This article establishes the policies and procedures for the administration of the unified development ordinance. In carrying out the administration and implementation of the UDO, the following entities and individuals are vested with the following responsibilities:

The following provisions are common to the processes established in the UDO and apply to applications submitted under this article. Additional procedural details may be included for each specific procedure.

Any person who has standing under G.S. § 160D-1402(c) may appeal a decision or interpretation by the ordinance administrator to the board of planning and adjustment. Appeals shall be subject to the provisions of G.S. § 160D-405 and other applicable laws. Appeals of actions by the ordinance administrator in the review and approval of subdivisions subject to his authority shall be made to Superior Court of Cleveland County in accordance with the standards of G.S. § 160D-1403(b).

In administering the provisions of this ordinance, the town council shall have final approval authority for the following:

(A)

Amendments to the text of the unified development ordinance.

(B)

Amendments to the official zoning map.

(C)

Establishment of vested rights.

In administering the provisions of this ordinance, the board of planning and adjustment is responsible for reviewing and providing recommendations to the town council on the following:

(A)

Amendments to the text of the unified development ordinance.

(B)

Amendments to the official zoning map.

In administering the provisions of this ordinance, the board of planning and adjustment shall have final approval authority for the following:

(A)

Special use permits.

(B)

Variances.

(C)

Appeals of administrative decisions.

(D)

Major subdivision preliminary plats.

The town manager is hereby appointed to serve in the office of ordinance administrator and shall be vested with the authority and responsibility for the administration and enforcement of all provisions of the UDO, with the exception of actions that are reserved for the town council or board of planning and adjustment. The ordinance administrator may confer such authority as he chooses to a designee acting on his behalf in the administration of the UDO.

(A)

Review responsibility: The ordinance administrator shall have the responsibility to review the following applications prior to their consideration by the respective appointed and elected bodies charged with their further review and / or approval:

(1)

Amendments to the text of the unified development ordinance.

(2)

Amendments to the official zoning map.

(3)

Establishment of vested rights.

(4)

Special use permits.

(5)

Variances.

(B)

Approval authority: In administering the provisions of this ordinance, the ordinance administrator shall have final approval authority for the following:

(1)

Zoning permits.

(2)

Watershed protection permits (see article 13).

(3)

Floodplain development permits (see article 14).

(4)

Concept plans.

(5)

Site plans.

(6)

Architectural design plans.

(7)

Final major subdivision plats.

(8)

Minor subdivision plats.

A technical review committee (TRC) is hereby established to assist the ordinance administrator in the review of development proposals that require a higher degree technical review due to the type, scale or intensity of the proposed development.

The TRC shall consist of the town manager, town planner, public works director, fire marshal, police chief, and town engineer. Representatives of outside agencies having subject matter expertise or responsibility with regard to utilities, infrastructure or services not directly provided by the town may be invited to join TRC meetings in an advisory capacity as deemed necessary by the ordinance administrator.

Development proposals required to be reviewed by the TRC include the following:

(A)

Concept plans.

(B)

Site plans.

(C)

Preliminary major subdivision plats.

(D)

Final major subdivision plats.

The ordinance administrator shall establish the requirements for the general form and content of applications required by this ordinance. These shall be in addition to any specific application content requirements established by the ordinance.

The town council shall establish, and may modify from time to time, a schedule of fees for applications. This schedule of fees shall be kept on file in the office of the town clerk.

The ordinance administrator shall establish a submission and review schedule for applications for the processes established in the UDO.

All applications shall be submitted to the ordinance administrator on such forms and in such numbers as have been established for that type of application. Applications which do not meet the requirements of subsection 2.3.5, Determination of Completeness, shall be considered incomplete and their review shall be deferred until such time that all requirements of that section have been fulfilled.

(A)

Review for completeness. Upon the receipt of an application, the ordinance administrator shall review the application for completeness. A complete application is one that:

(1)

Contains all information and materials established by the ordinance administrator, or set forth elsewhere in the UDO, for the particular type of development application;

(2)

The application is in the form established by the ordinance administrator for the particular type of development application;

(3)

Includes information in sufficient detail to evaluate the application to determine whether it complies with the appropriate standards of the UDO; and

(4)

It is accompanied by the fee established for the particular type of application.

(B)

Incomplete applications. If the application is determined to be incomplete, the ordinance administrator shall notify the applicant of the deficiencies in writing within ten business days following submittal. Following notification, the applicant may correct the deficiencies and amend or resubmit the application for review.

When an application that is subject to final approval by the ordinance administrator is submitted and determined to be complete, he shall review the application and approve or deny it based on the standards established in the UDO. Following his approval or denial of the application, the ordinance administrator shall notify the applicant in writing of his decision within the time period set forth in the submission and review schedule.

The following shall apply to those applications that are submitted to the Ordinance Administrator for review or final decision by an elected or appointed body:

(A)

Calendaring. Following the determination that the application is complete, the ordinance administrator shall place the item on the agenda of the applicable body as specified by the submission and review schedule, or by statute, as applicable.

(B)

Staff reports and recommendations. The ordinance administrator shall review the application and prepare a written staff report for presentation to the body that will be hearing the application. Except in the case of quasi-judicial processes, the ordinance administrator may, at his discretion, include a recommendation for approval or denial of the application in the staff report.

The ordinance administrator shall be responsible for scheduling and providing notice for public hearings for all applications for which one is required. Hearings shall be scheduled in a manner that will allow sufficient time for public notice to be given in accordance with statutory requirements.

(A)

Content. All public notices required under this ordinance shall comply with G.S. § 160D-406, G.S. § 160D-601, or G.S. § 160D-602 as applicable. Additionally, all notices, except for posted notices, shall:

(1)

Identify the date, time and location of the hearing.

(2)

Identify the property or properties involved by the street address (if applicable) and Cleveland County Parcel Identification Number.

