group of buildings or structures that by design and construction are primarily intended for conducting organized religious services and associated accessory uses. The term includes, but is not limited to, free-standing churches, synagogues, and temples, and to places of worship located within shopping centers or other buildings. This definition does not include nor is it intended to limit the use of private homes for religious practices, prayer meetings, or other religiously oriented uses as long as the use can conform to the same restrictions on traffic, parking and neighborhood impacts as a home-based business. Child care centers, schools, and recreational facilities developed as a part of the place of worship shall meet the standards for these individual uses as set forth for the zoning district in which they are located.

Planned unit development (PUD): A development of land under unified control that is planned and developed as a whole in a single development operation or programmed series of development stages, including developments permitted as "unified housing developments" and "unified business developments." The development may include streets, circulation ways, utilities, buildings, open spaces and other site features and improvements. These may include various types of residential density and may or may not include a mixture of uses where the lot may or may not be divided or retained in single ownership.

Plat, final subdivision: The final map showing the boundaries and location of individual properties and streets on which the exact subdivision plan is presented for approval and which, if approved, will be financially guaranteed or submitted to the county register of deeds for recording.

Plat, preliminary subdivision: A tentative subdivision plan, in lesser detail than the final plat, indicting the approximate proposed layout of a subdivision as a basis of study and consideration prior to the installation of improvements.

Playground: An active recreational area with a variety of facilities, including equipment for younger children as well as court and field games.

Playhouse: A freestanding structure, exclusively for the use of children, with a maximum height of 12 feet and in an area not to exceed 120 square feet.

Plumbing: Any and all facilities connecting to water, sewer or gas lines.

Positive drainage: The construction of systems that slope in a way that allows for water to be directed away from the structure.

Premises: A building together with its immediate and adjacent grounds.

Principal building: A building in which is conducted the principal use of the parcel on which it is situated.

Principal use: The primary purpose or function that a parcel serves or is intended to serve.

Private clubs: Private organizations or business establishments using membership as a prerequisite to the purchase and consumption of alcoholic beverages on the premises, or using membership as a prerequisite to admission to the activities of the business if the purchase and consumption of alcoholic beverages on the premises is a part of the business or offered in conjunction with the principal activities of the business.

Private street: A non-public road for vehicular traffic, serving four or more lots.

Professional office: The office of a member of a recognized profession maintained for the conduct of that profession, such as those providing real-estate, legal, accounting, architecture, medical or survey services.

Quasi-judicial decision: A decision involving the findings of facts regarding a specific application of development regulations and that requires the exercise of discretion when applying the standards of the regulation.

Reasonable routine maintenance: Replacement of existing portions of a structure with like materials and design so as to avoid deterioration or further deterioration of the structure.

Recreation services, indoor: Establishments engaged in providing indoor recreation services. Indoor services may include public or private health or exercise clubs, tennis or other racquet ball courts, swimming pools, YMCA's or other similar uses which are enclosed in buildings and are operated on a fee or membership basis primarily for the use of persons who do not reside on the same lot as that on which the recreational use is located. Indoor recreation structures may include accessory uses, such as snack bars, pro shops, and locker rooms, which are designed and intended primarily for the use of patrons of the principal recreational use.

Recreation services, outdoor: Establishments engaged in providing outdoor recreation services such as public or private golf courses, country clubs, swimming pools, tennis courts, ball fields and ball courts, which are not enclosed in buildings and are operated on a commercial or membership basis primarily for the use of persons who do not reside on the same lot as that on which the recreation use is located. Outdoor recreation may include accessory uses, such as snack bars, pro shops, and clubhouses which are designed and intended primarily for the use of patrons of the principal recreational use.

Redevelopment: Any rebuilding activity other than a rebuilding activity that results in no net increase in built upon area and provides equal or greater stormwater control than the previous development.

Repair or alteration: Repairs or alterations to a building that exceed reasonable routine maintenance; that cost more than 50 percent of the current value of the building as listed in the assessed tax value; or that change the exterior finish, exterior configuration, number of openings in exterior walls, or the footprint of the building. If the structure has been damaged and is being repaired, the value of the structure shall be interpreted to mean the value before the damage or destruction occurred. (This term does not include emergency repairs needed to secure the structure from water, storms, or unauthorized access).

Residence: A structure or part of a structure containing dwelling units or rooming units, including single-family or two-family houses, multiple dwellings, boarding or rooming houses, or apartments. Residences do not include: such transient accommodations such as transient hotels, motels, tourist cabins, dormitories, and recreational vehicles.

Resident: An individual whose principle place of living and sleeping is in a particular location is a resident of that location.

Restaurant, brew pub/tavern: An establishment in which beer, ale, porter and other fermented malt beverages are produced and sold onsite as part of a restaurant operation in accordance with state and local laws.

Restaurant, drive-thru: An establishment where food and/or beverages are sold in a form ready for consumption, where a portion of the pick-up and consumption of food may take place from an automobile. This term shall include "fast food" restaurants.

Restaurant, eat-in: An establishment where food and drink are prepared, served, and consumed primarily within the principal building, and which may also prepare food for take-out. Eat-in restaurants may or may not serve beer and wine in conjunction with their food service and in accordance with a state ABC permit.

Restaurant, walk-up: An establishment where food and/or beverages are sold in a form ready for consumption where pick up and consumption of food is designed to take place outside the confines of the structure, and which may also prepare food for take-out. Includes food vendors and stands.

Retail sales: Establishments engaged in selling goods or merchandise to the general public and rendering services incidental to the sale of such goods including tailoring or repair. This includes, but is not limited to, specialty shops and stores as well as:

Books, news, recordings retail: Establishments primarily engaged in the sale of books, magazines, or recordings for general consumption as opposed to adult entertainment use.

Clothing and personal accessories merchandise retail: Establishments engaged in the sale of personal clothing, jewelry, watches, shoes, luggage, hats, etc.

Drugstore or pharmacy: A store where the primary business is the filling of medical prescriptions and the sale of drugs, medical devices and supplies, and nonprescription medicines, but where non-medical products may be sold as well.

Florist: Establishments primarily engaged in retailing cut flowers, floral arrangements, and potted plants purchased from others and including on-site preparation.

Garden center: Establishments primarily engaged in retailing nursery and garden products, such as trees, shrubs, plants, seeds, bulbs, and sod that are predominantly grown elsewhere. These establishments may sell a limited amount of a product they grow themselves.

Hardware store: Establishments primarily engaged in the retail sale of a number of basic hardware lines, such as tools, hardware, paint, glass, house wares and household appliances, cutlery and other items.

Musical instruments retail and repair: Establishments engaged in the sale, re-sale and/or repair of musical instruments.

Outlet store: A retail establishment selling a single or limited number of a manufacturer's product.

Right-of-way: 1) a strip of land acquired by purchase, reservation dedication, forced dedication, prescription, or condemnation and intended to be occupied by a roadway, greenway, sidewalk, railroad, utility, storm sewer, or other uses; and 2) the right of one to pass over the property of another.

Rubbish: Solid waste, combustible or noncombustible, excluding food waste, vegetation waste and ashes, which have been discarded from residences, commercial establishments and institutions.

Sanitary sewage: Any liquid waste containing animal or vegetable matter in suspension or solution or the water-carried waste resulting from the discharge of water closets, laundry tubs, washing machines, sinks, dishwashers, or any other source of water-carried waste of human origin or containing putrescent material. See also "greywater."

Sanitary sewage system: Conveyance and treatment of sanitary sewage by the Metropolitan Sewage District, septic systems, or other systems compliant with state building codes.

Screening: A method of visually shielding or obscuring one abutting nearby structure from another by fencing, walls or densely planted vegetation.

Self-service storage facility or mini-storage: A structure containing separate, individual and private storage spaces of varying sizes leased or rented on individual leases for varying periods of time.

Setback: The minimum distance by which any building or structure must be separated from a street right-of-way or lot line. Where no right-of-way is delineated and where property boundaries are located underneath the footprint of an existing road, then setback will be defined as the minimum distance between a building or structure and the edge of the roadway or back of curb. On NCDOT maintained roads where roadway right-of-way is not established, setback is the minimum distance between a building or structure and the back of the maintenance ditch or maintenance area (four feet from the edge of pavement).

Shared housing arrangements/community living: Dwellings, that offer communal areas and services such as housekeeping, transportation, organized social and recreational activities, and other support services for seven or more residents, but excluding assisted living facilities for the elderly or other medical facilities. See also "Group home."

Shopping center: A group of commercial establishments planned, constructed and managed as a total entity.

Short-term rental: Any dwelling or portion thereof that is available for use or is used for accommodations or lodging of guests paying a fee or other compensation for a period of less than 30 consecutive days.

Sidewalk: A paved or otherwise surfaced area designed for pedestrian and wheelchair use.

Sign: Any device, structure, fixture, painting, or visual image using words, graphics, symbols, numbers, or letters designed and used for the purpose of attracting attention or communicating a readable, comprehensive, legible message.

Site plan: A scaled drawing and supporting documents showing the relationship between lot lines and the existing or proposed uses, buildings, or structures on a parcel or parcels of land, which may include site-specific details such as building areas, building height, floor area, setbacks and street rights-of-way, intensities, densities, utility lines and locations, parking, access points, roads, and stormwater control facilities that are depicted to show compliance with all legally required development regulations that are applicable to the project and the site plan review.

Sketch plan: An informal plan, not necessarily to exact scale, indicating salient existing features of a tract and its surroundings and the general layout of a proposed subdivision or development plan for use in technical review and plan development prior to the submittal of a master plan or preliminary plat.

Sleeping room, sleeping unit, or bedroom: A room designated as sleeping or bedroom on the plans and permit application. When no plan or permit application is available, a sleeping room, sleeping unit, or bedroom shall be defined as a room with a closet set up to act as a space for a person to sleep.

Special use permit: A permit issued by the board of adjustment in accordance with the principles, conditions, safeguards, and procedures specified in these regulations to authorize a specific use of land as required by these regulations.

Storm sewer or stormwater sewer: Pipe or conduit used to collect and carry away sewage or stormwater from generating sources to treatment plants, BMPs or receiving streams.

Stormwater: Stormwater from rainfall or snowmelt that runs off the ground or impervious surfaces like buildings, roads, parking lots, etc.

Street: A dedicated and accepted public right-of-way for vehicular traffic. This also includes the terms "roads," or "roadway."

