( Ord. No. 2021-16 , § 1(Exh. A), 4-19-21)

Effective on: 1/1/1901

( Ord. No. 2021-16 , § 1(Exh. A), 4-19-21)

Effective on: 1/1/1901

( Ord. No. 2021-16 , § 1(Exh. A), 4-19-21)

Effective on: 1/1/1901

( Ord. No. 2021-16 , § 1(Exh. A), 4-19-21; Ord. No. 2025-52, § 1(Exh. A), 11-3-25)

Effective on: 11/3/2025

4. D.
   In addition to any findings that may be otherwise required by this chapter, the approving authority shall only approve a land development application upon determination that the application meets the following requirements:

   1. 1.
      All applicable requirements of this ordinance and Brevard City Code are satisfied.
   2. 2.
      All other applicable federal, state, and local requirements and plans are satisfied.
   3. 3.
      All applicable policies and plans of the City of Brevard are satisfied.
   4. 4.
      All required system development fees, performance guarantees, or other dedications have been or will be secured.
   5. 5.
      Approval of the application will not otherwise endanger the health, safety, or welfare of the public.
   6. 6.
      The applicant agrees to adhere to all reasonable conditions and requirements imposed in accordance with this chapter.
5. E.
   The approving authority shall consider impacts upon traffic conditions, public safety, public infrastructure and services, and other relevant factors, including any proposed project's likely effect on the public health or safety in determining whether to approve or reject any land development application, and may impose such reasonable conditions as are allowed under G.S. 160D noting the applicable approval process. Findings as to such factors made by any reviewing entity shall not bind the city officer, committee, board, or council acting as the approving authority, which shall consider such factors de novo.
6. F.
   If the administrator or approving authority requires the application to be reviewed by the technical review committee (TRC) in accordance with Section 15.1, its members shall provide written comments to the planning director within 15 days of having received notification from the planning director of a land development application requiring their review, unless otherwise stated in this Chapter.
7. G.
   A permit or development approval shall be in writing, and may be issued in print or electronic form pursuant to G.S. 160D-403. Any permit or approval issued exclusively in electronic form shall be protected from further editing once issued. The permit or approval may contain a provision that the development shall comply with all applicable state and local laws. If an application is denied, the reasons for denial shall be stated in writing.
8. H.
   Typical procedures following issuance of land development permit:

   1. 1.
      Upon issuance of a land development permit, the applicant may proceed to the Transylvania County Health Department and/or Transylvania County Building Permitting and Enforcement for any necessary permits.
   2. 2.
      Upon creation of structural footers or the pouring of the first-floor slab of any building or structure, the applicant shall contact the administrator for a preliminary setback inspection. The administrator shall inspect for compliance with applicable dimensional requirements and shall issue preliminary setback approval or require modifications, as applicable.
   3. 3.
      Upon competition of all land development activity and the installation of all approved improvements the applicant shall contact the administrator to arrange for a final inspection. As authorized by G.S. 160D-403(e) and -1113, the administrator shall inspect for compliance with all applicable requirements of this ordinance and Brevard City Code. The administrator shall deny final inspection approval if full compliance with this ordinance and Brevard City Code, approved development plans, and all other requirements, is not observed. The administrator may issue conditional approval. Conditional approval shall be extended for a defined period of time and all conditions shall be clearly set forth in writing. The administrator may require the submission of final "as built" construction documents as a condition of final written approval.
   4. 4.
      Upon issuance of final approval by the administrator, the applicant shall contact the Transylvania County Building Inspection Department to request issuance of a certificate of occupancy in accordance with G.S. 160D-403(g).
   5. 5.
      The administrator shall, from time to time, inspect the building, structure, use, or other approved activity for continued compliance with this ordinance, Brevard City Code, the approved land development plan, and any other applicable requirement, and shall take such action as is necessary to ensure continued compliance, including any remedy as set forth in CHAPTER 18 of this ordinance.
9. I.
   Professional services: The administrator may secure the services of a qualified professional (e.g., licensed architect, attorney, engineer, landscape architect, arborist, surveyor, or planner) in the review of any application. 

   1. 1.
      Professional services purposes include but are not limited to: the review of floodplain development proposals, proposed infrastructure of stormwater systems, traffic impact analysis, specialized legal services, etc. 
   2. 2.
      The actual cost of professional services shall be the responsibility of the applicant. The applicant shall be informed in advance of the City’s intention to secure professional services. The applicant shall be provided with all reports generated by qualified professionals, and copies of all statements and receipts. The applicant shall reimburse the City for professional services expenditure prior to the issuance of a certificate of occupancy or final zoning / project approval.
10. J.
    Final zoning approval and certificate of occupancy:

    1. 1.
       No structure shall be used or occupied until final zoning approval has been issued by the City of Brevard and a certificate of occupancy has been issued by the Transylvania County Building Inspection Department pursuant to G.S. 160D-403(g). Such approval shall be issued with the presumption that the structure or portion of a structure is in compliance with Brevard City Code, all applicable provisions of this ordinance, any specific conditions and requirements of the city, and the information stated on the development permit.
    2. 2.
       A record of all final zoning approvals shall be kept on file in the office of the administrator, and a record of all certificates of occupancy shall be kept on file in the office of the Transylvania County Building Inspection Department. Copies shall be furnished, on request, to all interested parties.
    3. 3.
       If final zoning approval or a certificate of occupancy is denied, the reasons for such denial shall be specified in writing and provided to the applicant.
    4. 4.
       Where certain infrastructure elements have not been installed (i.e. landscaping due to time of year), a temporary final zoning approval may be issued by the administrator, and a final certificate of occupancy may be issued by Transylvania County with permission from the administrator.