(3)

Describe the nature and scope of the proposed action.

(4)

Indicate that interested parties may appear at public hearings and speak on the matter.

(5)

Indicate how additional information on the matter can be obtained.

(B)

Published notice. When published notice is required to be given for a public hearing or other meeting pursuant to G.S. § 160D-601 or G.S. § 160D-602 or other applicable law, the ordinance administrator shall publish a notice of the meeting or public hearing in conformance with applicable law.

(C)

Mailed notice. When mailed notice is required to be provided pursuant to G.S. § 160D-406 or 160D-602 or other applicable law, the ordinance administrator shall prepare such notice and deliver the notice in the manner prescribed by applicable law.

(1)

Mailed notices shall be delivered to the following persons:

i.

The applicant;

ii.

Listed property owner(s) whose property is subject to the proposed action if the applicant is not the owner;

iii.

Listed owners of immediately adjacent properties, including such properties that are separated from the affected parcel by a public or private right-of-way, watercourse or other intervening feature that is not a separate tax parcel; and

iv.

Any other person as prescribed by applicable law.

(2)

The ordinance administrator shall certify that the required mailed notice procedures have been followed prior to each hearing for which mailed notice is required.

(D)

Posted notice. When notice of a public hearing or other meeting is required to be posted pursuant to G.S. § 160D-406 or 160D-602 or other applicable law, the ordinance administrator shall prominently post such notice on the subject property in the manner prescribed by applicable law.

(1)

Notice shall be posted at least ten days, but not more than 25 days, prior to the first hearing for which it is required, or as otherwise required by applicable law.

(2)

In computing such period, the day of the posting shall not be counted, but the day of the hearing shall be counted. Posted notices shall remain in place until such time that the approving authority has rendered its final decision on the matter.

(3)

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 sufficient notices to provide reasonable notice to interested persons.

(4)

If no part of the subject property is visible from a public right-of-way, the notice shall be posted along the nearest street in the public right-of-way in such a manner as to ensure consistency with the intent of this subsection and relevant statutory requirements.

(E)

Constructive notice.

(1)

Minor defects in a notice shall not impair the notice or invalidate proceedings pursuant to the notice if a bona fide attempt has been made to comply with the applicable notice requirements. Minor defects in notices may include, but are not limited to, typographical or grammatical errors that do not impede the communication of the notice to affected parties.

(2)

Unless otherwise directed by applicable law, the failure of an affected party to receive written notice shall not invalidate subsequent action. In all cases, however, the requirements for the timing of the notice and for specifying the time, date and place of a public hearing or meeting and the general location of the subject property shall be strictly adhered to.

(3)

If question arises at the hearing regarding the adequacy of the notice, the reviewing or decision-making body shall direct the Ordinance Administrator to make a formal report as to whether there was substantial compliance with the notice requirements of this ordinance, and the report shall be made available to the reviewing or decision-making body prior to further action being taken on the request.

A decision-making body may, according to the express terms of this Ordinance, impose or accept conditions on applications in those circumstances where permitted. Such conditions may be used to ensure compliance with this and other town ordinances, prevent or mitigate adverse impacts from the proposed development, and ensure general conformance with the comprehensive land use plan. All conditions shall be reduced to writing and referenced in the motion by the decision-making body to approve the development application.

(A)

Request prior to publication of notice. An applicant may request that a decision-making body's consideration of an application at a hearing or meeting be deferred by submitting a written request for deferral to the ordinance administrator prior to the publication of notice for the hearing. The date of the new hearing at which the application will be heard shall be set at the time the deferral is granted by the ordinance administrator.

(B)

Request following publication of notice. If a request for deferral of consideration of an application by a decision-making body is submitted following the publication of the required notice, the request for deferral shall be placed on the agenda and acted upon by the decision-making body. The date of the new public hearing at which the application will be heard shall be set at the time the deferral is granted by the decision-making body. If a deferral is granted, the application shall be subject to additional fees to reimburse the town for the costs of new notices. Such additional fees shall be paid to the town prior to the subsequent notices being made.

(A)

Minor changes. Minor changes, such as additions, deletions or corrections constituting clerical errors in an application, may be submitted to the ordinance administrator or reviewing body, as applicable.

(B)

Major changes. Major changes to an application, such as those related to allowed uses, density or intensity of development, street layout, driveway access, open space configuration or other major element, may not be made following review and recommendation by a body tasked with that responsibility or following notification of a public hearing. Such changes require that the original application be withdrawn and a new application be submitted along with all required fees. The resubmitted application must go through the entire review process as if it were a new application in order to ensure the proper review of all changes.

(C)

Changes in proposed conditions of approval. Proposed changes in conditions of approval may be considered by the approving body without referral of the application back to the ordinance administrator or board of planning and adjustment, as applicable.

(A)

Submission of request. Any request for withdrawal of an application subject to a public hearing shall be submitted in writing to the ordinance administrator, or shall be made through a verbal request at the public hearing for which the application has been scheduled.

(B)

Prior to notice of public hearing. The ordinance administrator shall approve a request for withdrawal of an application if it has been submitted prior to public notification.

(C)

Subsequent to notice of public hearing. If the request for withdrawal of an application is submitted subsequent to public notification, the request for withdrawal shall be placed on the agenda of the meeting at which the hearing is scheduled and acted upon by the decision-making body.

(D)

Refund of required fees. Fees shall not be refunded for applications that are withdrawn following publication, posting and/or mailing of required notices.

No more than two withdrawals of the same type of application for the same property may be filed within any single 12 month period. No similar type of application may be filed for the same property within one year following the second withdrawal by the applicant or denial of the application by the applicable decision-making body.

Expiration of approval shall occur as provided by this Ordinance for the various types of development permits and approvals. If no provision for expiration is given by this ordinance for a particular type of development permit or approval, and if no expiration period is imposed as part of an approval by the decision-making body, expiration shall occur if development is not commenced or a subsequent permit authorized by that approval is not obtained within one year.