Structure: Anything constructed, installed or portable, the use of which requires a location on a parcel of land, this includes a fixed or moveable building which can be used for residential, business, commercial, agriculture, or office purposes, either temporarily or permanently. "Structure" also includes, but is not limited to, above ground, below ground and permanent swimming pools, cisterns, sewage treatment plants, sheds, and similar accessory construction; however, it does not include landscape features such as ornamental pools, planting boxes, sculpture, birdbaths, open terraces, at-grade bridges and walkways, at-grade slab patios, driveways, small non-permanent shelters for pets, playhouses, open stairs, recreational equipment, flagpoles, underground fallout shelters, air-conditioning compressors, pump houses, wells, mailboxes, outdoor fireplaces, burial vaults, or cemetery marker monuments.

Subdivider: Any person who subdivides or develops any land deemed to be a subdivision as herein defined.

Subdivision: All divisions of a lot, tract, or parcel of land into two or more lots, tracts, parcels, building sites or other divisions when any one of those divisions is created for the purpose of sale or building development (whether immediate or future) and includes all divisions of land involving the dedication of new streets or a change in existing streets.

Subdivision, exempt: The types of land divisions or combinations that are exempt from state and local subdivision regulations (per N.C.G.S. § 160D-802.

Subdivision, major: A subdivision, other than an exempt subdivision, and which requires the extension of public right-of-way and/or public streets, or where the entire tract to be subdivided is greater than five acres, or where the subdivision will result in five or more lots after the subdivision is complete.

Subdivision, minor: A subdivision, other than an exempt subdivision, which involves no new public streets or roads, and where the entire tract to be subdivided is five acres or less in size, and where four or fewer lots will result after the subdivision is complete.

Substantial progress: For the purposes of determining whether sufficient progress has been made on an approved plan, one or more of the following construction activities toward the completion of a site or subdivision plan shall occur: obtaining a grading permit and conducting grading activity on a continuous basis; or installation and approval of on-site infrastructure; or obtaining a building permit for the construction and approval of a building foundation. "Substantial progress" is not necessarily the same as "substantial expenditures" used for determining vested rights pursuant to applicable law.

Summer camp: A recreation and residential center for children or adults that specializes in outdoor activities and programs and which is accredited or seeking accreditation from the American Camp Association (ACA) or other recognized accreditation service.

Tattoo parlor/body piercing studio: An establishment whose principal business activity, either in terms of operation or as held out to the public, is the practice of one or more of the following: (1) placing of designs, letters, figures, symbols, or other marks upon or under the skin of any person, using ink or other substances that result in the permanent coloration of the skin by means of the use of needles or other instruments designed to contact or puncture the skin; (2) creation of an opening in the body of a person for the purpose of inserting jewelry or other decoration.

Tavern: An establishment serving alcoholic beverages in which the principal business is the sale of such beverages at retail for consumption on the premises and where sandwiches and snacks may be available for consumption on the premises.

Temporary sign: A sign with or without a structural frame, not permanently attached to a building, structure, or ground and intended for a limited period of display.

Tenant: Any person who occupies a dwelling unit under a verbal or written lease or holds a legal tenancy in a dwelling.

Theater or music hall: A building or part of a building devoted to showing motion pictures or for dramatic, dance, musical or other live performances. Areas for retail sale of food and beverages, including beer and wine in accordance with state ABC permits, are included in this definition as incidental to the primary use.

Townhome: A one-family dwelling in a row of at least three such units in which each unit has its own front and rear access to the outside, no unit is located over another unit, and each unit is separated from any other unit by one or more vertical common fire-resistant walls. Additionally, ownership of a townhome includes the footprint of the unit itself as well as any common areas established as part of the development plan.

Traffic impact study (TIS): A report analyzing anticipated roadway conditions with and without an applicant's development, and recommending appropriate mitigation measures.

Transient: Occupancy of a dwelling unit or sleeping unit for not more than 30 days.

Truck stop: Any building, premises, or land in which or upon which a business, service, or industry involving the maintenance, storage, or repair of commercial vehicles is conducted or rendered, including the dispensing of motor fuel or other petroleum products directly into motor vehicles and the sale of accessories or equipment for trucks and similar commercial vehicles. It may also include overnight accommodations or restaurant facilities primarily for truck crew use.

Undeveloped land: Land in its natural state.

Unfit for human habitation: Conditions exist within a dwelling or dwelling unit which violate or do not comply with the minimum housing standards established by the town.

Unsafe: State of a structure deemed dangerous because of unstable conditions of walls, overloaded floors, defective construction, dangerous wiring or heating systems, inadequate means of egress, susceptibility to fire or other cause or conditions that make the building unsafe for people to enter or live.

Use: The purpose or activity for which land or buildings are designed, arranged, or intended or for which land or buildings are occupied or maintained.

Warehouse or distribution center: A building used primarily for the storage of goods and materials or an establishment engaged in the receipt, storage and distribution of goods, products, cargo or materials, including shipment by boat, rail, air or motor vehicle.

Warehouse, mini: Establishments primarily engaged in renting or leasing space for self-storage. These establishments provide secure space (i.e., rooms, compartments, lockers, containers, or outdoor space) where clients can store and retrieve their goods.

Watershed or natural drainage: The drainage basin, catchments, or area of land that drains water, sediment, and dissolved materials to a common outlet along a stream channel.

Wholesale establishment: An establishment or place of business primarily engaged in selling and/or distributing merchandise to retailers; to industrial, commercial, institutional, or professional business users, or to other wholesalers; or acting as agents or brokers and buying merchandise for, or selling merchandise to, such individuals or companies. This is not considered a general commercial use.

Winery/cidery: An establishment engaged in the production and distribution of wine, cider, and other fermented fruit beverages. The establishment may include areas for demonstration, education, tasting and other uses permitted in the district in accordance with state and local laws.

Wood or frame structure: A type of construction whose primary structural elements are formed by a system of repetitive wood framing members, not including heavy timber, metal frame, or masonry construction where the exterior walls are composed of noncombustible materials that support the roof load. (See fire district overlay, chapter 4).

Wood and yard waste facility: An operation which collects, stores and/or processes waste and accumulation of tree branches, tree limbs, bushes, shrubbery, cuttings or clippings usually created as refuse in the trimming or cutting of trees, shrubs or bushes, including parts of trees, plant clippings, prunings, leaves and other discarded vegetative material from yards and gardens. Processing may include chipping or mulching to reduce woody material by mechanical means into small pieces to be used for mulch or fuel.

Yard: An open space that lies between the principal building or buildings and the nearest lot line. The minimum required yard as set forth in the ordinance is unoccupied and unobstructed from the ground upward except as may be specifically provided in the ordinance.

Yard, front: A space extending the full width of the lot between any building and the front lot line and measured perpendicular to the building at the closest point to the front lot line.

Yard, rear: A space extending across the full width of the lot between the principal building and the rear lot line and measured perpendicular to the building at closest point to rear lot line.

Yard, side: A space extending from the front yard to the rear yard between the principal building and side lot line and measured perpendicular from the side lot line to the closest point of the principal building.

Zero-lot line lot: A lot created by the division of property along a shared wall of a single structure, with independent ownership for each unit.

Zone: A specifically delineated area or district in a municipality within which uniform regulations and requirements govern the use, placement, spacing, and size of land and buildings. The terms "district," "zone" and "zoning district" are synonymous and are used interchangeably throughout these regulations.

(Ord. No. O-21-16, 12-13-2021; Ord. No. O-22-01, 3-14-2022; Ord. No. O-21-20, 1-10-2022; Ord. No. O-22-02, 4-11-2022; Ord. No. O-24-17, 12-9-2024)

A.

Any use, structure, or lot which does not conform to the requirements of this code but which existed before the effective date of this chapter as a legal "pre-existing nonconformance" and which remains nonconforming, and any use, structure, or lot which has become nonconforming as a result of the adoption of this code or any subsequent rezoning or amendment to the text or official map of this chapter, may be continued or maintained only in accordance with the terms of this section.

B.

This section shall not apply to any feature which is the subject of a variance from particular development regulations that has been granted by the board of adjustment. Where a variance has been granted which does not otherwise conform to the requirements of this section, that feature shall be deemed conforming.

C.

Subject to the conditions and exceptions set out in the following sections, a nonconforming lot, building, structure, or use of land existing at the time of the enactment of this code or any amendment thereto may be continued or maintained provided that such nonconformity shall not be:

1.

Enlarged or extended except in conformity with this chapter;

2.

Reestablished after a discontinuance of 180 days; or

3.

Extended beyond the adopted amortization period if applicable.

A single-family dwelling unit, or a replacement manufactured home meeting the criteria set forth in section 5.14, shall be permitted on any existing, residentially zoned lot of record which contains an area or width less than the required minimum lot size for a single-family dwelling in the district in which a lot is located as long as:

A.

The lot is in separate ownership and not of continuous frontage with other lots in the same ownership on the effective date of this section. Where single ownership exists among adjacent lots, nonconforming lots shall be brought into compliance.

B.

Variance of any district regulations other than lot size requirements is obtained from the board of adjustment.

C.

A replacement, nonconforming manufactured home may be placed within 180 days after the previous home is removed and shall conform to the setback standards of the district in which it is located if possible, and, in the event it is not possible to conform to the setback standards of the district, the replacement manufactured home shall not increase the nonconformity of the current setback requirements and shall be placed to achieve the maximum setback possible.

D.

After 180 days, new construction or replacement manufactured homes shall conform to the setbacks and other standards of the district in which it is located.

E.

All replacement and new manufactured housing shall comply with the requirements for manufactured homes found in Chapter 5.

A.

Any nonconforming structures on conforming lots may be occupied by a conforming use. If any nonconforming structure is proposed to be changed by improving but not expanding the structure to an extent exceeding one-half or 50 percent of its current value, exclusive of foundations, as determined by the building inspector, or if any additions or expansions are made to the structure, then the entirety of the improved building or structure must be in conformance with the dimensional requirements of the district or a variance must be obtained through an action of the board of adjustment.

B.

Structures which are nonconforming in so far as they violate the front, side and/or rear setback requirements of the district in which they are located can be added to providing that no further encroachment occurs to the setback.

C.

Any multi-family dwellings that are in nonconforming structures must meet the minimum lot area standards for multi-family or for the applicable special use permit requirements in the zoning district in which it is located and may not be expanded. No variance may be provided by the board of adjustment to expand a nonconforming multi-family structure.

D.

An existing nonconforming structure may be incorporated within a new special use permit request as long as the other structures and components of the master plan conform to the special use permit requirements.

E.

A nonconforming structure does not make other structures, such as accessory structures and fences, nonconforming on the same lot. Each nonconforming structure stands alone in its nonconformance and will not affect a conforming structure.

A.

