1-4.1   STATE LAW

This Ordinance is adopted pursuant to North Carolina G.S. 160A Article 8 (Delegation and Exercise of the General Police Power) and 160D (Local Planning and Development Regulation). This Ordinance is further adopted pursuant to the following Session Laws applicable to Forsyth County, and these laws are followed to the extent that they are not inconsistent with the cited General Statutes: Chapter 677, 1947 Session Laws, as amended, and other applicable laws.

( C-UDO-83 , § 3, 6-28-21)

1-4.2   INTENT

The intent of the adopting jurisdiction is to exercise its available power as authorized in the statutes cited in Section B.1-4.1 to the maximum extent possible, as more fully set forth herein.

1-4.3   AMENDMENTS

This Ordinance may be amended in accordance with the provisions of this Ordinance as required or allowed by subsequent legislative enactments.

1-5.1   COMPLIANCE WITH PROVISIONS

No building, premises, or structure shall be used, constructed, erected, modified, altered, converted, occupied, placed, maintained, removed or moved, and no land use shall be commenced, maintained, or modified except in compliance with the provisions, restrictions, and procedures set forth herein.

1-5.2   VESTED RIGHTS

Development rights perfected prior to the effective date of this Ordinance shall be subject to the Zoning Ordinance under which the rights were perfected, unless and until such vested rights are withdrawn or expire in accordance with the law.

(A)

Purpose .....The purpose of this section is to implement the provisions of North Carolina General Statute 160D related to establishment of vested rights.

(B)

Site-Specific Vesting Plan

(1)

The development approvals listed below are determined by the Village of Clemmons to qualify as site-specific vesting plans

(a)

Approval of a use requiring a special use permit by the Board of Adjustment or Elected Body in accordance with section B.6-2.8.

(b)

Approval of a one-phase special use zoning district petition or a site plan amendment to a one-phase special use zoning district petition by the Elected Body in accordance with section B.6-2.6.

(c)

Approval of a final development plan by the Elected Body in accordance with section B.6-2.6 pursuant to a two-phase special use zoning district petition.

(C)

Process for submittal, approval, and amendment of a site-specific vesting plan

(1)

Plans shall be submitted and processed in accordance with the procedures established by this Ordinance and shall be considered by the designated approving authority for the specific type of zoning or land use permit or approval for which application is made. A vested right is established once approval is granted by the approving authority following notice and public hearing.

(2)

The notice of public hearing required for vested rights shall follow the same advertisement procedure as is required by either a legislative hearing or evidentiary hearing contingent upon the petition that is requested.

(3)

A vested right shall be deemed established upon the valid approval or approval with conditions by the approving authority in compliance with all provisions of the Unified Development Ordinances, as applicable, of a site-specific vesting plan, following notice and hearing per article VI of this Ordinance.

(4)

The approving authority may approve a site-specific vesting plan upon such terms and conditions as may reasonably be necessary to protect the public health, safety, welfare, and conditions authorized in Article II, Article VI, and Article IX and upon making such findings as are required for approval by this Ordinance.

(5)

A site-specific vesting plan shall be deemed approved upon the effective date of approval by the approving authority or ordinance relating thereto, and only to the extent of that approval.

(6)

An approved site-specific vesting plan and its conditions may be amended with the approval of the owner and the approving authority as follows: any major amendments must be reviewed and approved in the same manner as the original approval; minor modifications may be approved by staff, if such are defined and authorized in this Ordinance.

(7)

A vested right is not a personal right, but shall attach to and run with the applicable property. After approval of a site-specific vesting plan, all successors to the original landowner shall be entitled to exercise such right while applicable.

(D)

Limits of Site-Specific Vesting Plans

(1)

The establishment of a vested right shall not preclude the application of overlay zoning that imposes additional requirements but does not affect the allowable type or intensity of use, or ordinances or regulations that are general in nature and are applicable to all property subject to development regulation by the local jurisdiction, including, but not limited to, building, fire, plumbing, electrical, and mechanical codes. Otherwise, applicable new or amended regulations shall become effective with respect to property that is subject to a site-specific vesting plan upon the expiration or termination of the vested right in accordance with this section.