At any time, upon reasonable request and during normal business hours, any person may examine an application, a finalized staff report and materials submitted in support an application. Copies of such materials shall be made available at cost.

The purpose of this section is to provide a uniform method for amending the official zoning map.

(A)

Preliminary procedures. The preliminary procedures and requirements for submission and review of an application are established in section 2.3, Common Review Procedures.

(B)

Review by ordinance administrator. Prior to the submission of the application to the board of planning and adjustment, the ordinance administrator shall review the application and prepare a written staff report, which shall be presented to the board of planning and adjustment.

(C)

Review and recommendation by the board of planning and adjustment. Following review of the application by the ordinance administrator, the application shall be forwarded to the board of planning and adjustment for its review and recommendation. The board of planning and adjustment shall consider the application, relevant supporting materials and the staff report. Within 45 days of its initial consideration of an application, the board of planning and adjustment shall make a written recommendation to the town council. In making its recommendation, the board of planning and adjustment shall adopt a written statement regarding the consistency of the proposed amendment with all relevant adopted plans.

(D)

Review and action by town council. Following the receipt of a recommendation from the board of planning and adjustment, the town council shall hold a public hearing to review and consider the application, relevant supporting materials, staff report, recommendation of the board of planning and adjustment and the comments made during the hearing. Following the close of the public hearing, the town council shall take one of the following actions:

(1)

Approve the amendment as requested.

(2)

Approve the amendment with a reduction in size of the area subject to the amendment.

(3)

Approve the amendment with a less dense / intense zoning district.

(4)

Deny the amendment.

(5)

Remand the application to the board of planning and adjustment for further consideration.

Regardless of the final decision rendered, the town council shall adopt a written statement regarding the consistency of the proposed amendment with all relevant adopted plans and a separate statement analyzing whether the proposed amendment is reasonable and in the public interest. Both statements may be adopted as part of the motion taking final action on the proposed amendment.

Where a zoning map amendment has been proposed to adopt a conditional zoning district, the following additional procedures shall apply.

(A)

Qualified applications. Applications for conditional zoning district map amendments may only be considered where such application has been signed by each owner of the property subject to the proposed zoning map amendment.

(B)

Conditions on use and development. The applicant shall submit a concept plan and written list of all proposed conditions on the use or development of the property subject to the conditional zoning district map amendment as part of the application. Where only use restrictions, general limitations on density or the number of dwelling units, or a similar requirement that is not dependent on a specific development plan is proposed, a concept plan shall not be required, but may be submitted if desired. The concept plan and all written conditions shall serve as the basis for future development of the property subject to the approved conditional zoning district ordinance.

(C)

Review and approval of conditions.

(1)

Board of planning and adjustment. In its review of the proposed conditional zoning district map amendment, the board of planning and adjustment may propose modifications to the concept plan and/or list of conditions, as it may find reasonable and in the public interest. Modifications to the submitted concept plan and/or list of proposed conditions shall be reduced to writing and forwarded to the town council with the board's recommendation on the proposed amendment.

(2)

Town council. The town council shall consider the proposed use and development conditions, the concept plan and any proposed additions or modifications forwarded by the board of planning and adjustment as part of its deliberations following the public hearing on the proposed amendment. The town council may propose modifications to the concept plan and/or list of conditions as it finds reasonable and in the public interest. All conditions or modifications to the submitted concept plan, whether proposed by the applicant or town council, shall be reduced to writing and included as part of the ordinance amending the official zoning map.

(3)

Applicability of conditions. Only those conditions that are mutually agreed to by the town council and the applicant shall become binding on the applicant and their successors in interest. Any additionally imposed conditions or modifications to the concept plan shall be agreed to by the applicant prior to the adoption of the ordinance amending the official zoning map to the conditional zoning district.

(D)

Use and development following approval. All use and development of a property subject to an approved conditional zoning district shall be in accordance with the approved conditions and concept plan, in addition to the other standards of the UDO not modified by the conditional zoning district. The approval of a conditional zoning district does not abrogate the requirement to obtain all other development approvals as required by this ordinance, including, but not limited to, site plan, subdivision and zoning permit approval.

(E)

Modification. An approved conditional zoning district may only be modified in accordance with the procedures set forth for its original approval, including submission of a concept plan where changes to the physical layout of the subject property, density, or similar physical changes are proposed. In other cases, such as amending the permitted uses on a site, a concept plan shall not be required as part of a modification application.

The purpose of this section is to provide a uniform method for amending the text of the UDO.

The town council may adopt amendments to the text of the UDO only in accordance with the provisions of this section.

(A)

Preliminary procedures. The procedures and requirements for submission and review of an application are established in section 2.3, Common Review Procedures.

(B)

Review by ordinance administrator. Prior to the submission of the application to the board of planning and adjustment, the ordinance administrator shall review the application and prepare a written staff report, which shall be presented to the board of planning and adjustment.

(C)

Review and recommendation by board of planning and adjustment. Following review of the application by the ordinance administrator, the application shall be forwarded to the board of planning and adjustment for its review and recommendation. During the meeting the board of planning and adjustment shall consider the application, relevant supporting materials and the staff report. Within 45 days of its initial consideration of an application, the board of planning and adjustment shall make a written recommendation to the town council. In making its recommendation, the board shall adopt a written statement regarding the consistency of the proposed amendment with all relevant adopted plans.

(D)

Review and action by town council. Following the receipt of a recommendation from the board of planning and adjustment, the town council shall conduct a public hearing to review and consider the application, the relevant supporting materials, staff report, recommendation of the board of planning and adjustment, and the comments made during the hearing. Following the close of the public hearing, the town council shall take one of the following actions:

(1)

Approve the amendment as proposed.