A legally established nonconforming use may be continued subject to the following limitations:

1.

When a nonconforming use of a structure has been changed to a conforming use, it may not later be used for any nonconforming use.

2.

A nonconforming use of a structure that is ceased for a continuous period of more than 180 days may not be re-established and all subsequent uses of the structure must be in conformance with the particular district regulations.

B.

A nonconforming use of land or buildings or structures shall not be changed to any new use other than a use listed as permitted or special use within the district in which it is located.

A.

A nonconforming vacant lot may be used for any of the uses permitted in the zoning district in which it is located if the setbacks and district requirements are met or if the owner is granted a variance by the board of adjustment.

B.

If a nonconforming vacant lot adjoins and has continuous frontage with one or more other lots in the same ownership, the owner of the nonconforming lot may not take advantage of the provisions of this section without combining these adjoining lots.

C.

A lot that is only nonconforming due to the fact that it does not comply with access standards can be developed with one single-family residence and typical residential accessory structures if some form of legal access is provided to the property.

A.

Maintenance and repair necessary to keep any nonconforming structure in sound condition, or to maintain a conforming structure on a nonconforming lot in sound condition, are permissible as long as the repairs do not increase the nonconformity.

B.

Nothing in this chapter shall prevent the strengthening of, or restoration to, a safe or lawful condition of any part of any building or structure declared unsafe or unlawful by the building inspector, fire marshal, or any other duly authorized town official.

C.

Any nonconforming building or structure which is damaged by fire or natural casualty may be repaired, provided such repair be accomplished:

1.

Without any increase in the square footage, building height, or floor area;

2.

Without any change in location except to provide greater conformance with district setback requirements;

3.

Within 180 days of a fire; provided that the fire-damaged structure does not otherwise violate the state fire prevention code;

4.

That the use to which the building or other structure is put after repair does not result in a change from one nonconforming use to another nonconforming use.

D.

Any nonconforming building or any building containing a nonconforming use which has been damaged by fire to an extent exceeding 50 percent of its structure or 50 percent of its value at the time of the destruction, shall cause any repair, reconstruction, or re-use to be in conformity with the provisions of this chapter.

A.

The provisions of the land use code shall be administered by the Town of Black Mountain Planning and Development Department, including building inspections, subdivision administration, zoning administration, plan review, long-range planning services, and other duties as directed by the town manager, and as provided by the N.C.G.S. ch. 160D. This may include, but not be limited to the following assignments:

1.

A zoning administrator is assigned the duty and authority to administer and enforce the zoning and general provisions of these development regulations.

2.

A subdivision administrator is assigned the duty and authority to review major and minor subdivisions, approve final plats for minor subdivisions, and provide all other technical assistance and administration as required by the subdivision regulations.

3.

A building inspector is assigned the duty and authority to enforce the requirements of the state and international building codes and requirements as referenced and otherwise provided.

4.

A floodplain administrator is assigned the duty and authority to enforce and administer the floodplain regulations.

5.

A stormwater management administrator is assigned the duty and authority to enforce and administer the phase II stormwater ordinance.

6.

A technical and long range planner may provide general land use planning services and oversight.

7.

Ensuring development compliance with these development regulations, North Carolina General Statutes and the state building code.

B.

Staff duties with respect to administration of the land use code shall include:

1.

Providing technical and staff level review for permit and development applications and preparing staff reports on proposals for boards and commissions as appropriate;

2.

Providing public notification, minutes, and agenda preparation for public meetings;

3.

Preparation of reports, research, documentation, maps and recommendations for the town council, board of adjustment (quasi-judicial) and other citizen advisory boards;

4.

Maintenance of the official zoning map of the Town of Black Mountain;

5.

Issuing zoning, building, floodplain, stormwater and other development permits and certificates of occupancy as described;

6.

Assisting the town clerk with maintenance of the official public record; and

7.

Ensuring development compliance with local land use regulations, North Carolina General Statutes and the state building code.

C.

Conflicts of interest. No staff member shall make a final decision on an administrative decision if the outcome of that decision would have a direct, substantial, and readily identifiable financial impact on the staff member or if the applicant or other person subject to that decision is a person with whom the staff member has a close familial, business, or other associational relationship. If a staff member has a conflict of interest under this section, the decision shall be assigned to the supervisor of the staff person or such other staff person as may be designated by these development regulations or other ordinance.

No staff member shall be financially interested or employed by a business that is financially interested in a development subject to regulation under this Chapter unless the staff member is the owner of the land or building involved. No staff member or other individual or an employee of a company contracting with a city local government to provide staff support shall engage in any work that is inconsistent with his or her duties or with the interest of the local government, as determined by the local government.

A.

In accordance with chapter 2, article III of the Town of Black Mountain Code of Ordinances establishing town administration policies, several boards, each with their own membership, function and duties, provide advisory assistance to implement town goals and policies concerning land use and development.

B.

All meetings of town boards and commissions are open to the public and shall follow the procedures provided in the Black Mountain Code of Ordinances, chapter 2, article III and in the Town of Black Mountain's Boards and Commissions Handbook.

C.

The following boards and commissions have specific powers and duties with respect to the land use code:

1.

The town council is the elected, governing body of the town and shall:

a.

Amend this code and adopt a statement describing how its action is consistent with the comprehensive plan and/or other adopted plans

b.

Adopt new zoning maps and amendments to zoning maps and adopt a statement describing how its action is consistent with the comprehensive plan and other adopted plans;

c.

Adopt amendments to the comprehensive plan and adopt new plans;

d.

Accept or close platted or granted rights-of-way; and

e.

Carry out additional powers and duties as set forth in local and state regulations.

2.

The town planning board is an appointed advisory committee to the town council on land use and planning issues and shall:

a.

Advise and comment on text or zoning map amendments and provide a written recommendation to the town council that addresses how amendments are consistent or inconsistent with the comprehensive plan and/or other adopted plans;

b.

Recommend amendments to the comprehensive plan or other land use and land development plans or development regulations as well as to initiate studies or other planning initiatives;

c.

Approve preliminary plats for subdivisions;

d.

Advise and comment on special use permit applications or annexations and provide a written recommendation to the board of adjustment or town council as assigned;

e.

Advise and comment on right-of-way closure or acceptance petitions and provide a written recommendation to the town council;

f.

Carry out additional powers and duties as set forth in local and state regulations and as assigned by the town council;

3.

The town board of adjustment is the town's quasi-judicial body that hears sworn testimony, obtains evidence and provides for cross examination of witnesses, and must make decisions solely on the evidence presented. It shall have the authority to:

a.

Hear and decide appeals of staff interpretations of ordinances;

b.

Consider and grant variances;

c.

Consider and issue special use permits;

d.

Hear and decide appeals where it is alleged that there is error in any order, decision, interpretation or determination made by zoning officials;

e.

Vary or modify any of the regulations or provisions of the development regulations so that the spirit of the development regulations is observed, public safety and welfare secured, and substantial justice is done. No change in permitted uses may be authorized by variance;

f.

Impose appropriate conditions that are reasonably related to a special use application or to a variance request;

g.

Carry out additional powers and duties as set forth in local and state regulations.

4.

The town historic preservation commission is an advisory committee to the town council with the authority to issue certificates of appropriateness within the historic district and shall:

a.

Review, consider and issue certificates of appropriateness for major and minor works applications prior to the issuance of a building permit;

b.

Recommend to the town council districts or areas to be designated by ordinance as historic overlay districts or conservation districts;

c.

Recommend to the town council individual structures, buildings, sites, areas, or objects for designation by ordinance as historic landmarks;

d.

Adopt and amend guidelines for alterations, demolitions, and new construction within historic districts and for the alteration or demolition of designated landmarks;

e.

Recommend to the town council any revocation of historic district or landmark designation; and

f.

Carry out additional powers and duties as set forth in local and state regulations.

Editor's note— References to title III may be found in documents on file at the office of the city clerk.

A.

No member shall be excused from voting except upon matters involving the consideration of his own financial interest or official conduct. In all other cases, a failure to vote by a member who is physically present in the council chamber, or who has withdrawn without being excused by a majority vote of the remaining members present, shall be recorded as an affirmative vote. The question of the compensation and allowances of members of the board is not a matter involving a member's own financial interest or official conduct.

B.

Members of appointed boards shall not vote on any advisory or legislative decision regarding a development regulation where the outcome of the matter being considered is reasonably likely to have a direct, substantial, and readily identifiable financial impact on the member. An appointed board member shall not vote on any zoning amendment if the landowner of the property subject to a rezoning petition or the applicant for a text amendment is a person with whom the member has a close familial, business or other associational relationship.

C.

Members of appointed boards exercising quasi-judicial functions shall not participate in or vote on any quasi-judicial matter in a manner that would violate affected persons' constitutional rights to an impartial decision maker. Impermissible violations of due process include, but are not limited to, a member having a fixed opinion prior to hearing the matter that is not susceptible to change, undisclosed ex parte communications, a close familial, business, or other associational relationship with an affected person, or a financial interest in the outcome of the matter. For purposes of this section, a close familial relationship means a spouse, parent, child, brother, sister, grandparent, or grandchild. The term includes the step, half, and in-law relationships.

Editor's note— References to title III may be found in documents on file at the office of the city clerk.

The planning department shall maintain a record of all permits and issued certificates of occupancy on file according to the schedule of municipal records as established by the State Government Records Branch of North Carolina. Copies shall be made available on request and at copying cost to interested parties. Official records of public meetings, plans, and other items as appropriate for the public record shall be maintained by the town.

The general provisions of this section apply to all development applications and procedures under these development regulations, unless otherwise stated.

A.

Application forms are available through the on-line portal and on the town's website.

B.

Authority to file applications.

1.

Applicant is not the owner. If the applicant is not the owner of the land, or is a contract purchaser of the property, a letter signed by the owner consenting to the submission of the application shall be submitted.

2.

Applicant is not the sole owner. If the applicant is not the sole owner of the land, a letter signed by the other owners, an association representing the owners, or their authorized agent consenting to or joining in the application for approval shall be submitted.

C.

Simultaneous processing. Whenever two or more forms of review and approval are required under this ordinance (e.g., a rezoning, development agreement or a special use permit), the applications for those development approvals may, at the option of the planning director, be processed simultaneously, so long as all applicable state and local requirements are satisfied for each application. However, whenever these development regulations require two types of review for the same approval (e.g., a master plan for subdivision and a final plat for subdivision), those two review and approval procedures must be completed as separate steps in the order specified.

D.