     

11. K.
    Right of appeal:

    1. 1.
       If a request for a development permit is denied or if a ruling of the administrator is questioned, any aggrieved party may appeal such ruling to the board of adjustment (hereafter, "BOA") in accordance with this chapter and G.S. 160D-405.
    2. 2.
       Appeals of a ruling of the BPB, the BOA, or city council shall be heard by the Superior Court of Transylvania County. In accordance with G.S. 160D-1402, the aggrieved party may request a stay of execution or enforcement of the decision of the quasi-judicial board pending superior court review. If in the absence of a stay, an applicant proceeds with development, the person does so at his or her own risk.

(Ord. No. 2021-16 , § 1(Exh. A), 4-19-21, Ord. No. 2023-06, § 1(Exh. A), 2-6-23; Ord. No. 2023-34, § 1(Exh. A), 8-7-23; Ord. No. 2024-23, § 1(Exh. A), 6-3-24; Ord. No. 2025-52, § 1(Exh. A), 11-3-25)

Effective on: 11/3/2025

FIGURE 16.7A: REVIEW PROCEDURES FOR LEGISLATIVE DECISIONS

FIGURE 16.7A: REVIEW PROCEDURES FOR LEGISLATIVE DECISIONS

3. C.
   General procedures for amending development regulations. Before adopting amending, or repealing any ordinance or development regulation, the city council shall hold a legislative hearing pursuant to the procedures outlined below, in G.S. 160D Article 6, and in Sections 16.7.D, 16.7.E, and 16.7.F when applicable.

   1. 1.
      Application required. An adoption, amendment, or repeal of a development regulation may be initiated by the city council, the BPB, the planning department, the city manager, or any private citizen filing an application with the administrator.

      1. a.
         Applicants shall submit a description or narrative stating why the proposed amendment or conditional zoning district is requested.
      2. b.
         In accordance with G.S. 160D-601, no amendment to zoning regulations or a zoning map that down-zones property shall be initiated nor shall it be enforceable without the written consent of all property owners whose property is the subject of the down-zoning amendment, unless the down-zoning amendment is initiated by the city. For purposes of this section, "down-zoning" is defined by G.S. 160D-601(d).
      3. c.
         Amendments to zoning ordinances shall not be initiated, applicable or enforceable without consent of the owner with regard to buildings and uses for which either:

         1. i.
            Building permits have been issued pursuant to G.S. 160D-403 prior to the enactment of the ordinance making the change or changes so long as the permits remain valid and unexpired unrevoked pursuant to G.S. 160D-403, or
         2. ii.
            A vested right has been established and remains valid and unexpired pursuant to Section 16.10.
   2. 2.
      Administrative review procedure:

      1. a.
         The applicant shall submit the completed application, pursuant to Section 16.5, at least 60 calendar days prior to the meeting of the BPB at which the petition is to be heard. For urgent matters, the administrator may request the BPB to review the application at an earlier meeting if processing time permits.
      2. b.
         The administrator shall review and comment on the application and supporting materials in accordance with Section 16.6.
      3. c.
         The administrator shall forward the petition to the BPB for review and recommendation to the city council.
   3. 3.
      Brevard Planning Board review and comment: The BPB shall review and make recommendations to city council on any development regulations assigned to city council in Section 16.6.B, pursuant to G.S. 160D-604.

      1. a.
         All proposed amendments to the development regulations or zoning map shall be submitted to the BPB for review and comment. If no written report is received from the BPB within 30 days of referral of the amendment to that board, the city council may act on the amendment without the BPB report. The city council is not bound by the recommendations, if any, of the BPB.
      2. b.
         When conducting a review of proposed zoning text or map amendments, the BPB shall consider the Comprehensive Land Use Plan and other adopted plans and policies when making a recommendation and shall submit a consistency statement with their findings whether the application complies with the applicable plans.
      3. c.
         All recommendations shall be by majority vote.
      4. d.
         The BPB shall make one of the following recommendations with regard to a petition to amend the text of a development regulation:

         1. i.
            Adoption of the amendment as written;
         2. ii.
            Adoption of the amendment as revised by the BPB; or
         3. iii.
            Rejection of the amendment.
   4. 4.
      Notification requirements: A notice of the legislative hearing shall be published in a newspaper having general circulation in the city once a week, for two successive weeks, the first notice to be published not less than ten days nor more than 25 days prior to the date established for the hearing.
   5. 5.
      Citizen comments:

      1. a.
         Development regulations may from time to time be amended, supplemented, changed, modified, or repealed. Citizens shall be provided an opportunity to comment, in writing, upon such proposed amendment, modification, or repeal. No comment on or protest against any change in or amendments to a development regulation shall be valid or effective for the purposes of G.S. 160D-603 unless it be in the form of a written statement bearing the signatures of property owners. The statement shall be submitted to the city clerk at least one week prior to the date established for the legislative hearing on the proposed change or amendment. The city clerk shall deliver such written statement to city council.
      2. b.
         The city council may by ordinance require that all citizen comments be on a form prescribed and furnished by the city, and such form may prescribe any reasonable information deemed necessary to permit the city to determine sufficiency and accuracy of the commenters.
      3. c.
         A person who has signed a written statement may withdraw his or her name from the protest at any time prior to the vote on the proposed development regulation amendment.
   6. 6.
      Legislative hearing: Once the BPB has made a recommendation on an application for a text amendment or rezoning, the city council shall hold a legislative public hearing on the application. Due to the legislative nature of those applications for which council is the approving authority, council may choose to table, approve, approve with conditions, or deny such applications at its discretion. However, council shall approve, approve with conditions, or deny any land development application for which it is the approving authority by means of referral in accordance with Section 16.6.A within 90 days of having first considered such application. Legislative decisions for development regulations may be finally adopted, by affirmative simple majority vote, on the date on which the regulation is introduced. For purposes of this section, an application shall be deemed to have been introduced on the date the subject matter is first voted on by council.