(2)

Approve a revised amendment that is no more restrictive in scope than proposed in the application.

(3)

Remand the application to the board of planning and adjustment for further consideration.

(4)

Deny the proposed amendment.

Regardless of the final decision rendered, the town council adopt a written statement regarding the consistency of the proposed amendment with all relevant adopted plans.

Special uses are land uses that due to their particular nature, require individual review of their location, design, configuration, density or intensity of use and may require the imposition of conditions to ensure the compatibility of the use with the surrounding area.

Application for a special use permit may only be initiated by the owner(s) of the property for which the special use permit is designated.

(A)

Preliminary procedures. The preliminary procedures and requirements for submission and review of a special use permit application are established in section 3.1, Common Review Procedures.

(B)

Concept plan required. A concept plan shall be submitted as part of the application for a special use permit.

(C)

Action by board of planning and adjustment. The board of planning and adjustment shall hold a quasi-judicial hearing on the application. At the hearing, the board shall consider the application, the relevant supporting materials, the concept plan and all other testimony and evidence presented at the hearing. After the close of the hearing, the board shall, in consideration of the evidence and testimony presented, make findings of fact and either approve, approve with conditions, or deny the application based upon the results of the Board's findings with regard to the requirements of subsection 2.6.3(D).

(D)

Required findings. In order to approve a proposed special use permit application, the board of planning and adjustment must make the following affirmative findings:

(1)

That the proposed use will not materially endanger the health, safety or general welfare of persons residing or working in the vicinity.

(2)

That the proposed use and associated development is in compliance with all applicable standards of the ordinance.

(3)

That the proposed use and associated development is compatible with the character of surrounding property, including but not limited to the scale and intensity of the use, parking requirements, traffic generation and the size and location of buildings.

(4)

That the proposed use and associated development is in full compliance with all other relevant town ordinances, state and federal laws, and regulations.

(E)

Conditions of approval. In approving a special use permit, the board of planning and adjustment may impose additional conditions on the permit approval in accordance with G.S. § 160D-705(c). Any additional conditions imposed by the board must be agreed to in writing by the applicant prior to the granting of the special use permit.

(F)

Effect of approval. The issuance of a special use permit shall authorize only the particular special use that is approved in the permit. all subsequent development and use of the property must be in accordance with the approved special use permit, associated concept plan and conditions (if applicable), and all other relevant standards of the UDO. Nothing in this subsection shall prevent the establishment of a different permitted use of land, provided such use is established in accordance with the requirements in this ordinance.

(G)

Subsequent development. Development authorized by the special use permit shall not be carried out until the applicant has secured all other permits required by this ordinance and other applicable laws, ordinances and regulations. A special use permit does not ensure that the applicant will receive subsequent approvals unless the relevant and applicable portions of this ordinance and other applicable laws, ordinances, and regulations are met.

(H)

Expiration of approval.

(1)

General. The board of planning and adjustment may prescribe a time limit within which the use shall be established, development activity shall begin or be completed under the special use permit, or both. Failure to establish the use, to begin or complete such development activity within the time limit specified shall void the special use permit. unless otherwise specified by the board of planning and adjustment, a special use permit shall automatically expire two years from the date of its issuance if:

i.

The use is not established;

ii.

Development authorized by the permit has not commenced, and no substantial construction, alteration, demolition, excavation or other similar work required by the permit is completed; or

iii.

Development approved by the special use permit is discontinued and not resumed for a period of one year.

(2)

Extension. Upon written application submitted at least 30 days prior to the expiration of the permit, and upon a showing of good cause, the board of planning and adjustment may grant one extension, for a period not to exceed six months. Failure to submit an application for an extension within the time limits established by this subsection shall result in the expiration of the special use permit.

(I)

Minor deviation. Minor field alterations or minor revisions to approved special use permits may be approved by the ordinance administrator if the resulting development still meets the intent of the standards and any conditions established with the original approval. Minor field alterations and revisions include, but are not limited to, small shifts in the location of structures, parking areas, landscaping, utilities, driveways and other site features in order to accommodate the existence of circumstances found during construction that could not have been anticipated in advance. Any other change shall be considered as an amendment and shall require approval by the board of planning and adjustment in accordance with subsection (K) below.

(J)

Amendment. A special use permit may be amended or modified only in accordance with the procedures and standards established for its original approval.

The purpose of a variance is to allow the standards of this ordinance to be varied when unnecessary hardships would result from carrying out the strict letter of the Ordinance upon a showing by the property owner that the findings required by subsection 2.7.3(C) have been met.

Application for a Variance may only be initiated by the owner(s) of the property to which the Variance will apply.

(A)

Preliminary procedures. The preliminary procedures and requirements for submission and review of an application are established in section 2.3, Common Review Procedures.

(B)

Action by board of planning and adjustment. The board of planning and adjustment shall hold a quasi-judicial hearing on the application. At the hearing, the board of planning and adjustment shall consider the application, the relevant supporting materials and the evidence and sworn testimony given at the hearing. Following the close of the hearing, the board of planning and adjustment shall approve, approve with conditions, or deny the application based on the standards in subsection 2.7.3(C), Required Findings.

(C)

Required findings. The board of planning and adjustment may only grant a variance after having first made all of the following affirmative findings in accordance with G.S. § 160D-705(d):

(1)

Unnecessary hardship would result from the strict application of the ordinance. It shall not be necessary to demonstrate that, in the absence of a variance, no reasonable use can be made of the property; and

(2)

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; and

(3)

The hardship did not result from actions taken by 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; and

(4)

The requested variance is consistent with the spirit, purpose and intent of this ordinance; such that public safety is secured and substantial justice is achieved.

(D)

Conditions of approval. In approving a variance, the board of planning and adjustment may impose additional conditions on the variance, provided that the conditions are reasonably related to the variance and agreed to in writing by the applicant.