Completeness. The burden of presenting a complete application to the planning department or to the permit issuing board shall be upon the applicant. Applications will not be acted upon until such time as the application is complete. An application shall be deemed complete if it is submitted in the required form, includes all requested information, and is accompanied by the applicable fee. A determination of application completeness shall be made within five working days of application filing. If an application is determined to be incomplete, the planning director shall provide written notice to the applicant along with the explanation of the application's deficiencies. No further processing of the application shall occur until the deficiencies are corrected. If the deficiencies are not corrected by the applicant within 20 working days, the application shall be considered withdrawn.

E.

Amendment. An applicant may revise a development application for any of the following reasons.

1.

To address deficiencies provided as part of the technical review;

2.

To make limited changes that directly respond to specific requests or suggestions made by a reviewing board or staff in response to a reviewing board, as long as they constitute only minor additions, deletions, or corrections and do not include substantive changes to the development proposed in the application. Additional application fees to defray the additional costs of processing the revised application may be required; or

3.

To have the application reviewed under a new rule or ordinance change that went into effect after the applicant received a written notice of application submittal acceptance, but prior to receiving a written decision on the application.

For any other amendment for which approval has not been granted, the application shall be withdrawn and a revised application shall be submitted and reviewed as a new application. The revised application may be subject to additional application fees to defray the additional costs of processing the revised application.

F.

The burden of persuasion on the issue of whether the development, if completed as proposed, will comply with the requirements of these development regulations remains at all times on the applicant.

A.

To minimize development planning costs, promote public safety, avoid misunderstandings or misinterpretation and ensure compliance with requirements, a pre-application consultation between applicants and the town staff with a sketch plan is encouraged for all projects and required for some to allow for technical review at the beginning of the planning process.

B.

A pre-application consultation and technical review is required for:

1.

Work impacting the exterior of any structure within the historic district;

2.

Major and minor subdivisions;

3.

Special use permits;

4.

A Conditional zoning;

5.

Any work within a flood hazard area as indicated on the FIRM maps; or

6.

Projects within the ICD, OI-6, or CB districts; or

7.

Projects adjacent to US Highway 70 within the US 70 overlay district.

C.

A sketch plan of the project should be prepared for the consultation, drawn approximately to scale (1 inch = 60 feet). Sketch plans for subdivisions, special use permits and institutional campus development have specific, additional requirements. All sketch plans shall contain at a minimum the following information as applicable:

1.

The name and address of the developer;

2.

Total acreage of the subject parcel;

3.

The proposed site layout, including street and lot arrangement, designation of driveways, parking lots, open space, greenways, and stormwater management areas;

4.

Topographic lines and drainages; and

5.

Other information believed necessary to obtain the opinion of the planning department staff as to the proposed project's compliance with the requirements of this code.

D.

The planning director, zoning administrator, building inspector, and fire marshal shall meet with the property owner or developer as soon as conveniently possible to review the sketch plan and to provide technical comments. Other staff or agencies may be invited by the planning director. Staff shall review the application and confer with the applicant to ensure that the applicable requirements have been met and that the application represents what the applicant proposes to do. Staff will then determine the necessary approval process and prepare recommendations or a report and documentation for advancing the project through the appropriate channels, such as the historic preservation commission, the planning board, and/or the board of adjustment, or other board or commission.

(Ord. No. O-21-07, 8-9-2021)

Any application, sketch plan, master plan, or plat that must go before the planning board, historic preservation commission, board of adjustment, or town council must be submitted at least 14 days prior to the regularly scheduled meeting in order to be placed on that meeting's agenda.

The town council may adopt a schedule of fees for permits and processing costs associated with the administration of these development regulations.

A.

Fees to be paid. No application shall be processed until the established fee has been paid.

B.

Refund of fees. Application fees are not refundable except where the planning director determines that an application was accepted in error, or in the event the fee paid exceeded the amount due, the amount of the overpayment will be refunded to the applicant.

A.

These development regulations and the zoning map may from time to time be amended, supplemented, changed, modified or repealed by the town council after the following procedures and standards provided in this chapter have been met and in accordance with state statutes.

B.

Reserved.

C.

No text or map amendment shall become effective unless it shall have been proposed by or shall first have been submitted to the planning board for review and recommendation.

A.

The planning board and town council must consider the following in their consideration of any text or map amendments:

1.

If the public necessity, convenience, general welfare, or good zoning practices justify such action, and

2.

If the action is consistent with the town comprehensive plan or other adopted plans.

B.

Reserved.

The town council shall not reconsider a proposed amendment to the zoning map for a period of six months from the date of the determination of the prior request; unless, the planning board recommends that reconsideration be given after a substantial change in the character of the area or evidence of factors or conditions that were not considered by the planning board or the town council in previous deliberations and which might substantially alter the basis upon which the previous determination was made.

A.

Board initiation of amendments. A proposed amendment to the text of the development regulations or the official zoning map may be initiated by the town council or the planning board, whether on their own initiative or upon recommendation of any town board or commission submitted to the planning board.

B.

Citizen petitions for amendments. Any citizen of Black Mountain may request an amendment to the text of this code or the official zoning map by submitting an application to the planning department. Completed forms, together with any additional information the applicant feels to be pertinent, shall be filed with the planning department. The property owner or the holder of a conditional sales contract may request an amendment to the development regulations for a particular piece of property.

C.

Only completed applications will be considered. Applications or board recommendations received at least two weeks prior to the planning board meeting shall be heard at that meeting. Any communication purporting to be a petition for an amendment shall be regarded as notice to seek relief only or an informal recommendation to the planning board, until such time as the amendment petition is filed with the planning and development department.

D.

Petitions for changes in zoning classification (or "rezonings") shall indicate the location, intended use of the site, and the names of all property owners and existing land uses within 200 feet of the petitioned property boundary.

E.

Petition fees. Recommendations for changes to the development regulations text or map that come from town appointed boards or commissions shall not require a petition fee.

Notice of planning board meeting to consider proposed map amendment. When a zoning map amendment is proposed, staff shall prominently post a notice of the public meeting on the site of the proposed rezoning or on an adjacent public street or highway right-of-way at least ten but not more than 25 days prior to the date of the hearing. When multiple parcels are included within a proposed zoning amendment, a posting on each individual parcel is not required but the town shall post enough notices in strategically visible locations so as to provide reasonable notice to interested persons. Additionally, the town shall provide notice by first class mail to all property owners within 200 feet of the property boundary of the proposed amendment and the date of the public meeting. If the zoning map amendment affects more than 50 properties, owned by at least 50 different property owners, staff may publish a notice of the hearing, provided that each advertisement shall not be less than one-half of a newspaper page in size as long as the property owners residing outside the newspaper circulation are still notified by mail.

F.

Proposed text and/or map changes shall be submitted to the planning board for review and recommendation. The planning board shall, within 30 days, submit a recommendation to the town council with a statement describing whether the proposed amendment is consistent with the comprehensive plan and other officially adopted plans as applicable. A comment by the planning board that a proposed amendment is inconsistent with the comprehensive plan or other officially adopted plans shall not preclude consideration or approval of the proposed amendment by the town council. If the planning board fails to act within the required 30-day period, the town council may act on the amendment without the planning board report.

G.

Public hearing required. Before enacting an amendment to the development regulations or official zoning map, the council shall first hold a public hearing.

H.

Notice of hearing required. When a zoning map amendment is proposed, public notice of the public hearing shall be posted, advertised, and mailed as follows:

1.

Staff shall prominently post a notice of the public hearing on the site of the proposed rezoning or on an adjacent street or highway right-of-way within the same time period specified for mailed notices of the hearing. When multiple parcels are included within a proposed zoning map amendment, a posting on each individual parcel is not required but the town shall post enough notices in strategically visible locations so as to provide reasonable notice to interested persons.

2.

Staff shall place notification of the public hearing in a newspaper of general circulation within the Town of Black Mountain once a week for two successive calendar weeks. The notice shall be published the first time not less than ten days nor more than 25 days before the date scheduled for the hearing. In computing such period, the day of publication is not to be included but the day of the hearing shall be included. Meeting notice shall include time and place of hearing.

3.

Staff shall mail a notice of the hearing to all property owners within 200 feet of the subject property by first class mail at the last addresses listed for such owners on the county tax records. The notice must be deposited in the mail at least ten but not more than 25 days prior to the date scheduled for the hearing. If the zoning map amendment affects more than 50 properties, owned by at least 50 different property owners, in lieu of mailed notice, staff may publish a notice of the hearing as an advertisement in a newspaper of general circulation within the Town of Black Mountain, provided that such advertisement shall not be less than one-half of a newspaper page in size and all property owners residing outside the newspaper circulation area must still be notified by mail.

I.

Reserved.

J.

Written statement of consistency. Per N.C.G.S. § 160D-605, in adopting or rejecting any zoning amendment, the town council shall also adopt a brief statement describing whether its action is consistent or inconsistent with an adopted comprehensive plan.

K.

Changes in the zoning map. Following final action by the town council, zoning designation changes will be considered immediate unless an alternate effective date is established by action of the board, and any necessary changes in the zoning map itself shall be made as soon as possible. A written record of the type and date of the changes shall be maintained by the planning department.

A.

Timing and submittal of application. All applications for conditional district rezoning shall be submitted to the planning and development department by the owner or any other person having a recognized interest in the land for which the development is proposed or their authorized agent. Application forms are available through the on-line portal and on the town's website.

B.

Content of application. Every application for conditional zoning shall include, at a minimum, the following:

1.

A proposed site plan, which shall include:

a.

The name and address of the owner;

b.

Total acreage of the subject parcel;

c.

The proposed site layout, including street and lot arrangement; the general location, orientation and size of principal structures; designation of driveways, parking lots, open space, greenways, and stormwater management areas; the location, size and treatment of environmentally sensitive areas; and any existing or proposed easements, utility lines, water lines, or sewer lines.

2.

Proposed total density and a summary of the total land area devoted to each type of general use of land;

3.

A full list of the proposed uses consistent in character with the underlying zoning district, whether permitted by right or conditionally;

4.

A proposed development schedule if the development is to proceed in phases;

5.

Identification of any required variation from existing regulations of the underlying base zoning district;

6.

A list of proposed conditions, if any;

7.

The names of all property owners and existing land uses within 200 feet of the boundary of the subject property.

C.

Application fee. Application fees shall be established by the town council and the required fee must accompany the application. Application fees are nonrefundable except where the application is withdrawn prior to consideration by the planning board.

D.

Technical review required. Every application for conditional district zoning shall conform to the technical review requirements set out in section 1.4.6 of this Code.

E.