      1. a.
         The city council shall consider the Comprehensive Land Use Plan and other adopted plans and policies when making a decision and must adopt a consistency statement indicating whether the application complies with the approved plans in accordance with G.S. 160D-605(a).
      2. b.
         A decision concerning a petition to amend the text of this ordinance shall be as follows:

         1. i.
            Adoption of the amendment as written;
         2. ii.
            Adoption of the amendment as revised by the BPB or by city council;
         3. iii.
            Rejection of the amendment;
         4. iv.
            Send the application back to the BPB for further study and consideration; or
         5. v.
            Call for additional public hearings on petitions brought before them.
      3. c.
         In the instance of a failure to vote by a member who is physically present in the council chamber, or who has withdrawn due to a conflict-of-interest without being excused by a majority vote of the remaining members present, the failure to vote shall not be included as an affirmative or negative vote.
   7. 7.
      Rehearing:

      1. a.
         An application for a rehearing shall be made in the same manner as provided for an original hearing within a period of 15 days after the date of the city council decision.
      2. b.
         Specific information to enable the city council to determine whether or not there has been a substantial change in facts, evidence, or conditions in the case, shall be presented in writing or graphically.
      3. c.
         A rehearing shall be denied by the city council, if in its judgment a prima facie case for such change has not been alleged.
      4. d.
         A legislative hearing shall not be required to be held by the city council to consider holding such a rehearing. Approval of said consideration shall, however, require an affirmative vote of at least four voting members. In the event that the city council finds that a rehearing is warranted, it shall then proceed as in the original hearing except that the application fee shall be waived.
      5. e.
         Every decision of the city council shall be subject to review by the Superior Court Division of the General Courts of Justice of the State of North Carolina by proceedings in the nature of certiorari. Any petition for review by the Superior Court shall be duly verified and filed with the Clerk of Superior Court within 30 days after the decision of the board is filed in the office of the city clerk, or after a written copy is delivered to an aggrieved party who has filed a written request for such copy with the administrator at the time of the hearing of the case by the city council, whichever is later.
   8. 8.
      Application withdrawal:

      1. a.
         The petitioner may withdraw his or her application before submission of the public notice to the newspaper announcing the legislative hearing.
      2. b.
         After submission of such notice, an application may be withdrawn at the discretion of city council at the legislative hearing.
4. D.
   Procedures for zoning map amendments. Applications for zoning map amendments shall be processed, considered, and voted upon using the same procedures and subject to the same requirements as those established in Section 16.7.C except at provided below:

   1. 1.
      Notification requirements: Hearings on proposed zoning map amendments require additional public notices in accordance with G.S. 160D-602. Additional notification of the public hearing shall be as follows:

      1. a.
         A notice of a proposed change to the official map shall be sent by first-class mail by the administrator to the affected property and to all abutting property owners. For the purpose of this section, properties are "abutting" even if separated from the subject property by a street, railroad, or other transportation corridor. This notice must be deposited in the mail at least ten but not more than 25 days prior to the date of the hearing.
      2. b.
         The first-class mail notice required under subsection (a) of this section shall not be required when the zoning reclassification action directly affects more than 50 properties, owned by a total of at least 50 different property owners, and the city elects to use the expanded published notice procedures provided that the advertisement shall not be less than one-half newspaper page in size. The local government will publish the notice of a hearing in a newspaper having general circulation in the city once a week, for two successive weeks, the first notice to be published not less than ten days nor more than 25 days prior to the days prior to the date established for the hearing. The notice shall only be effective for the property owners who reside in the area of general circulation of the newspaper which published the notice. Property owners who reside outside of the city's jurisdiction or outside of the newspaper circulation area, according to the address listed on the most recent property tax listing for the affected property, shall be notified by mail pursuant to this section. The person or persons mailing the notices shall certify to the city council that fact, and the certificates shall be deemed conclusive in the absence of fraud.
      3. c.
         One or more prominent signs with the notice of the hearing shall be posted on the subject property or properties beginning not less than ten days nor more than 25 days prior to the date established for the hearing. Such notice shall state a phone number to contact during business hours for information. The sign shall remain until after the city council has rendered its final decision.
      4. d.
         When a zoning map amendment is proposed and if substantial impact on the neighborhood can be anticipated, the administrator shall have the right to require a neighborhood compatibility meeting in order to gather neighborhood feedback, and may require the person proposing the zoning map amendment to report on any communication with neighboring property owners and residents. A substantial impact on the neighborhood includes but is not limited to applications for zoning map amendments affecting multiple parcels with separate owners and for conditional zoning districts that request modifications to the density, dimensional and setback requirements enumerated in CHAPTER 2.
   2. 2.
      Brevard Planning Board review and comment:

      1. a.
         When a zoning map amendment is initiated by the City, the administrator shall send a notice of the Planning Board meeting by first-class mail to the affected property owners in the affected area. This notice must be deposited in the mail at least ten but not more than 25 days prior to the date of the meeting. If the proposal affects more than 50 properties, the administrator may utilize the notification procedure outlined in Section D.1.b. 
      2. b.
         In place of the recommendations outlined in Section 16.7.C, the BPB shall make one of the following recommendations with regard to a petition for a zoning map amendment:

         1. i.
            Grant the zoning map amendment as requested;
         2. ii.
            Grant the zoning map amendment with a change of the area requested;

            1. (A)
               If the change in area is an expansion of the area requested, the Board shall hold a second meeting discussing the expanded area. The administrator shall send a notice of the meeting by first-class mail to the affected property owners in the proposed expanded area. This notice must be deposited in the mail at least ten but not more than 25 days prior to the date of the second meeting. If the proposal affects more than 50 properties, the administrator may utilize the notification procedure outlined in Section D.1.b.
            2. (B)
               If the change in area is a reduction of the area requested. Then no additional meetings or notifications are required.
         3. iii.
            Grant the zoning map amendment to a more restrictive general zoning district or districts; or
         4. iv.
            Deny the application.
      3. c.
         The BPB shall submit a statement analyzing the reasonableness of any proposal for a zoning map amendment. The statement of reasonableness may consider, among other factors:

         1. i.
            The size, physical conditions, and other attributes of any area proposed to be rezoned;
         2. ii.
            The benefits and detriments to the landowners, the neighbors, and the surrounding community;
         3. iii.
            The relationship between the current actual and permissible development and the development permissible under the proposed amendment;
         4. iv.
            Why the action taken is in the public interest; and
         5. v.
            Any changed conditions warranting the amendment.
   3. 3.
      Legislative hearing:

      1. a.
         In addition to the general procedures outlined in Section 16.7.C.7, when adopting or rejecting any petition for a zoning map amendment, a statement analyzing the reasonableness of the proposed rezoning must be approved by the city council in accordance with G.S. 160D-605. The statement of reasonableness and the plan consistency statement may be approved as a single statement.
      2. b.
         In place of the decisions outlined in Section 16.7.C.7(b), a decision concerning a petition for a zoning map amendment shall be as follows:

         1. i.
            Grant the zoning map amendment as requested;
         2. ii.
            Grant the zoning map amendment with a reduction in the area requested;
         3. iii.
            Grant the zoning map amendment to a more restrictive general zoning district;
         4. iv.
            Grant the zoning map amendment with a combination of (ii) and (iii) above;
         5. v.
            Deny the application;
         6. vi.
            Send the application back to the BPB for further study and consideration; or
         7. vii.
            Call for additional legislative hearings on petitions brought before them.
      3. c.
         In accordance with G.S. 160D-605, if a zoning map amendment is adopted and the action was deemed inconsistent with the adopted plan, the zoning amendment shall have the effect of also amending any future land use map in the approved plan, and shall be required. A plan amendment and a zoning amendment may be considered concurrently, and does not require a separate application fee for a plan amendment.
5. E.
   Procedures for conditional zoning districts. Applications for conditional zoning shall be processed, considered, and voted upon using the same procedures and subject to the same requirements as those established in Section 16.7.D for zoning map amendments, except as provided below:

   1. 1.
      Application required:

      1. a.
         A conditional zoning district application shall be considered only upon request of the owner of the affected property or a duly authorized representative of the property owner. When applying for conditional zoning, the owner shall specify the nature of the proposed development and shall propose conditions to ensure compatibility with the surrounding uses and consistency with adopted plans.
      2. b.
         The applicant shall submit a final master plan or a preliminary master plan, pursuant to Section 17.5. If the applicant submits a final master plan as part of the initial application, subsection 5 below shall not be applicable.
      3. c.
         The applicant shall submit a recent survey of the parcel( s) completed within three years of the application submittal.
      4. d.
         The administrator may request an environmental survey.
      5. e.
         The administrator may require any other documentation, such as building elevations, deemed necessary by the administrator in order to provide a complete and accurate description of the proposed development.
   2. 2.
      Administrative review procedure: The administrator may require that the application be circulated to any relevant city, county, and state agencies, committees and officials for comment(s) as to the proposed development's conformance to all applicable standards and requirements and whether approval is recommended.
   3. 3.
      Brevard Planning Board review and comment:

      1. a.
         The BPB shall make one of the following recommendations with regard to a petition for a conditional zoning district:

         1. i.
            Grant the creation of the district as request;
         2. ii.
            Grant the creation of the district with a reduction of the area requested;
         3. iii.
            Include recommended conditions for the district;
         4. iv.
            Continued BPB consideration of the application in order to receive further information; or
         5. v.
            Deny the application.
   4. 4.
      Legislative hearing:

      1. a.
         During the adoption of a conditional zoning district, specific conditions may be proposed by the applicant, city council, BPB, technical review committee, or administrator, but only those conditions mutually approved in writing by city council and the applicant shall be incorporated into the zoning regulations and permit requirements. Conditions and site specific standards imposed in a conditional zoning district shall be limited to those that address the conformance of the development and use of the site to city ordinances, the adopted Comprehensive Land Use Plan or other plans, or the impacts reasonably expected to be generated by the development or use of the site.
      2. b.
         The conditions agreed upon pursuant to the conditional zoning approval may include but are not limited to:

         1. i.
            Allocating and/or limiting the land uses which are permitted on the property;
         2. ii.
            Specifying locations on the property of the proposed structure(s);
         3. iii.
            The number of dwelling units and density;
         4. iv.
            The location and extent of supporting facilities such as parking lots, driveways, and access streets;
         5. v.
            The location and extent of buffer areas and other special purpose areas;
         6. vi.
            The timing of development;
         7. vii.
            The height of structures;
         8. viii.
            The location and extent of rights-of-way and other areas to be dedicated for public purposes; and
         9. ix.
            Other such matters as may be identified as appropriate for the proposed development.
      3. c.
         City council may approve the preliminary master plan provided that the enacting ordinance sets forth specific requirements to be satisfied by a master plan and subsequent site plans, construction documents, and subdivision plats.
      4. d.
         A decision concerning a petition for a conditional zoning district shall be as follows:

         1. i.
            Grant the creation of the district as requested with agreed upon conditions;
         2. ii.
            Grant the creation of the district with a reduction in the area requested with agreed upon conditions;
         3. iii.
            Deny the application;
         4. iv.
            Send the application back to the BPB for further study and consideration; or
         5. v.
            Call for additional legislative hearings on petitions brought before them.
      5. e.
         Upon adoption of an enacting ordinance establishing a conditional zoning district, the official zoning map of the City of Brevard shall be amended to add the district.
   5. 5.
      Procedures following preliminary master plan approval. Unless a final master plan was approved at the time of creation of a conditional zoning district, then within one year of the enactment of the ordinance creating the district, or such other period, not to exceed five years, specified in said ordinance, the applicant shall submit a final master plan for development, or any phase thereof, meeting the requirements of Section 17.5. The provisions contained herein relating to submittal of final master plans may be modified by means of a development agreement between the developer and the City of Brevard, pursuant to Section 16.11.