(E)

Subsequent development. Development authorized by the variance shall not be carried out until the applicant has secured all other permits and approvals as required by this ordinance and other applicable laws, ordinances and regulations. A Variance does not ensure that the use will receive subsequent permit approvals unless the relevant and applicable requirements of this ordinance and other applicable laws, ordinances and regulations are met.

The purpose of this section is to establish a procedure for the review of a concept plan by the ordinance administrator prior to the submittal of an application for the approval of certain amendments and technical plans as set forth in subsection 2.8.2. The intent of the concept plan procedure is to allow the town to consider the general design and configuration of a proposed development for general compliance with the requirements of this ordinance prior to the preparation of detailed plans or initiation of a hearing process.

Submittal of a concept plan shall be required prior to the consideration of a zoning map amendment to a conditional zoning district (as applicable), site plan, architectural design plan, preliminary subdivision plat or special use permit.

(A)

Preliminary procedures. The preliminary procedures for submission and review of a concept plan are established in section 2.3, Common Review Procedures.

(B)

Concept plan—Site plan or subdivision preliminary plat. In the case of a concept plan submitted for review in association with a site plan or preliminary subdivision plat, the ordinance administrator, with assistance from the TRC, shall review the concept plan for compliance with the applicable standards of the ordinance. Following his review, he shall submit his comments in writing to the applicant, who may then begin the preparation of the site plan or preliminary subdivision plat.

(C)

Concept Plan—Architectural design plan. In the case of a concept plan submitted for review in association with an architectural design plan, the ordinance administrator shall review the concept plan for compliance with the applicable standards set forth in the ordinance. Following his review, he shall submit his comments in writing to the applicant, who may then begin the preparation of the architectural design plan.

(D)

Concept plan—Conditional zoning district. In the case of a Concept Plan submitted for a Zoning Map Amendment to a Conditional Zoning district, the ordinance administrator, with assistance from the TRC, shall review the concept plan for compliance with the applicable standards set forth in this ordinance along with any conditions proposed by the applicant. Following his review, the ordinance administrator shall submit his comments to the applicant who shall have the opportunity to revise the plan prior to its submission for formal review by the board of planning and adjustment and consideration by the town council.

(E)

Concept plan—Special use permit. In the case of a concept plan submitted in association with an application for a special use permit, the ordinance administrator, with assistance from the TRC, shall review the concept plan for compliance with the applicable standards of the ordinance and submit his findings during the hearing before the board of planning and adjustment for consideration of the special use permit.

The purpose of this section is to establish the procedures and standards for the review and approval of a site plan that depicts site and building related details and engineered drawings.

All development, unless exempted in accordance with subsection 2.9.3, exemptions, shall be required to have a site plan approved in accordance with this section prior to the issuance of a zoning permit.

The following development activity shall be exempted from the requirements of this section:

(A)

Internal construction that does not increase gross floor area, building height, the density or intensity of use, or affect parking requirements;

(B)

The construction of a single-family dwelling or two-family dwelling on an individual lot;

(C)

The construction or placement of an accessory structure associated with a single-family or two-family dwelling; and

(D)

Changes in use where there is no associated change in landscaping, buffering, off street parking requirements, lot coverage or other external site characteristics.

(A)

Preliminary procedures. The preliminary procedures and requirements for submission and review of a site plan are established in section 2.3, Common Review Procedures.

(B)

Review of concept plan. The review of a concept plan, in accordance with section 2.8, shall be required prior to the consideration of a site plan.

(C)

Review and approval by ordinance administrator. Following the review of a required concept plan, the applicant shall prepare a site plan. The ordinance administrator, with the assistance of the TRC, shall review the site plan for conformance with the standards set forth in subsection 2.9.4(D). If the site plan is found to be in compliance with subsection 2.9.4(D), the ordinance administrator shall approve the plan. If the plan is found to not be in compliance with subsection 2.9.4(D), the ordinance administrator shall deny approval of the site plan and submit such reasons for denial to the applicant, who shall be given the opportunity to resubmit the site plan for a second review. If the site plan remains out of compliance following the second review, the ordinance administrator shall deny approval of the site plan and submit such reasons for denial to the applicant in writing. Subsequent submissions of a site plan for review following the second submittal and denial shall require the payment of the review fee as prescribed for the initial review of a site plan prior to consideration by the ordinance administrator.

(D)

Site plan standards. A site plan shall be approved only upon a finding that it adequately depicts the precise design, location and profile of all structures, site features and public facilities proposed for development, and that said improvements comply with all relevant standards established by this ordinance, as well as all other applicable rules, regulations and ordinances of any local, state or federal agency having jurisdiction over an aspect of the proposed development.

(E)

Effect of approval. The approval of a site plan allows the applicant to apply for a zoning permit to initiate land development activities in accordance with the approved site plan.

(F)

Expiration. Site plan approval shall automatically expire one year following initial approval if a building permit has not been issued and construction pursuant to that permit has not commenced for at least one (structure in the proposed development. A change in ownership shall not affect this time limit.

(G)

Amendments. A site plan may be amended or modified only in accordance with the procedures and standards established for its original approval.

An architectural design plan is required in order to ensure that all proposed development activity subject to architectural design standards established in this ordinance complies with said standards prior to the initiation of development activity.

The requirement for the approval of an architectural design plan shall apply to the construction, reconstruction, expansion or exterior alteration of any building or structure that is subject to architectural design standards established in the UDO.

(A)

Preliminary procedures. The preliminary procedures and requirements for submission and review of a site plan are established in section 2.3, Common Review Procedures.

(B)

Simultaneous review. Architectural design plans shall be reviewed simultaneously with site plans in those circumstances where both are required.

(C)

Review of concept plan. The review of a concept plan, in accordance with section 2.8, shall be required prior to the consideration of an architectural design plan.