Planning board review required. Following the required technical review, the application shall be placed on the agenda for consideration at the next regularly scheduled planning board meeting.

F.

Planning board recommendation. The planning board shall submit a recommendation to the town council with a statement describing the following:

1.

Whether the proposed conditional district is consistent with the comprehensive plan and other officially adopted plans, as applicable;

2.

The uses to be permitted in the district;

3.

Any required variation from the regulations of the underlying base zoning district, if any;

4.

Recommended conditions, if any.

G.

Public hearing required. Following consideration by the planning board, the application shall be forwarded to the town council for public hearing.

H.

Notice of hearing required. Public notice of the public hearing shall be posted, advertised, and mailed as follows:

1.

Staff shall prominently post a notice of the public hearing on the site of the proposed rezoning or on an adjacent street or highway right-of-way within the same time period specified for mailed notices of the hearing. When multiple parcels are included within a proposed zoning map amendment, a posting on each individual parcel is not required but the town shall post enough notices in strategically visible locations so as to provide reasonable notice to interested persons.

2.

Staff shall place notification of the public hearing in a newspaper of general circulation within the Town of Black Mountain once a week for two successive calendar weeks. The notice shall be published the first time not less than ten days nor more than 25 days before the date scheduled for the hearing. In computing such period, the day of publication is not to be included but the day of the hearing shall be included. Meeting notice shall include the time and place of the hearing.

3.

Staff shall mail a notice of the hearing to all property owners within 200 feet of the subject property by first class mail at the last address listed for such owners on the county tax records. The notice must be deposited in the mail at least ten but not more than 25 days prior to the date scheduled for the hearing. If this requirement would result in notices being sent to more than 50 different property owners, in lieu of mailed notice, the staff may publish a notice of the hearing as an advertisement in a newspaper of general circulation within the Town of Black Mountain, provided that such advertisement shall not be less than one-half of a newspaper page in size and all property owners residing outside the newspaper circulation area must still be notified by mail.

I.

Approval. The town council may approve or deny the application or may approve the application with reasonable and appropriate conditions attached. Any conditions to be attached must be consented to by the owner of the property in writing. The council shall adopt a brief statement describing whether its action to either approve or deny the proposed rezoning is consistent or inconsistent with the comprehensive plan or any other adopted plan. A certified copy of the ordinance bearing the signature of the property owner to evidence the property owner's consent shall be recorded in the records of the Buncombe County Register of Deeds within 30 days of approval.

J.

Effect of approval. Following approval, the applicant may proceed with the development pursuant to the approved site plan. If the proposed development involves the subdivision of land, approval of the master plan and conditional zoning designation shall serve as preliminary plat approval for the purposes of this code.

1.

Final approval. Approval of final plats conforming to the approved master plan shall be approved by the planning director without the need for additional review ordinarily required for subdivisions or special use permits.

2.

Substantial changes. Any substantial changes to an approved plan shall be reviewed by the planning board and approved or denied by the town council as a text amendment to the zoning ordinance. The following changes are considered substantial for purposes of this section:

a.

The addition or removal of land from the zone;

b.

The additional or relocation of a building or structure;

c.

Addition or relocation of streets, roads, or driveways not contemplated in the original plan;

d.

Modification of special performance criteria, design standards, or other conditions or requirements specified by the enacting ordinance;

e.

A change in land use or development type beyond that permitted in the enacting ordinance;

f.

An increase in the total number of residential dwelling units; or

g.

An increase of more than ten percent in total floor area of any nonresidential structures.

3.

All other changes. The planning director shall have authority to review and either approve or deny any other proposed changes to the approved plan of development. Appeals from the decision of the planning director to approve or deny a proposed change shall proceed according to section 1.7 of this Code.

(Ord. No. O-21-07, 8-9-2021)

A.

No building shall be used or occupied, or re-used or reoccupied, for commercial, institutional or industrial purposes, and no new residential construction shall be occupied until a certificate of compliance and occupancy, or "C.O." is obtained from the building inspector or his/her designee, stating that the building, any building and/or site improvements, or the proposed use complies with the provisions of these development regulations. Any residences which are converted to any type of non-residential use are required by North Carolina State Law to have a building inspection done. Any converted building shall be required to comply with required site plan or building renovation permit submittal and to obtain a commercial certificate of occupancy.

B.

Applications for a CO must be submitted to the planning department and shall be accompanied by a site plan, approved final plat, or other such plans and specifications as the building inspector, fire marshal and zoning administrator may require in order to render a decision regarding the conformity of the proposed use, reuse, construction or renovation, to the applicable development regulations.

C.

The CO shall be issued only when the building inspector, fire marshal and zoning administrator certify that the project is in compliance with applicable development regulations and the site and building improvements have been completed in accordance with the previously submitted and approved plans.

D.

The fire marshal and the building inspector or their designees are authorized to post information of certificate of occupancy requirements and other building code information on vacant, unattended or abandoned premises in order to assist business owners in meeting the town occupancy requirements and to comply with the safety requirements of the NC Fire Code and the NC Building Code. Signs, tags or seals posted or affixed by the code official shall not be mutilated, destroyed, tampered with, or removed without authorization from the code official.

A.

Any persons or interested parties wishing to seek a variance shall file an application with the town planning and development department for a hearing with the board of adjustment. Any persons or interested parties wishing to seek an appeal of a zoning interpretation or staff determination shall file an application with the town clerk for a hearing with the board of adjustment.

B.

An application fee shall accompany each application for a variance and this fee shall be nonrefundable except in any case where the application is withdrawn prior to its consideration by the board of adjustment. There is no fee for an appeal.

C.

Before filing the application, the applicant is strongly encouraged to meet with the planning director or zoning administrator to discuss the proposed variance or appeal and to become more familiar with the applicable requirements and approval procedures of the town.

D.

Upon receipt of a complete application, the planning and development department shall forward the application to the board of adjustment according to the following procedures:

1.

The board of adjustment shall hold an evidentiary hearing regarding applications once the completed application and accompanying fees are received by the planning and development department and upon proper notification (see below) for the next regularly scheduled board of adjustment meeting. Special hearings may be scheduled at the direction of the board of adjustment chair.

2.

Staff shall place notification of the evidentiary hearing. Staff shall place notification of the evidentiary hearing in a newspaper of general circulation within the Town of Black Mountain once a week for two successive calendar weeks. The notice shall be published the first time not less than ten days nor more than 25 days before the date scheduled for the hearing. In computing such period, the day of publication is not to be included but the day of the hearing shall be included. Meeting notice shall include time and place of hearing.

3.

Notice of hearings shall be mailed to the person or entity whose appeal, application or request is the subject of the hearing; to the owner of the property that is the subject of the hearing if the owner did not initiate the hearing; to the owners of all parcels within 200 feet of the parcel of land that is subject of the hearing; and to any other persons entitled to receive notice as provided by the development regulations. In the absence of evidence to the contrary, notice will be mailed to the owner reflected in the county tax listing and at the address where county tax notices are sent. The notice must be deposited in the mail at least ten days but not more than 25 days, prior to the date scheduled for the hearing. Within that same time period, staff shall prominently post a notice of the hearing on the site that is the subject of the hearing or on an adjacent street or highway right-of-way.

4.

The concurring vote of four-fifths of the board of adjustment shall be necessary to grant a variance. A majority vote of the members shall be required for all other quasi-judicial matters or to determine an appeal made in the nature of certiorari.

5.

The board of adjustment shall keep minutes of its proceedings showing the vote of each member upon each question, or if absent or failing to vote, indicating that fact; and shall keep record of its examinations and other official action, all of which shall be immediately filed in the office of the zoning administrator and shall be public record.

6.

On all appeals, applications, matters, decisions and orders brought before the board of adjustment, the zoning administrator shall deliver by certified mail, return receipt requested, personal delivery, electronic mail, or by first-class mail to the applicant, property owner, and to any person who has submitted a written request for a copy, prior to the date the decision becomes effective. The zoning administrator shall certify that proper notice has been made.

E.

In the event that the board of adjustment reverses or modifies the contested action, all subsequent actions taken by administrative officers with regard to the subject matter shall be in accordance with the reversal or modification granted by the board of adjustment unless an appeal is taken on the board's decision.

F.

The applicant is responsible for presenting necessary data in written and verbal form in support of their appeal or variance, including but not limited to, historic information, environmental studies, scaled drawings, plans or photographs, and providing such materials to the town as part of the application package.

A.

The board of adjustment shall hear and decide appeals where it is alleged there is error in any order, requirement, decision or determination made by an administrative official charged with the enforcement of the town's development regulations.

1.

An appeal is taken by filing a notice of appeal with the town clerk. The notice of appeal shall state the grounds for the appeal.

2.

An appeal of an administrative decision must be made within 30 days from receipt of the written notice of the administrative decision, which written notice shall be delivered to the person seeking the determination and the owner of the property that is the subject of the determination. Any other person who has standing under N.C.G.S. § 160D-1402(c) or the town may appeal a decision to the board of adjustment within 30 days from receipt of actual or constructive notice of the determination. In the absence of evidence to the contrary, notice given pursuant to N.C.G.S. § 160D-403(b) by first-class mail is deemed received on the third business day following deposit of the notice for mailing with the United States Postal Service.

3.

It shall be conclusively presumed that all persons with standing to appeal have constructive notice of the decision from the date a sign containing the words "Zoning Decision" or "Subdivision Decision" in letters at least six inches high and identifying the means to contact an official for information about the decision is prominently posted on the property that is the subject of the decision, provided the sign remains on the property for at least ten days. Position of a sign is not the only form of constructive notice. Any such posting shall be the responsibility of the landowner or applicant. Verification of the posting shall be provided by the official who made the decision.

4.

The owner of the property that is the subject of the decision and the party who sought the decision, if different from the owner, shall be entitled to written notice of the appeal. The written notice shall be delivered by certified mail, return receipt requested, personal delivery, electronic mail, or by first-class mail

5.

The official who made the decision shall transmit to the board all documents and exhibits constituting the record upon which the action appealed from is taken. The official shall also provide a copy of the record to the applicant and to the owner of the property that is the subject of the appeal if the appellant is not the owner.

6.

An appeal of a notice of violation or other enforcement order stays the enforcement of the action appealed from and accrual of fines assessed unless the official who made the decision certifies to the board of adjustment after notice of appeal has been filed that because of the facts stated in an affidavit, a stay would cause imminent peril to life or property or because the violation is transitory in nature, a stay would seriously interfere with enforcement of the development regulations. In that case, enforcement proceedings shall not be stayed except by a restraining order, which may be granted by a court. If enforcement proceedings are not stayed, the appellant may file with the official a request for an expedited hearing of the appeal, and the board shall meet to hear the appeal within 15 days after such a request is filed. Notwithstanding the foregoing, appeals of decisions granting a development approval or otherwise affirming that proposed use of property is consistent with the development regulations shall not stay the further review of an application for development approval to use such property; in these situations, the appellant or local government may request, and the board may grant, a stay of a final decision of development approval, including building permits affected by the issue being appealed.