      1. a.
         Upon receipt of a final master plan, the planning director shall review it for completeness and for compliance with the conditions and standards imposed in the enacting ordinance if the planning director determined that the plan is complete and does not constitute a major modification of the enacting ordinance pursuant to Section 16.9, including all conditions attached thereto and the approved preliminary master plan, he or she shall forward it to the BPB for its consideration. City council may require, as a condition at the time of creation of the conditional zoning district, that council be the approving authority for final master plan approval.
      2. b.
         If the approving authority determined that the final master plan complies with the enacting ordinance, including all conditions attached thereto, and with the approved preliminary master plan and with all applicable regulations, it shall grant final master plan approval for the development or a phase thereof, as applicable.
   6. 6.
      Modifications. Modifications to approved conditional zoning districts, including the enacting ordinance, an approved preliminary master plan, or the final master plan shall be in accordance with Section 16.9.
   7. 7.
      Issuance of permits:

      1. a.
         Demolition permits may be issued based upon an approved preliminary master plan. However, no permit shall be issued for the construction, remodel, or rehabilitation of any structure within the area of a conditional zoning district, nor shall any structure be approved within the area of a conditional zoning district, until a master plan has been approved by the approving authority and, subsequently, site plans, construction documents, and/or subdivision plats, as applicable, have been approved by the administrator. No subdivision of land within a conditional zoning district shall be permitted prior to final master plan approval unless the ordinance creating the district provides otherwise.
      2. b.
         Following approval of the final master plan of any conditional zoning district, the applicant shall submit to the administrator applications for subdivision and/or development approvals within one year of the date of final master plan approval. The administrator shall follow the applicable procedures in this chapter for subdivision and development approvals, and shall verify that all applicable requirements of the ordinance and conditions of city council are satisfied prior to granting approval. The administrator shall require any additional construction documents needed for permitting and evidence of approval of any other permit required by any other federal, state, or local agency (i.e., NCDOT permits, NCDEQ permits, Army Corps of Engineers permits, etc.).
   8. 8.
      If for any reason any provision of an enacting ordinance of a conditional zoning district is found to be illegal or invalid, or if the applicant should fail to provide written consent to any condition, the entire ordinance enacting the applicant' s individual conditional zoning district shall be null and void. If the applicant shall fail to adhere to any condition set forth in the enacting ordinance for a conditional zoning district, the administrator may employ the remedies set forth in CHAPTER 18 or may initiate appropriate action to rezone the affected property to another zoning classification. The applicant' s failure to adhere to one or more conditions shall constitute a rational basis for rezoning of the land contained within a conditional zoning district.
   9. 9.
      If no action has been taken to begin development of the property in accordance with a conditional zoning ordinance within 24 months of its approval by city council or such other period, not to exceed five years, specified in the conditional zoning ordinance, the administrator may initiate appropriate action to rezone the affected property to any other classification. Such failure to begin development shall constitute a rational basis for rezoning the land contained within a conditional zoning district.
   10. 10.
       If the use or uses commenced pursuant to an enacting ordinance of a conditional zoning district section are abandoned or discontinued for a period of 180 days, the administrator may initiate appropriate action to rezone the affected property to any other classification. Such abandonment or discontinuance shall constitute a rational basis for rezoning of the land contained within a conditional zoning district.
6. F.
   Procedures for extension of the Extraterritorial Jurisdiction (ETJ). Applications for extending the ETJ shall be processed, considered, and voted upon using the same procedures and subject to the same requirements as those established in Section 16.7.C except as provided below:

   1. 1.
      Notification requirements: A notice of a proposed extension of the ETJ shall be sent by first-class mail by the administrator to the last address listed for the affected property owners. The notice shall be mailed at least 30 days prior to the date of the hearing by following the procedures and containing information in accordance with G.S. 160D-202(d). In the instance of a single hearing for both a zoning map amendment and an ETJ extension, the initial notice of the zoning map amendment hearing may be combined with the boundary hearing notice.
   2. 2.
      Legislative hearing: In accordance with G.S. 160D-202(a), if a zoning map amendment is being proposed in conjunction with an expansion of municipal extraterritorial planning and development regulation jurisdiction, a single hearing on the zoning map amendment and the boundary amendment may be held.
   3. 3.
      The city shall take any other measures consistent with G.S. 160D-204 in order to adopt and apply its development regulations for the area at the same time it assumes jurisdiction.

( Ord. No. 2021-16 , § 1(Exh. A), 4-19-21; Ord. No. 2021-21 , § 1(Exh. A), 5-17-21; Ord. No. 2024-04, § 1(Exh. A), 3-18-24; Ord. No. 2024-23, § 1(Exh. A), 6-3-24; Ord. No. 2025-52, § 1(Exh. A), 11-3-25)

Effective on: 11/3/2025

FIGURE 16.8A: REVIEW PROCEDURES FOR QUASI-JUDICIAL DECISIONS

FIGURE 16.8A: REVIEW PROCEDURES FOR QUASI-JUDICIAL DECISIONS

2. B.
   General procedures. In accordance with G.S. 160D-102, a quasi-judicial decision is a process that involves the finding of facts regarding a specific application of a development regulation and that requires the exercise of discretion when applying the standards of the regulation. Quasi-judicial decisions include but are not limited to decisions involving variances, special use permits, certificates of appropriateness, and appeals of administrative decisions that are final and binding. Pursuant to G.S. 160D-406, the board shall follow quasi-judicial procedures for all quasi-judicial decisions.