(D)

Review and approval by ordinance administrator. Following the review of a required concept plan, the applicant shall prepare an architectural design plan. The ordinance administrator shall review the plan for conformance with the standards set forth in subsection 2.10.3(E). If the architectural design plan is found to be in compliance with subsection 2.10.3(E), the ordinance administrator shall approve the plan. If the plan is found to not be in compliance with subsection 2.10.3(E), the ordinance administrator shall deny approval of the architectural design plan and submit such reasons for denial to the applicant, who shall be given the opportunity to resubmit the architectural design plan for a second review. If the site plan remains out of compliance following the second review, the ordinance administrator shall deny approval of the site plan and submit such reasons for denial to the applicant in writing. Subsequent submissions of an architectural design plan for review following the second submittal and denial shall require the payment of the fee as prescribed for the initial review of an architectural design plan prior to its consideration by the ordinance administrator.

(E)

Architectural design plan standards. An architectural design plan shall only be approved if it is found to be in compliance with the applicable architectural design requirements as established in this ordinance.

(F)

Effect of approval. The approval of an architectural design plan allows the applicant to apply for a zoning permit to initiate land development activities in accordance with the approved architectural design plan.

(G)

Expiration. The approval of an architectural design plan shall expire two years following its approval if a building permit has not been issued for at least one structure in the proposed development and construction has not begun within one year of the issuance of a building permit.

(H)

Amendments. An architectural design plan may be amended or modified only in accordance with the procedures and standards established for its original approval. Minor field alterations may be approved at the discretion of the ordinance administrator where such minor modifications will not affect the overall appearance of the structure.

The purpose of this section is to establish uniform standards for the subdivision of land within the jurisdiction of the Town of Boiling Springs.

Unless exempted in accordance with subsection 2.11.3, Exemptions, all divisions of land or other actions that result in the establishment or relocation of property or right-of-way lines shall be subject to these regulations.

The following are statutorily exempt from the requirements of this Section:

(A)

The combination or recombination of portions of previously subdivided and recorded lots where the total number of lots is not increased and where the resultant lots are equal to or exceed the standards established in this ordinance.

(B)

The acquisition or purchase of land for the widening or opening of public streets, transportation system corridors, utilities or the establishment of park land or greenway trails.

(C)

The division of land into parcels greater than ten acres in size where no street right-of-way dedication is involved.

(D)

The division of a tract in single ownership whose entire area is not greater than two acres into not more than three lots, where no street right-of-way dedication is involved and where the resultant lots are equal to or exceed the standards established in this ordinance.

(E)

The division of a tract into parcels in accordance with the terms of a probated will or in accordance with intestate succession under G.S. ch. 29.

Plats for subdivisions which are exempt from the requirements of this section shall be submitted to the ordinance administrator who shall sign a certificate of exemption on the plat. This certificate must be signed prior to recordation of the exempt subdivision plat with the Cleveland County Register of Deeds.

In order to provide for the expedited review of certain non-exempt subdivisions, there shall be two classes of subdivisions with separate review and approval procedures for each class.

(A)

Major subdivisions. A subdivision shall be classified as a major subdivision whenever any of the following apply:

(1)

More than five lots will be created as a result of the subdivision;

(2)

The creation of new street right-of-way is required;

(3)

The alteration of an existing street right-of-way is required;

(4)

Public water and sewer line extension are required.

(B)

Minor subdivisions. All proposed subdivisions that are not classified as a major subdivision shall be classified as a minor subdivision, unless qualified as an expedited minor subdivision in (C) below.

(C)

Expedited minor subdivision. Minor subdivisions which meet the criteria below shall qualify for expedited review, and only a plat shall be required for their review and approval. The criteria, as set forth in G.S. 160D-802(b) are:

(1)

The tract or parcel to be divided is/was not exempted according to the definition of a Subdivision;

(2)

No part of the tract or parcel to be divided has been divided under this subsection in the ten years prior to division;

(3)

The entire area of the tract or parcel to be divided is greater than five acres;

(4)

After division, no more than three lots result from the division; and

(5)

After division, all resultant lots comply with all of the following:

i.

All lot dimension size requirements of the applicable land use regulations, if any.

ii.

The use of the lots is in conformity with applicable zoning requirements, if any.

iii.

A permanent means of ingress and egress is recorded for each lot through a private access easement in compliance with the Ordinance.

(A)

Preliminary procedures. The preliminary procedures and requirements for submission and review of a major subdivision are established in section 2.3, Common Review Procedures.

(B)

Preliminary subdivision plat.

(1)

General. A preliminary plat establishes the layout and design of a proposed subdivision. Upon the approval of a preliminary plat, applicants may prepare construction plans for review and approval. following construction plan approval, the developer may install streets, utilities and other required infrastructure. Following the installation and approval of all required infrastructure, applicants may submit an application for a final subdivision plat. Building permits for newly created lots may not be issued prior to the approval and recordation of a final subdivision plat.

(2)

Review of concept plan. The review of a concept plan, in accordance with section 2.8, shall be required prior to the consideration of a preliminary subdivision plat.

(3)

Preliminary plat content standards. The required contents of preliminary subdivision plats are established in appendix B.

(4)

Review by ordinance administrator. Following the review of a concept plan, the applicant shall prepare a preliminary subdivision plat that reflects the configuration depicted in the finalized concept plan along with any other required information. Once the complete application and preliminary plat are submitted, the ordinance administrator, with the assistance of the TRC, shall review the submitted preliminary plat for compliance with the standards for approval. If the proposed preliminary plat is determined to be consistent with the concept plan and meet all applicable ordinance standards, the preliminary plat will be forwarded to the board of planning and adjustment for its review and approval. If the proposed preliminary plat is found not to be in compliance, such reasons shall be given in writing to the applicant, who may resubmit the preliminary plat for review after making such amendments as necessary.