7.

Subject to the provisions of subsection 6. of this section, the board of adjustment shall hear and decide the appeal within a reasonable time.

8.

The official who made the decision, or the person currently occupying that position if the decision- maker is no longer employed by the local government, shall be present at the hearing as a witness. The appellant shall not be limited at the evidentiary hearing to matters stated in a notice of appeal. If any party or the town would be unduly prejudiced by the presentation of matters not presented in the notice of appeal, the board shall continue the hearing. When hearing an appeal, the board may reverse, affirm, wholly or partly, or may modify the decision appealed from and shall make any order, requirement, decision, or determination that ought to be made. The board shall have all of the powers of the official who made the decision.

9.

When hearing an appeal pursuant to N.C.G.S. § 160D-9047(e) or any other appeal in the nature of certiorari, the hearing shall be based on the record below and the scope of review shall be as provided in N.C.G.S. § 160D-1402(k).

10.

Any aggrieved party may appeal from the decision of the board of adjustment to the Superior Court of Buncombe County in the nature of certiorari. Any such petition for writ of certiorari shall be filed no later than 30 days after a written copy of the decision of the board of adjustment is delivered as provided in section 1.7.1.D.6.

A.

The board of adjustment shall authorize upon application in specific cases such variance from the terms of the town's development regulations as will not be contrary to the public interest and were owing to special conditions, a literal enforcement of the provisions of town zoning regulations will, in an individual case, result in practical difficulty or unnecessary hardship. Variances are intended to provide limited relief from regulations in those cases where strict application of a particular requirement will create a practical difficulty or unnecessary hardship prohibiting the use of land in a manner otherwise allowed under the development regulations and in a way that the spirit of the town zoning regulations shall be preserved, public safety and welfare secured, and substantial justice done.

B.

Variance requests pertaining to property, signs, or structures within the town's designated historic district, or on structures designated on the National Register, must be reviewed by the town's historic preservation commission and a recommendation in the form of a certificate of appropriateness provided prior to the board of adjustment's deliberations

C.

The existence of a nonconforming use of neighboring land, building or structures in the same district or of permitted or nonconforming uses in other districts shall not constitute a reason for a requested variance.

D.

In no event shall the board of adjustment grant a variance which would:

1.

Allow the establishment of a use which is not otherwise allowed in a zoning district or which would change the zoning district classification or the district boundary of the property in question.

2.

Vary from the flood protection provisions within the designated floodway district in any way which would result in any increase in the flood levels during the regulatory flood discharge or threaten the public safety (see flood hazard protection ordinance concerning variances).

3.

Conflict with the North Carolina State Building Code, the North Carolina Fire Code, or any other state code unless otherwise authorized by laws and regulations.

4.

Permit the creation of a nonconforming lot.

5.

Deviate from the sign regulations within the sign ordinance unless the requested variance is within the town's historic district and the variance would further the goals of the town's historic preservation commission.

E.

A variance may be granted in the individual case of unnecessary hardship upon the board of adjustment being able to establish the following findings:

1.

That unnecessary hardship would result from the strict application of the development regulations. It shall not be necessary to demonstrate that, in the absence of the variance, no reasonable use can be made of the property;

2.

That 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;. A variance may be granted when necessary and appropriate to make a reasonable accommodation under the Federal Fair Housing Act for a person with a disability;

3.

That 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 a variance shall not be regarded as a self-created hardship;

4.

That the requested variance is consistent with the spirit, purpose, and intent of the development regulations, such that public safety is secured, and substantial justice is achieved.

F.

After the board of adjustment approves a variance, the applicant shall follow all appropriate procedures set forth in these regulations for the receipt of permits, certificates, and other approvals necessary in order to proceed with development.

A.

Applications for a certificate of appropriateness shall be obtained from, and when completed, filed with the planning director or his or her designee. The application shall be filed two weeks prior to the next regularly scheduled meeting of the commission. Sketches, drawings, photographs, specifications, descriptions and other information of sufficient detail to clearly show the proposed exterior alterations, additions, changes or new construction shall accompany each application. The names and mailing addresses of property owners filing and/or subject to the application, and the addresses of property within 100 feet on all sides of the property, which is subject to the application, must also be filed.

B.

Applicants for projects involving new construction or extensive alterations and/or additions to existing structures may request a technical review with staff prior to submitting the application.

A.

Major works—Major work projects involve a change in the appearance of a building or landscape and are more substantial in nature than minor work projects. Certificates of appropriateness for major works may only be approved and issued by the historic preservation commission.

B.

Minor works—Minor works are those exterior changes that do not involve substantial alterations, additions or removals that could impair the integrity of the landmark or property in the historic district. Certificates of appropriateness for minor works may be approved and issued by the planning director or his or her designee. If an application for a certificate of appropriateness for a minor work is disapproved by the planning director, the application shall be forwarded to the historic preservation commission for consideration. No application may be denied without formal action by the historic preservation commission. All minor works applications approved by the planning director or his/her designee shall be forwarded to the commission for their information in time for its next scheduled meeting.

A.

No certificate of appropriateness shall be issued unless the commission finds that the application complies with the historic district design standards.

B.

The following review criteria, in addition to the design standards, shall be considered, where relevant, to make findings of fact indicating the extent to which the application for a certificate of appropriateness is or is not congruous with the historic aspects of the designated landmark or district:

1.

Lot coverage, defined as the percentage of the lot area covered by primary structures.

2.

Setback, defined as the distance from the lot lines to the building.

3.

Building height.

4.

Spacing of buildings, defined as the distance between adjacent buildings.

5.

Proportion, shape, positioning, locating, pattern, sizes and style of all elements of fenestration and entry doors.

6.

Surface materials and textures.

7.

Roof shapes, forms and materials

8.

Use of regional or local architectural traditions.

9.

General form and proportion of buildings and structures; and the relationship of additions to the main structure.

10.

Expression of architectural detailing.

11.

Orientation of the building to the street.

12.

Scale, determined by the size of the units of construction and architectural details in relation to the human scale, and also by the relationship of the building mass to adjoining open space and nearby buildings and structures; maintenance of pedestrian scale.

13.

Proportion of width to height of the total building facade.

14.

Archaeological sites and resources associated with standing structures.

15.

Effect of trees and other landscape elements.

16.

Major landscaping which would impact known archaeological sites.

17.

Style, material, size and location of all outdoor advertising signs.

18.

Appurtenant features and fixtures, such as lighting.

19.

Structural condition and soundness.

20.

Walls—Physical ingredients, such as brick, stone or wood walls, wrought iron fences, evergreen landscape masses or combinations of these.

21.

Ground cover or paving.

22.

Significant landscape, archaeological and natural features.

C.

The Secretary of the Interior's "Standards for Rehabilitation and Guidelines for Rehabilitating Historic Buildings" shall be the sole standards used in reviewing applications of the State of North Carolina for certificate of appropriateness.

A.

An application for a certificate of appropriateness authorizing the relocation, demolition, removal or destruction of a designated landmark or a building, structure or site within the historic district may not be denied except as provided in section subsection C below. However, the effective date of such a certificate may be delayed for a period of up to 365 days from the date of approval. The commission shall reduce the period of delay if it finds that the owner would suffer extreme hardship or be permanently deprived of all beneficial use or return from such property by virtue of the delay. During such period the commission shall negotiate with the owner and with any other parties in an effort to find a means of preserving the building or site. If the commission finds that a building, structure or site has no special significance or value toward maintaining the character of a district, it shall waive all or part of such period of delay and authorize earlier demolition or removal.

B.

If the commission has voted to recommend designation of a property as a landmark or designation of an area as a district, and final designation has not been made by the town council, the demolition or destruction of any building, site or structure located on the property of the proposed landmark or in the proposed district may be delayed by the commission for a period of up to 180 days or until the town council takes final action on the designation, whichever comes first.

C.

An application for a certificate of appropriateness authorizing the demolition or destruction of a building, site or structure determined by the state historic preservation officer as having statewide significance as defined in the criteria of the National Register of Historic Places may be denied except where the commission finds that the owner would suffer extreme hardship or be permanently deprived of all beneficial use or return by virtue of the denial.

D.

The town council may enact a regulation to prevent the demolition by neglect of any designated landmark or any structure or building within the established historic district. Such regulation shall provide appropriate safeguards to protect property owners from undue hardship.

A.

The historic preservation commission shall receive applications for certificates of appropriateness. The commission shall review such application according to the review criteria, the historic district design standards and the Secretary of the Interior's Standards for Rehabilitation and Illustrated Guidelines for Rehabilitating Historic Buildings and shall approve or disapprove such application as provided in paragraph F. of this section.

B.

Prior to issuance or denial of a certificate of appropriateness, the commission shall take such action as may reasonably be required to inform the owners of any property likely to be materially affected by the application and shall give the applicant and such owners an opportunity to be heard. A written notice of the proposal shall be sent to the applicant and to owners of property (i.e., lots, parcels or tracts of land) within 100 feet of the property for which an application for a certificate of appropriateness has been applied for.

C.

Applications for certificates of appropriateness shall be acted upon within 90 days after filing, otherwise the application shall be deemed approved and a certificate shall be issued.

D.

Prior to the issuance or denial of a certificate of appropriateness that applicant and other property owners likely to materially affected by the application shall be given an opportunity to be heard.

E.

In cases where the commission deems it necessary, it may hold an evidentiary hearing concerning an application for a certificate of appropriateness, which hearing shall follow the procedures set forth for quasi- judicial hearings in N.C.G.S. § 160D-406.

F.

The historic preservation commission's final action on an application for a certificate of appropriateness shall be by the passage of a motion to take one of the following actions:

1.

Approve the application for a certificate of appropriateness as proposed;

2.

Approve the application for a certificate of appropriateness subject to specific conditions and/or modifications of the proposal presented in the application for a certificate of appropriateness;

3.

Disapprove the application for a certificate of appropriateness as proposed or modified.

G.

An appeal of the commission's action in granting or denying any certificate may be taken to the board of adjustment (a) by any aggrieved party, (b) shall be taken within 30 days of the written decision and (c) shall be in the nature of certiorari.

H.