   1. 1.
      Procedure for filing appeals and applications. Notices of appeal shall be filed with the city clerk. Applications for variances and special use permits​​​​​​​ shall be filed with the administrator in accordance with Section 16.5. Certificates of appropriateness are outlined in CHAPTER 20 of this Ordinance.
   2. 2.
      Notice of evidentiary hearing. Notice of evidentiary hearings conducted pursuant to this section shall be mailed to the person or entity whose appeal or application is the subject of the hearing; to the owner of the property that is the subject of hearing if the owner did not initiate the hearing; to the owners of all parcels of land abutting the parcel of land that is the subject of the hearing; and to any other persons entitled to receive notice as provided by these regulations. In the absence of evidence to the contrary, the city may rely on the Transylvania County tax listing to determine owners of property entitled to mailed notice. The notice must be deposited in the mail at least ten days, but not more than 25 days, prior to the date of the hearing. Within that same time period, the city shall also 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. The board may continue an evidentiary hearing that has been convened without further advertisement. If an evidentiary hearing is set for a given date and a quorum of the board is not then present, the hearing shall be continued until the next regular board meeting without further advertisement.
   3. 3.
      Administrative materials. The administrator or staff to the board shall transmit to the board all applications, reports, and written materials relevant to the matter being considered. The administrative materials may be distributed to the members of the board prior to the hearing if at the same time they are distributed to the board a copy is also provided to the appellant or applicant and to the landowner if that person is not the appellant or applicant. The administrative materials shall become a part of the hearing record. The administrative materials may be provided in written or electronic form. Objections to inclusion or exclusion of administrative materials may be made before or during the hearing. Rulings on unresolved objections shall be made by the board at the hearing.
   4. 4.
      Hearings. The board shall conduct an evidentiary hearing on the appeal or application. It shall determine contested facts and make its decision within 45 days of the conclusion of hearing. The board's decision shall be based upon competent, material, and substantial evidence in the record of the hearing.

      1. a.
         The applicant, the city, and any person who would have standing to appeal the decision under G.S. 160D-1402 shall have the right to participate as a party at the evidentiary hearing. Other witnesses may present competent, material, and substantial evidence that is not repetitive as allowed by the board. Opinion testimony from a lay witness shall not be considered competent evidence for technical matters such as property value, traffic impacts, or other matters about which only expert testimony would generally be admissible under the rules of evidence.
      2. b.
         Objections regarding jurisdictional and evidentiary issues, including but not limited to, the timeliness of an appeal, the inclusion or exclusion of administrative material, or the standing of a party, may be made to the board. The board chair shall rule on any objections and the chair's rulings may be appealed to the full board. These rulings are also subject to judicial review pursuant to G.S. 160D-1402. Objections based on jurisdictional issues may be raised for the first time on judicial review.
      3. c.
         Witnesses shall testify under oath. The chair of the board or any member acting as chair and the clerk to the board are authorized to administer oaths to witnesses in any matter coming before the board. Any person who, while under oath during a proceeding before the board determining a quasi-judicial matter, willfully swears falsely is guilty of a Class 1 misdemeanor.
      4. d.
         The official who made the decision, or the person currently occupying that position if the decision-maker is no longer employed by the city, shall be present at the hearing as a witness. The appellant shall not be limited at the evidentiary hearing to matters stated in the notice of appeal. If any party or the city would be unduly prejudiced by the presentation of matters not presented in the notice of appeal, the BOA shall continue the hearing.
      5. e.
         When hearing an 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 G.S. 160D-1402(j).
      6. f.
         The concurring vote of four-fifths of the board shall be necessary to grant a variance. A majority of members shall be required to decide any other quasi-judicial matter or to determine an appeal in the nature of certiorari. For the purposes of this paragraph, vacant positions on the board and members who are disqualified from voting on a quasi-judicial matter under Section 15.5 shall not be considered members of the board for calculation of the requisite majority if there are no qualified alternates available to take the place of such members.
      7. g.
         The decision shall be reduced to writing and reflect the board's findings of contested facts, if any, the facts' application to applicable standards, and conclusions of law. The written decision shall be approved by the board and signed by the chair or other duly authorized member of the board. The decision of the board shall be effective upon filing such decision with the clerk to the board. The clerk shall see that the decision is delivered by personal delivery, electronic mail, or by first-class mail to the applicant, property owner, any entity granted party status at the hearing, and to any person who has submitted a written request for a copy, prior to the date the decision becomes effective and shall certify that proper notice has been made.
   5. 5.
      Burden of persuasion. In all quasi-judicial hearings, the applicant or appellant, as the case may be, shall have the burden of persuasion.
   6. 6.
      Rehearings.

      1. a.
         An application for a rehearing shall be made in the same manner as provided for an original hearing within a period of 15 days after the date of the board's decision. In addition, specific information to enable the board to determine whether or not there has been a substantial change in facts, evidence, or conditions in the case, shall be presented in writing or graphically. A rehearing shall be denied by the board, if, in its judgment, a prima facie case for such change has not been alleged. A quasi-judicial hearing shall not be required to be held by the board to consider holding such a rehearing. Approval of said consideration shall, however, require an affirmative vote of at least four-fifths of the board for a variance and a simple majority for all other matters. In the event that the board finds that a rehearing is warranted, it shall proceed as in the original hearing except that the application fee shall be waived.
   7. 7.
      Appeals of the BOA's decisions. Every quasi-judicial decision of the BOA under this section shall be subject to review by the Superior Court Division of the General Courts of Justice of the State of North Carolina by proceedings in the nature of certiorari. A petition for review shall be filed with the clerk of superior court within the times specified in G.S. 160D-1405(d).
3. C.
   Procedures for special use permits. Special uses are generally compatible with the land uses permitted by right in a zoning district but require individual review of their location, design, and configuration so as to evaluate the potential for adverse impacts on adjacent property and uses. Special uses ensure the appropriateness of the use at a particular location within a given zoning district. Only those uses enumerated as special uses in a zoning district shall be authorized by the BOA. Applications for special use permits shall be processed, considered, and decided upon using the same procedures and subject to the same requirements as those established in Section 16.8.A, except as provided below.

   1. 1.
      Application required.