(5)

Review and approval by board. Upon receipt of a preliminary plat, the board of planning and adjustment shall review the proposed plat for compliance with the standards of this ordinance, and shall, within 45 days of its initial review, either approve or deny approval of the preliminary plat. If approval is denied, the board of planning and adjustment shall state such reasons for denial in writing. Appeals from a decision of the board of planning and adjustment shall be subject to the provisions of G.S. § 160D-1403(b).

(6)

Standards for approval. A preliminary subdivision plat shall only be approved upon finding that the application complies with the standards in article 9, Subdivision Regulations, all other relevant standards and regulations established by this Ordinance, and all other applicable laws, ordinances and regulations.

(7)

Effect of approval. Approval of a preliminary plat shall constitute approval of the development with the general lot shapes and alignments of streets as depicted on the approved preliminary plat. Approval of a preliminary plat allows the developer to proceed with the preparation of construction plans for the installation of the required infrastructure and utilities. Approval of a preliminary plat does not constitute or guarantee approval of a final plat. The approval of a preliminary plat is not a personal right, but one which runs with the land, and, therefore, changes in ownership of the subject property shall not alter the effect of the approval.

(8)

Amendment. A preliminary subdivision plat may be amended or modified only in accordance with the procedures and standards established for its original approval.

(9)

Expiration of approval.

i.

Preliminary subdivision plat approval shall expire if a final subdivision plat for at least one phase of the subdivision has not been approved within 24 months following its approval.

ii.

Preliminary subdivision plats may depict a phasing plan that allows for the incremental development of smaller portions of the overall subdivision. Where phasing is depicted on the approved preliminary subdivision plat, expiration shall occur if final subdivision plat approval is not received for the initial phase of the subdivision within 24 months of preliminary subdivision plat approval, provided that the initial phase of the subdivision contains at least 20 percent of the number of approved lots in the subdivision. Subsequent phases, each containing at least 20 percent of the overall number of approved lots in the subdivision, shall be required to receive final subdivision plat approval at intervals not to exceed 24 months; otherwise, expiration of the preliminary subdivision plat will occur.

iii.

Preliminary subdivision plats which have expired are required to be resubmitted in accordance with the provisions of this section.

(C)

Construction and inspection of required improvements.

(1)

Approval of construction plans. Construction plans shall be reviewed and approved by the town engineer prior to the initiation of development activity or the installation of any required improvements. Construction plans shall depict the specific improvements to be constructed in sufficient detail as to allow the town engineer to verify their compliance with the standard specifications for town infrastructure. In the case of infrastructure that is required for installation, but which is under the jurisdiction of another entity, the town engineer shall certify that plans for such improvements have been approved by the respective entities having jurisdiction over them.

(2)

Inspection of improvements. Following the construction of all required improvements, the developer shall submit a written request for inspection of those improvements. When all required public improvements have been inspected and approved by the town, the developer may apply for final subdivision plat approval.

(3)

As-built plans required. The subdivider shall provide as-built plans of all installed infrastructure to the Town of Boiling Springs or other agency receiving the installed infrastructure. Plans shall be submitted in reproducible hard-copy format, as well as AutoCAD and ArcGIS compatible formats.

(4)

Improvement agreements. In lieu of completing required infrastructure improvements, the developer may provide a financial guarantee to the town in accordance with the following standards.

i.

Financial guarantees for infrastructure improvements shall be provided in an amount equal to 125 percent of the estimated costs of such improvements as remain to be completed. The estimated cost of the improvements shall be prepared by a registered professional engineer and approved by the Town's engineer.

ii.

The town council shall be required to vote to approve the acceptance of all improvement agreements. All such agreements shall be in writing and shall provide itemized lists of the required improvements and costs for each.

iii.

Any form of financial guarantee provided for in statute may be provided by the developer to the town.

iv.

No more than 20 percent of the total number of lots within a subdivision may be subject to an improvement guarantee at one time. Subdivisions consisting of 20 or fewer lots are exempt from this threshold.

v.

The initial term of an improvement guarantee shall be for one year. This may be extended upon application by the developer to the town council for such additional extensions as are necessary to complete the improvements. The town council shall grant such extensions unless the developer has not made reasonable, good faith, progress toward the completion of the improvements. The amount of funds guaranteed under any extension shall only be for the amount necessary to complete the remaining improvements.

vi.

Upon the completion and acceptance of improvements by the town, the developer may petition the town council to release that portion of the funds equal to the amount that was estimated to be required for their installation.

vii.

If a developer fails to make reasonable good faith progress toward the completion of the required improvements, the ordinance administrator shall request that the town council find the developer to be in default under the terms specified in the agreement. If the town council finds the developer to be in default, the funds subject to the guarantee shall be utilized by the town to complete the required improvements. Any funds remaining following the completion of the improvements shall be returned to the developer.

viii.

Following the completion and acceptance of all improvements subject to an improvement agreement, the town council shall release all remaining amounts held to the developer.

(5)

Warranty of installed public improvements and infrastructure. All public improvements and infrastructure installed in a subdivision shall be guaranteed to be free of defects at the time of acceptance by the town. The developer shall guarantee the improvements for a period of three years, beginning on the date of acceptance of the improvements by the town, against any defects in the equipment and materials used or defects in construction in any and all public improvements or infrastructure. If any defect is found during the warranty period following acceptance by the Town, the developer, or his successor, shall make the required repair to bring the defective infrastructure to town standards, or, shall provide funds to the town in the amount required for the town to complete the repair.

(D)

Final subdivision plat.

(1)

General. The final subdivision plat approval process is used to finalize the approval of subdivisions for which a preliminary subdivision plat was required.

(2)

Required contents of final plat. The required contents of a final subdivision plat are established in appendix B.

(3)

Review and approval procedures.

i.

Preliminary procedures. The preliminary procedures and requirements for submission and review of a final subdivision plat are established in section 2.3, Common Review Procedures.

ii.