Written notice of the intent to appeal to the board of adjustment from the historic commission must be sent to the town clerk postmarked within 30 days following the filing of the written decision with the town clerk.

I.

Appeal from the decision of the board of adjustment shall be made to the Superior Court of Buncombe County in accordance with N.C.G.S. § 160D-1402.

J.

In the case of properties owned by the State of North Carolina or its agencies, appeals may be taken to the North Carolina Historical Commission which shall render its decision within 30 days from the date of appeal by the state is received by the historical commission. The decision of the North Carolina Historical Commission shall be final and binding upon both the state and the commission.

A.

Passage of a motion to approve, with or without modification, an application shall constitute the issuance of a certificate of appropriateness by the historic preservation commission. The application and the duly approved minutes of the commission shall constitute the written documentation of such issuance.

Following the meeting a certificate shall be mailed to the property for which a certificate has been issued. The certificate shall be posted on the premises, in a location visible from the street, while the work is in progress. Minutes of a historic preservation commission meeting shall be approved before the end of the next meeting.

B.

A certificate of appropriateness shall be valid for a period of six months from the date of issuance for the purpose of obtaining any development approval. A certificate of appropriateness shall expire six months after the date of issuance if the work authorized by the certificate has not been commenced. If, after commencement, the work is discontinued for a period of six months, the permit shall immediately expire.

C.

Compliance with certificates of appropriateness shall be enforced by the planning director or his or her designee. Failure to comply with a certificate of appropriateness shall be a violation of the development regulations and is punishable according to established procedures and penalties for such violations. The enforcement of any remedy provided herein shall not prevent the enforcement of any other remedy or remedies provided herein or in other regulations or laws.

D.

In case any building, structure, site, area or object designated as a landmark or located within the historic district is about to be demolished whether as a result of deliberate neglect or otherwise, materially altered, remodeled, removed or destroyed, except in compliance with the regulations, the commission or other party aggrieved by such action may institute any appropriate action or proceeding to prevent such unlawful demolition, destruction, material alteration, remodeling or removal, to restrain, correct or abate such violation, or to prevent any illegal act or conduct with respect to such a building or structure.

A.

In the event that the commission, in considering an application for a certificate of appropriateness, shall find that a building or structure for which a development permit is requested is to be an authentic restoration or reconstruction of a building or structure which existed at the same location but does not meet the requirements of the underlying district, said building or structure may be authorized to be restored or reconstructed at the same location where the original building or structure was located, provided the board of adjustment authorizes such as a special exception and no use other than that permitted in the district in which such is located is made of said property. Such conditions as may be attached to the historic preservation commission approval and those conditions as may be set by the board of adjustment shall be included in any certificate of appropriateness related thereto.

B.

If the commission finds that an application for a certificate of appropriateness concerning any porches, steps, posts, fences, walls or other items extending over, on or within public rights-of-way to be necessary for the authentic restoration, reconstruction or maintenance thereof, and will not impede or block pedestrian traffic or constitute a hazard to public safety, such findings shall be transmitted to the town council for its consideration in authorizing or denying such encroachments into rights-of-way.

C.

If the town council authorizes such encroachment, any items restored, reconstructed or maintained on, over or within a public right-of-way shall be the responsibility of the owner, and the owner shall agree to protect and hold the Town of Black Mountain harmless against any and all liability, cost damage or expense suffered as a result of the restoration, reconstruction or maintenance thereof. The lowest point of any such item projecting over any sidewalk shall be at least nine feet above the sidewalk immediately below.

A.

A statutory vested right is established when:

1.

A site-specific vesting plan is approved;

2.

A final plat is approved for the initial phase of a multi-phase development;

3.

A development agreement is approved and entered into pursuant to Chapter 160D, Article 10 of the North Carolina General Statutes.

4.

For all other types of development, when a development permit has been issued;

B.

During the period that a statutory vested right exists, no amendment to this land use code shall be applicable or enforceable without the written consent of the owner, except as specifically provided in this section.

C.

The establishment of a vested right shall not preclude the application of overlay zoning that imposes additional requirements but do not affect the allowable type or intensity of use, or regulations that are general in nature and are applicable to all property subject to the regulations of the Development Regulations of the Town of Black Mountain, including, but not limited to flood hazard prevention, building, fire, plumbing, electrical and mechanical codes and general regulations of the town.

D.

A vested right is not a personal right but shall attach to and run with the land. Successors in title may exercise such right under the same conditions and for the same time that the original applicant could have exercised such right.

E.

Nothing in this section shall be construed to preclude the establishment of a vested right under one or more common law principles.

F.

A development permit or approval shall expire, and the period of vested rights shall terminate, unless work authorized by the permit has substantially commenced, on the date which is:

1.

For a site-specific vesting plan, as specified in section 1.9.2 below;

2.

For a multi-phase development of at least 25 acres, seven years from the date the site plan for the initial phase of the development was approved by the planning board;

3.

Specified in the approved development agreement;

4.

For all other development permits or approvals, the date which is one year from the date the permit was issued or approval was given, whichever is later;

5.

For an incomplete development project in which development work is intentionally and voluntarily discontinued, the date which is two years from the date work was last performed on the site.

G.

Substantial commencement of work shall be determined by planning director based on any of the following:

1.

The development has received and maintained a valid erosion and sedimentation control permit and conducted grading activity on a continuous basis and not discontinued it for more than 30 days;

2.

The development has installed substantial on-site infrastructure; or

3.

The development has received and maintained a valid building permit for the construction and approval of a building foundation.

H.

Development permits or approvals, other than site-specific vesting plans, that would otherwise expire according to paragraph F, may be extended for additional periods of one year if the permit-issuing authority determines that:

1.

The permit has not yet expired;

2.

The permit holder has proceeded with due diligence and in good faith; and

3.

Conditions have not changed so substantially as to warrant a new application.

A.

The following types of development approvals are site-specific vesting plans for purposes of this section:

1.

Any development for which a special use permit is required;

2.

Major and minor subdivisions.

B.

Approval of a site-specific vesting plan may contain conditions as provided in this code. Conditional approval establishes a vested right for purposes of this section, except that a condition that a variance be obtained does not confer a vested right unless and until the necessary variance is obtained.

C.

Approval of a site-specific vesting plan may be conditioned upon subsequent reviews by the approving authority or administrative staff to ensure compliance with the terms and conditions of the original approval.

D.

Approval of a site-specific vesting plan may be revoked for failure to comply with applicable conditions.

E.

Once established, a vested right pursuant to a site-specific vesting plan precludes any action by the town that would change, alter, impair, prevent, diminish, or otherwise delay the development or use of property allowed by these development regulations, except under one or more of the following conditions:

1.

With the written consent of the affected landowner;

2.

The town council, by ordinance issued after notice and a public hearing, determines that natural or man- made hazards on or in the immediate vicinity of the property, if uncorrected, would pose a serious threat to the public health, safety, and welfare if the project were to proceed as contemplated in the site-specific vesting plan;

3.

To the extent the landowner receives compensation for all costs, expenses, and other losses incurred, together with interest as provided in N.C.G.S. § 160D-106;

4.

The town council, by ordinance issued after notice and a public hearing, determines that the landowner or his representative intentionally supplied inaccurate information or made material misrepresentations that made a difference in the approval by the approval authority of the site-specific vesting plan; or

5.

A state or federal law or regulation precludes development as contemplated, in which case the approval authority may modify the affected provisions upon a finding that the change in state or federal law has a fundamental effect on the plan.

F.

A vested right for a site-specific vesting plan remains vested for a period of two years from the date the first development approval or permit is issued for the site. The period of vested rights may be extended by the approving authority for subsequent periods of one year each up to a total of five years.

(Ord. No. O-21-07, 8-9-2021; Ord. No. O-23-14, 8-14-2023)

A.

If an applicant submits a complete application for a development permit or approval and a development regulation is amended before the permit decision, the applicant may choose which version of the rule or ordinance (the former version or the new version) applies to the application.

B.

When a development requires multiple permits, the applicant may choose the version of each of the applicable development regulations upon submittal of the application for the initial development permit. This provision is applicable for subsequent development permit applications filed for the same development project within 18 months of the date following the approval of the initial permit. For purposes of this subsection, an erosion and sedimentation control permit or a sign permit is not an initial development permit.

A.

A vested right may be established for a single- or multi-tract development outside of the town's jurisdiction but seeking voluntary annexation upon the effective date of the town's action or ordinance relating thereto and as described in a preliminary plat or master plan approved by the town planning board and the town council. In such cases, the following also apply:

1.

Approval of a site-specific development plan may contain a variance from the proposed zoning district or other terms and conditions as may reasonably be necessary to protect the health, safety, and welfare of the citizens of the town and of the prospective residents or businesses of the proposed development.

2.

A petition for annexation filed with the Town of Black Mountain under N.C.G.S. § 160A-31 or N.C.G.S. § 160A-58.1 shall contain a signed statement declaring whether or not any zoning vested right with respect to the properties subject to the petition has been established under N.C.G.S. § 160D-108.

3.

A statement that declares that no zoning vested right has been established under N.C.G.S. § 160D-108, or the failure to sign a statement declaring whether or not a zoning vested right has been established, shall be binding on the landowner and any such zoning vested right shall be terminated.

B.

The applicable zoning district shall be established at the time of annexation.

A.

Pursuant to the authority granted by N.C.G.S. § 160D-1001, et seq., which states that a local government may establish procedures and requirements to consider and enter into development agreements with developers for projects involving developable property of any size (including property that is subject to an executed brownfields agreement pursuant to Part 5 of Article 9 of Chapter 130A of the General Statutes), the Town of Black Mountain may, upon approval of an ordinance by the town council, enter into development agreements as provided in this section.

B.

The intent of development agreements is to allow the town board flexibility in managing large projects which may have a variety of uses and purposes included in a master plan, or which would otherwise not be appropriate for a traditional neighborhood development or other zoning district designation available at the time of the development plan approval.

C.

Development agreements are also intended to provide assurances of vested rights indefinitely, unless a timeframe is otherwise provided in the development agreement itself, in cases where a project may be constructed over time or in phases.

A.

In conjunction with this code, all development proposals shall meet any and all local, state, and federal requirements which include but are not limited to the North Carolina Building Code, North Carolina Fire Code, and Americans with Disabilities Act (ADA), and local stormwater and flood hazard prevention ordinances.

B.

Development proposals shall conform to all adopted town plans, policies, guidelines and manuals, including the comprehensive plan, pedestrian plan and Greenway Master Plan.

C.