      1. a.
         The applicant shall submit a sketch plan, in accordance with Section 17.4.
      2. b.
         The applicant shall submit a description or narrative stating why the special use is requested.
      3. c.
         The administrator may request an environmental survey.
      4. d.
         The administrator may require any other documentation, such as construction documents and building elevations, deemed necessary by the administrator in order to provide a complete and accurate description of the proposed use.
   2. 2.
      Administrative review procedure.

      1. a.
         The applicant shall submit the completed application, pursuant to Section 16.5 at least 45 days prior to the BOA meeting at which it will first be reviewed. For urgent matters, the administrator may request the BOA to review the application at an earlier meeting if processing time permits.
      2. b.
         The administrator shall review and comment on the application and supporting materials in accordance with Section 16.6.
      3. c.
         The administrator may require that the application and supporting materials be reviewed by the technical review committee (TRC) in accordance with Section 15.1.
      4. d.
         The administrator may require that the application be circulated to other relevant city, county, and state agencies and officials for comment(s) as to the proposed development's conformance to all applicable standards and requirements and whether approval is recommended.
      5. e.
         The administrator may require a neighborhood compatibility meeting in order to gather neighborhood feedback, and may require the person proposing the special use permit to report on any communication with neighboring property owners and residents.
      6. f.
         Once the administrator has reviewed the application and circulated it to other relevant agencies, committees, and officials, the administrator shall transmit the application to the BOA for action.
   3. 3.
      Hearings.

      1. a.
         The evaluation and approval of the special use permit shall be based upon the sworn testimony and evidence presented at the hearing relevant to the following findings of fact:

         1. i.
            The use meets all requirements and specifications of the ordinance and any adopted land use plans and is in harmony with the general purpose and intent and preserves its spirit; and
         2. ii.
            The proposed use or structure will, if developed according to the plan submitted and approved, be visually and functionally compatible to the surrounding area; and
         3. iii.
            The proposed use or structure will not be injurious to the public health, safety, and welfare, and will not be detrimental to the value of adjoining property and associated uses.
      2. b.
         The BOA may require a traffic impact study, an environmental survey or impact statement, and any other additional information or evidence as necessary to properly consider the application.
   4. 4.
      Permit approval.

      1. a.
         In approving an application for a special use permit, the BOA may attach reasonable and appropriate conditions on the location, nature, and extent of the proposed use, which support the required findings of fact. Where appropriate, such conditions may include requirements that street and utility rights-of-way be dedicated to the public and that provision be made for recreational space and facilities. These conditions shall not include requirements for which the city does not have the statutory authority to impose or for which the courts have held to be unenforceable if imposed directly the city. Only those conditions mutually approved in writing by the BOA and the applicant shall be incorporated into the permit requirements.
      2. b.
         The BOA may not require the landowner to waive a vested right as a condition of the special use permit approval. The burden of proof of producing evidence to support these findings and to overcome any challenges that approval of the plan would be contrary to one or more of these findings shall rest entirely with the applicant or landowner.
      3. c.
         Following the approval of the special use permit by the BOA, the applicant shall submit to the administrator all construction documents and any other documents specified by CHAPTER 17 for project development approval and administration. The administrator shall require evidence of approval of any other permit required by any other federal, state, or local agency (i.e., NCDOT permits, NCDENR permits, Army Corps of Engineers permits, etc.).
   5. 5.
      Effect of approval. If an application is approved, the special use permit that is established and all conditions which may have been attached to the approval are binding on the property. All subsequent development and use of the property must be in accordance with the approved plan and conditions. The approved special use permit shall be recorded with the Transylvania County Register of Deeds and a copy of the recordation be submitted to the city, pursuant to G.S. 160D-705(c).
   6. 6.
      Modifications. Modifications to an approved special use permit shall be in accordance with Section 16.9.
   7. 7.
      Revocation of special use permits.

      1. a.
         Revocation of special use permits shall be conducted pursuant to Section 16.13.
      2. b.
         In addition to the reasons for revocation outlined in Section 16.13, the applicant must secure a valid building permit within a 12-month period from date of approval of the special use permit unless otherwise specified.
4. D.
   Procedures for administrative appeals. Appeals of administrative decisions and development approvals shall follow the same procedures and be subject to the same requirements as those established in Section 16.8.A except as provided below:

   1. 1.
      Applicability. In accordance with G.S. 160D-405, the BOA shall hear and decide appeals of final and binding decisions made by administrative officials charged with enforcement of any development regulations, including administrative modifications and denials of development permits. Any person who has standing under G.S. 160D-405 or the city may appeal a decision to the BOA. The owner of the property or any other party with standing shall have 30 days from receipt of notice, pursuant to Section 16.4, within which to file a notice of appeal stating the grounds for appeal.
   2. 2.
      Stays.

      1. a.
         An appeal of a notice of violation or other enforcement order stays enforcement of the decision appealed from and accrual of any fines assessed unless the official who made the decision certifies to the BOA 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.
      2. b.
         Notwithstanding the foregoing, appeals of decisions granting a development approval or otherwise affirming that a proposed use of property is consistent with the development regulations shall not stay further review of an application for development approvals to use such property; in these situations the appellant or city may request, and the BOA may grant, a stay of a final decision of development approval applications, including building permits affected by the issue being appealed.
   3. 3.
      Hearings. The board may reverse or 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 powers of the official who made the decision.
   4. 4.
      Alternative dispute resolution. The parties to an appeal may agree to mediation or other forms of alternative dispute resolution.
5. E.
   Procedures for variances. Except as limited herein, the board of adjustment shall have the authority to vary provisions of the UDO in accordance with this section. Applications for variances shall follow the same procedures and be subject to the same requirements as those established in Section 16.8.A except as provided below.