Review and approval by ordinance administrator. Following the submission of a complete application for final subdivision plat approval, the ordinance administrator, with assistance from the TRC, shall review the application. If the final subdivision plat application is found to comply with all applicable ordinance standards the ordinance administrator shall approve the final subdivision plat.

(4)

Standards for approval. A final subdivision plat shall only be approved if the ordinance administrator finds the following:

i.

The final subdivision plat complies fully with the standards in article 9, Subdivision Regulations;

ii.

The final subdivision plat is in substantial conformance with the approved preliminary subdivision plat;

iii.

The final subdivision plat indicates the installation and acceptance of all required improvements or a financial guarantee has been provided to ensure their completion; and

iv.

The final subdivision plat contains all required certificates, signed by the appropriate entities.

(5)

Certification. No final subdivision plat may be approved or recorded unless all relevant certificates, as identified in appendix B, have been signed by the appropriate officials.

(6)

Recordation. Following approval, the developer shall file the final subdivision plat with the Cleveland County Register of Deeds, and shall provide proof of recordation to the ordinance administrator within 30 days of the date of approval.

(A)

Preliminary procedures. The preliminary procedures and requirements for submission and review of a minor subdivision plat are established in section 2.3, Common Review Procedures.

(B)

Review and approval by ordinance administrator. Following the submission of a complete application for minor subdivision approval (including the required information for a final plat as shown in appendix B), the ordinance administrator shall review the application. If the minor subdivision application is found to comply with the standards set forth in subsection 2.11.6(C), the ordinance administrator shall approve the minor subdivision plat.

(C)

Standards for approval. A minor subdivision plat shall only be approved if the ordinance administrator finds the following:

(1)

The minor subdivision plat complies fully with the standards in article 9, Subdivision Regulations; and

(2)

The minor subdivision Plat contains all required certificates, signed by the appropriate entities.

(D)

Certification. No minor subdivision plat may be approved or recorded unless all relevant certificates, as identified in appendix B, have been signed by the appropriate officials.

(E)

Recordation. Following approval, the subdivider shall file the minor subdivision plat with the Cleveland County Register of Deeds, and shall provide proof of recordation to the ordinance administrator within thirty (30) days of the date of approval.

A zoning permit shall be required in accordance with the provisions of this section in order to ensure that proposed development and land use activity complies with the standards of this ordinance, and to otherwise protect the health, safety, and welfare of the residents of the town.

The provisions of this section shall be applicable to all development and other land use activity within the town's jurisdiction. No activity subject to regulation by this ordinance, including any land development, building or construction activity (including demolition), architectural changes to existing structures subject to the downtown design overlay district regulations, or the change or expansion of any use of land or buildings may commence prior to the issuance of a zoning permit in accordance with this section.

(A)

Preliminary procedures. The preliminary procedures and requirements for submission and review of a zoning permit application are established in section 2.3, Common Review Procedures.

(B)

Review and action by ordinance administrator. The ordinance administrator shall review and approve, or deny, an application for a zoning permit in accordance with the standards in subsection 2.12.3(C), Zoning Permit Standards. If the application is denied, the reasons for denial shall be provided to the applicant in writing.

(C)

Zoning permit standards. A zoning permit shall be approved upon a finding by the ordinance administrator that the application fully complies with all relevant standards of this ordinance, as well as all other applicable town requirements and applicable conditions of approval if any were imposed as part of a preceding approval for the proposed development.

(D)

Expiration. Zoning permits shall expire if, within one year following the approval of the zoning permit, the activity authorized by the permit does not commence or a building permit is not issued.

The purpose of this section is to implement the provisions [of] G.S. § 160D-801.1 for the establishment of a statutory zoning vested right upon the approval of a site-specific vesting plan.

A statutory vested right shall only be available to a property owner with a legally established and approved site-specific vesting plan. For the purposes of this subsection, a site-specific vesting plan shall include the following:

(A)

Development subject to an approved special use permit.

(B)

Development subject to an approved preliminary subdivision plat.

(C)

Development subject to an approved site plan.

(A)

Preliminary procedures. The preliminary procedures and requirements for submission and review of an application are established in section 2.3, Common Review Procedures.

(B)

Review by ordinance administrator. Following the receipt of a complete application for the establishment of vested rights, the ordinance administrator shall review the application for compliance with the applicable standards for the establishment of vested rights set forth in this ordinance and by the North Carolina General Statutes. In his staff report he shall comment on the eligibility of the application for approval based on those standards and recommend either concurrence with the proposed length of vesting that is requested or recommend an alternate period of vesting based on the type and scope of the project.

(C)

Review and decision by town council. The town council shall hold a public hearing on the application, with due notice given in accordance with the requirements for a public hearing for a zoning map amendment. Following the public hearing, the town council shall consider the application, the relevant supporting materials, staff report and the comments made at the public hearing and shall vote to approve, or deny the application based on the standards in subsection 2.14.3(D), Vested Rights Standards. In the event the application is approved, the town council shall establish the vesting period as described in subsection 2.14.3(E).

(D)

Vested rights standards. The town council shall only grant a vested right in accordance with this section after making the following findings of fact:

(1)

The site-specific vesting plan was lawfully established and approved in the appropriate manner by the appropriate decision-making body;

(2)

The site-specific vesting plan has not expired;

(3)

All required variances, if any, included as a condition of the approval of a site-specific vesting plan have been obtained; and

(4)

The site-specific vesting plan provides sufficient information to establish the types and intensity of proposed development with reasonable certainty.

(E)

Period of vesting. In approving the establishment of vested rights, the town council may approve a period of vesting of not less than two and not more than five years, where warranted in light of all relevant circumstances, including, but not limited to, the size and phasing of the proposed development, the level of financial investment, economic cycles, and market conditions.