To the extent that the development plan does not fall specifically within existing town zoning, the development agreement ordinance will create a new zoning district specifically for the development agreement's planning area. The development agreement may also state that land use intensities, heights, setbacks, floor area, lot sizes and widths, recreation space, parking requirements, impervious surface limitations and other dimensional standards be specified in the agreement. If the above stated criteria are specified in the agreement, the town's land use intensities and dimensional standards are not applicable.

D.

An unlawful, nonconforming use, structure, or lot shall not be rendered a lawful nonconforming use, structure, or lot under this ordinance unless specified in the development agreement.

A.

Before a development agreement may be approved, a sketch plan must be presented to the town staff for technical review related to existing town policies, infrastructure and facility needs, and the development of a staff recommendation;

B.

Following the technical review, the development agreement and a development sketch plan shall be forwarded to the planning board for public input and planning board comment.

C.

Before a development agreement is presented to the planning board, staff shall prominently post a notice of the public meeting on the site of the proposed development agreement or on an adjacent public street or highway right-of-way no later than ten days prior to the meeting. Additionally, the town shall provide notice by first class mail to all property owners within 200 feet of the property boundary of the proposed development agreement and the date scheduled for the public meeting no later than ten days prior to the meeting.

D.

The planning board shall consider all of the following:

1.

Applicable zoning designation or creation of new zoning;

2.

Consistency with adopted town plans and policies; and

3.

Recommendations for requirements that the town council should pursue as part of the development agreement.

E.

The town council shall review the planning board's and staff's reports and set a public hearing.

F.

Notice of the public hearing shall be provided as follows:

1.

Staff shall place notification of the public hearing in a newspaper of general circulation within the Town of Black Mountain once a week for two successive calendar weeks. The notice shall be published not less than ten days but no more than 25 days before the date scheduled for the hearing. In computing such period, the day of publication is not to be included but the day of the hearing shall be included. Meeting notice shall include time and place of hearing.

2.

Staff shall prominently post a notice of the public hearing on the site of the proposed development agreement or on an adjacent public street or highway right-of-way. Additionally, the town shall provide notice by first class mail to all property owners within 200 feet of the property boundary of the proposed development agreement and the date of the public hearing. The mailed notice must include the location of the property, the development uses proposed on the site and a place where a copy of the development agreement can be obtained.

3.

Notice shall also be posted on the town website indicating the date and time of the hearing.

G.

The town council shall consider a development agreement for adoption only after a public hearing.

H.

Development agreements shall be accompanied by a master plan and the provisions of the development agreement as specifically enumerated and adopted and shall govern the development of the land in accordance with the master plan.

A.

No person may use, or occupy any land or buildings or authorize or permit the use, or occupancy, of land or buildings under his control except in accordance with all of the applicable provisions of the development agreement ordinance.

B.

For purposes of this section, the use or occupancy of a building or land relates to anything and everything that is done to, on, or in that building or land.

Fees sufficient to cover the costs of administration, inspection, publication of notice and similar matters may be charged to applicants for zoning permits, sign permits, special use permits, subdivision plat approval, zoning amendments, variances, and other administrative relief shall be applied in accordance with the published fee schedule.

A.

These development regulations shall be enforced by the town council and administrative staff through their authority to abate violations, and to enjoin, restrain, and prosecute any person violating these development regulations pursuant to North Carolina law.

B.

This section establishes the procedures by which the town seeks corrections of violations of these development regulations. It also sets forth the remedies and penalties that apply to violations of these development regulations. The provisions of this section are intended to encourage the voluntary correction of violations.

It shall be unlawful for any person to develop or use any building or structure within the town or its ETJ in violation of this land use code. Any failure to comply with a requirement, prohibition, or limitation imposed by the land use code, or the terms or conditions of any permit or other development approval or authorization granted pursuant to this land use code shall constitute a violation of the Town Code of Ordinances.

For the purposes of this code, the responsible person or party shall include but not be limited to:

A.

A person or firm maintaining the condition that results in or constitutes a violation. This could include but not be limited to an architect, engineer, builder, contractor, developer, agency, or any other person who participates in, assists, directs, creates, causes, or maintains a condition that constitutes a violation of these development regulations.

B.

The owner of the land on which the violation occurs, any tenant or occupant of the property, or any person, who has control over, or responsibility for, its use or development.

C.

The holder of a development approval.

A.

Whenever a violation of these development regulations occurs or is alleged to have occurred, any person may file a written complaint documenting the alleged violation and submit it to the planning and development department for investigation by the zoning administrator. The planning and development department shall supply complaint forms.

B.

Under the powers of this article, the enforcement officers of the planning and development department, including the building inspector, fire marshal, zoning administrator and planning director, shall have the authority to enter onto land within the town's jurisdiction to inspect for violations of this code or to investigate complaints.

On determining that a violation exists, the planning and development department staff may issue a written warning, the code creates an imminent risk of harm to persons or property. The written warning shall which shall include a description of the violation and the actions necessary to correct the violation, and invite the person responsible for the violation to meet with the enforcement official to discuss the violation and how it may be corrected. The warning shall be delivered by personal delivery, electronic delivery, or first-class mail to the responsible party. If the violation creates an imminent risk of harm to persons or property, the enforcement official shall not provide a warning, and shall proceed immediately to issue a notice of violation as set out in section 1.11.6.

A.

When work or activity has been undertaken in violation of state law, this code or the terms of a development approval, a written notice of violation may be issued by the responsible enforcement official. The notice of violation shall be delivered by personal delivery, electronic delivery, or first-class mail to all responsible parties. The notice of violation may be posted on the property.

B.

The notice of violation shall include a description of the violation and the actions necessary to correct the violation and shall require such remedial action be taken within a prescribed time period not to exceed 90 days. The enforcement officer may extend the 90-day period at his or her discretion for reasonable mitigating circumstances, but must document the reasons for the extension. Enforcement officers may waive penalties in cases where emergency or temporary repairs have been made out of necessity for the welfare and safety of the public or structure.

If the violation at issue is a violation of the State Building Code, the property owner or party responsible for the violation may appeal the issuance of the citation to the Commissioner of Insurance pursuant to N.C.G.S. § 160D-1127.

For all other violations, the property owner or party responsible for the violation may appeal the issuance of the citation to the board of adjustment within 30 days of the date of the receipt of the written citation by filing an appeal application with the town clerk.

The town may use any combination of the actions and penalties provided in this section to prevent, correct, stop, abate, or penalize a violation of the development regulations.

A.

Whenever land is disturbed or a building, structure or part thereof is being constructed, demolished, renovated, altered, or repaired in substantial violation of any applicable provision of these development regulations, the planning director, zoning administrator, fire or building inspector or other enforcement official may order the specific part of the work that is in violation, or would be when the work is completed, to be immediately stopped.

1.

The stop work order shall be in writing, directed to the person doing the work, and shall state the specific work to be stopped, the specific reasons for cessation and the action(s) necessary to lawfully resume work.

2.

A copy of the order shall be delivered to all responsible parties by personal delivery, electronic delivery, or first-class mail.

3.

The enforcement officer may revoke and require the return of any development permit by written notification to the permit holder when violations of these development regulations have occurred. Permits may be revoked when false statements or misrepresentations were made in securing the permit, work is being or has been done in substantial departure from the approved application or plan, there has been a failure to comply with the requirements of these development regulations, or a permit has been mistakenly issued in violation of these development regulations.

B.

When a stop work order is issued as the result of a violation of the State Building Code, any responsible party may appeal to the North Carolina Commissioner of Insurance as provided in N.C.G.S. § 160D-1114.

C.

When a stop work order is issued as the result of a violation other than a violation of the State Building Code, any responsible party may appeal to the board of adjustment within 30 days of the date the order is issued by filing an appeal application with the town clerk.

D.

Failure to correct the violation, appeal, or request an extension of time for correcting the violation, shall constitute a waiver of any objection to said determination and of the right to an administrative hearing and adjudication, and the order shall therefore be final and binding.

A.

Injunction. The planning director, zoning administrator or building inspector, may institute an action in a court of competent jurisdiction for a mandatory or prohibitory injunction to correct a violation of these development regulations. Any person violating these development regulations shall be subject to the full range of equitable remedies provided in chapter 160D of the North Carolina General Statutes.

B.

Order of abatement. In addition to an injunction, town enforcement agents may apply for and the court may enter into an order of abatement as part of the judgment in the case. An order of abatement may direct any of the following actions:

1.

Buildings or other structures on the property be closed, demolished, or removed;

2.

Fixtures, furniture or other moveable property be moved or removed entirely;

3.

Improvements, alterations, modifications or repairs be made; or

4.

Other actions necessary to bring the property into compliance with these development regulations.

C.

Execution of court decisions. If the responsible party fails or refuses to comply with an injunction or with an order of abatement within the time allowed by the court, he or she may be cited for contempt and the town may execute the order of abatement. The town shall have a lien on the property for the cost of executing the order in the nature of a mechanic's and materialman's lien. The defendant may secure cancellation of an order of abatement by paying all costs of the proceedings and by posting a bond for compliance with the order. The bond must be given with sureties approved by the clerk of superior court in an amount approved by the judge before whom the matter was heard and shall be conditioned on the defendant's full compliance with the terms of the order of abatement within the time fixed by the judge. Cancellation of an order of abatement does not suspend or cancel an injunction issued in conjunction with the order.

A.

Permit revocation. If a person fails to comply with the terms of a permit or development approval, the responsible enforcement official may revoke the permit or development approval.

B.

Disapproval of subsequent permits and development approvals. As long as a violation of these development regulations continues and remains uncorrected, the planning director may withhold, and the planning director and other town boards may disapprove, any request for permit or development approval or authorization provided for by these development regulations for the land on which the violation occurs.

C.

Repeat violations. After a notice of violation, warning citation or civil citation has been issued, any re-erection or display of the same noncompliant signage or any repeat of the same zoning offense, within a 12-month period, which is in violation of this chapter on the same premises shall be considered a continuance of the original violation.

A.

Pursuant to N.C.G.S. § 160A-175, the town may impose civil penalties in the form of fines for violation of its development regulations. Subsequent citations for the same violation may be issued by the enforcement official if the offender does not pay the citation (except as otherwise provided in a warning citation) after it has been issued, unless an appeal of the citation is pending.

B.

The following penalties are hereby established:

1.

Warning citation: Correct violation within timeframe established by written citation.

2.

First citation: Up to $50.00, with each day considered a separate offense and a cumulative fine not to exceed $500.00.

3.

Subsequent citations for same offense: $500.00. If the offender fails to pay the civil penalties within 30 days after having been cited, the town may recover the penalties in a civil action in the nature of debt collection.