   1. 1.
      Administrative review procedure:

      1. a.
         The applicant shall submit the completed application, pursuant to Section 16.5 at least 45 days prior to the BOA meeting at which it will first be reviewed. For urgent matters, the administrator may request the BOA to review the application at an earlier meeting if processing time permits.
      2. b.
         The administrator shall review and comment on the application and supporting materials in accordance with Section 16.6.
      3. c.
         The administrator may require that the application and supporting materials be reviewed by the technical review committee (TRC) in accordance with Section 15.1.
      4. d.
         The administrator may require that the application be circulated to other relevant city, county, and state agencies and officials for comment(s) as to the proposed development's conformance to all applicable standards and requirements and whether approval is recommended.
      5. e.
         Once the administrator has reviewed the application and circulated it to other relevant agencies, committees, and officials, the administrator shall transmit the application to the BOA for action.
   2. 2.
      Standards for granting variances. Except as limited by subsection 16.8.D.4, below, when unnecessary hardships would result from carrying out the strict letter of the UDO, the BOA shall vary such regulations upon a showing of all of the following:

      1. a.
         Unnecessary hardship would result from the strict application of the regulations. It is not necessary to demonstrate that, in the absence of the variance, no reasonable use can be made of the property.
      2. b.
         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. c.
         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. d.
         The requested variance is consistent with the spirit, purpose, and intent of the regulations, such that public safety is secured, and substantial justice achieved. Substantial justice is not achieved when granting the variance would be injurious to the neighborhood or to the general welfare.
   3. 3.
      Guiding principles. In judging a request for a variance, the BOA shall be guided by the following principles:

      1. a.
         The hardship of which the applicant complains is one suffered by the applicant rather than by neighbors or the general public;
      2. b.
         The hardship relates to the applicant's land, rather than personal circumstances;
      3. c.
         The hardship is unique, or nearly so, rather than one shared by many surrounding properties;
      4. d.
         The hardship is not the result of the applicant's own actions; and
      5. e.
         The fact that the property could be utilized more profitably or conveniently with the variance than without the variance shall not constitute an unnecessary hardship.
      6. f.
         Hardships for the following regulations are shared across many properties, are broadly required for public safety and general welfare, and are unlikely to create a situation warranting a variance.

         1. i.
            To provide relief from the requirements of Section 9.5 for visibility at street intersections and driveways. In order to ensure that the requested variance is consistent with the spirit, purpose, and intent of the regulations, such that public safety is secured and substantial justice is achieved, the following additional requirements shall apply:

            1. (A)
               Variances shall not be issued when the variance will make the structure in violation of other federal, state, or local laws, regulations, ordinances.
            2. (B)
               The variance shall only be issued upon the inclusion of the following determinations:

               1. (1)
                  The variance will not pose a danger to the public safety based on competent evidence. As used in this subsection, competent evidence shall not be deemed to include the opinion testimony of lay witnesses as to vehicular safety resulting from the reduction of visibility of the sight triangle.
               2. (2)
                  The variance is the minimum necessary to afford relief.
         2. ii.
            To provide relief from the surface water protection requirements of Section 6.7 pertaining to encroachments into surface water protection areas other than that portion lying in the regulatory floodway may be considered. In order to ensure that the requested variance is consistent with the spirit, purpose, and intent of the regulations, such that public safety is secured and substantial justice is achieved, the following additional requirements shall apply:

            1. (A)
               Variances shall not be issued when the variance will make the structure in violation of other federal, state, or local laws, regulations, ordinances.
            2. (B)
               Variances shall only be issued upon the following determinations:

               1. (1)
                  The granting of the variance will not result in increased flood heights, additional threats to public safety, or extraordinary public expense, create a nuisance, cause fraud on or victimization of the public, or conflict with existing local laws ordinances.
               2. (2)
                  The variance is the minimum necessary to afford relief.
            3. (C)
               Variances shall only be issued prior to floodplain development approval.
   4. 4.
      Conditions. The BOA, in granting a variance, may prescribe appropriate conditions and safeguards on any variance, provided that the conditions are reasonably related to the variance. Violation of such conditions and safeguards, when made a part of the terms under which a variance is granted, shall be deemed a violation of this ordinance and shall be punishable as prescribed in CHAPTER 18.
   5. 5.
      Limitations on board's authority. The BOA shall not have authority to grant variances in the following situations:

      1. a.
         To change the permitted uses for any property.
      2. b.
         To provide relief from the environmental protection requirements in CHAPTER 6 including, but not limited to, steep slope, sedimentation and erosion prevention, stormwater runoff, surface water protection, and flood damage prevention, except those surface water protection areas of Section 6.7 outlined in subsection 3 above.
      3. c.
         To provide relief from the water, sewer, and utility requirements of Section 13.4.
   6. 6.
      Conformance with City Code. Structures and uses permitted by means of a variance from a provision of this ordinance shall otherwise conform to all other applicable provisions of this ordinance and the Brevard CITY CODE OF ORDINANCES.
   7. 7.
      The approved variance shall be recorded with the Transylvania County Register of Deeds and a copy of the recordation be submitted to the city, pursuant to G.S. 160D-705(c).

( Ord. No. 2021-16 , § 1(Exh. A), 4-19-21; Ord. No. 2025-52, § 1(Exh. A), 11-3-25)

Effective on: 11/3/2025

(Ord. No. 2021-16 , § 1(Exh. A), 4-19-21; Ord. No. 2023-34, § 1(Exh. A), 8-7-23)

Effective on: 8/7/2023

( Ord. No. 2021-16 , § 1(Exh. A), 4-19-21; Ord. No. 2024-23, § 1(Exh. A), 6-3-24)

Effective on: 6/3/2024

( Ord. No. 2021-16 , § 1(Exh. A), 4-19-21; Ord. No. 2024-46, § 1(Exh. A), 12-2-24)

Effective on: 12/2/2024

( Ord. No. 2021-16 , § 1(Exh. A), 4-19-21; Ord. No. 2025-52, § 1(Exh. A), 11-3-25)

Effective on: 11/3/2025