(2)

Nothing in this section shall prohibit the revocation of the original approval or other remedies for failure to comply with applicable terms and conditions of the approval by the approving authority or of this Ordinance.

(3)

New and amended development regulations that would be applicable to certain property but for the establishment of vested right shall become effective upon the expiration or termination of the vested rights period provided for this Ordinance.

(4)

A variance does not constitute a site-specific vesting plan, and approval of a site-specific vesting plan with the condition that a variance be obtained does not confer a vested right unless and until the necessary variance is obtained.

(E)

Duration .....The establishment of vested rights under this section does not preclude the establishment of one or more other vested rights or vesting by common law principles. Vested rights established approvals are as follows:

(1)

Building Permits—Six (6) Months. .....Pursuant to G.S. 160D-1109, a building permit expires six (6) months after issuance unless work under the permit has commenced. Building permits also expire if work is discontinued for a period of twelve (12) months after work has commenced.

(2)

Other Local Development Approvals—One (1) Year. .....Pursuant to G.S. 160D-403(c), unless otherwise specified by statute or local ordinance, all other local development approvals expire one year after issuance unless work has substantially commenced. Expiration of a local development approval shall not affect the duration of a vested right established under this section or vested rights established under common law.

(3)

Site-Specific Vesting Plans—Two (2) to Five (5) Years.

(a)

Duration. .....A vested right for a site-specific vesting plan shall remain vested for a period of two years. Upon following the same procedures as required for the original approval, the approval authority may extend the vesting of a site-specific vesting plan up to three years (with a total length of vesting not to exceed five years) upon finding that:

(i)

The permit has not yet expired;

(ii)

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

(iii)

The extension is warranted in light of all other relevant circumstances—including, but not limited to the size and phasing of development, the level of investment, the need for the development, economic cycles, and market conditions or other considerations.

(b)

Relation to building permits. .....A right vested as provided in this subsection shall terminate at the end of the applicable vesting period with respect to buildings and uses for which no valid building permit applications have been filed. Upon issuance of a building permit, the provisions of G.S. 160D-1109 and G.S. 160D-1113 shall apply, except that the permit shall not expire or be revoked because of the running of time while a vested right under this subsection exists.

(4)

Multiphase Developments—Seven (7) Years. .....A multiphase development shall be vested for the entire development with the zoning regulations, subdivision regulations, and unified development ordinances in place at the time a site plan approval is granted for the initial phase of the multiphase development. This right shall remain vested for a period of seven years from the time a site plan approval is granted for the initial phase of the multiphase development. For purposes of this subsection, "multiphase development" means a development containing twenty-five (25) acres or more that (i) is submitted for site plan approval for construction to occur in more than one phase and (ii) is subject to a master development plan with committed elements, including a requirement to offer land for public use as a condition of its master development plan approval.

(5)

Development Agreements—Case by Case. .....A vested right of reasonable duration may be specified in a development agreement approved under Article 10 of Chapter 160D of North Carolina General Statutes.

(F)

Substantially Commencing Development

(1)

A valid development approval shall not expire if work on the project has substantially commenced within the initial validity period. Substantial commencement of work shall be determined by the Zoning Officer based on any of the following:

(a)

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

(b)

The development has installed substantial on-site infrastructure; or

(c)

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

(2)

Even if work has substantially commenced, a development approval still expires if development work is intentionally and voluntarily discontinued for a period of not less than 24 consecutive months, as calculated and tolled pursuant to N.C.G.S. 160D-108.

(G)

Termination .....A vested right, once established as provided for in this section, precludes any zoning action by a local government which would change, alter, impair, prevent, diminish, or otherwise delay the development or use of the property as set forth in an approved sitespecific vesting plan, except under one or more of the following conditions:

(1)

No Building Permit. .....Termination of the applicable vesting period with respect to buildings and uses for which no valid building permit has been issued.

(2)

Written Consent. .....Written consent of the affected landowner.

(3)

Threat to Public Health or Safety. .....Upon findings, by ordinance after notice and an evidentiary hearing, that natural or man-made hazards on or in the immediate vicinity of the property, if uncorrected, would pose a serious threat to the public health, safety, and welfare if the project were to proceed as contemplated in the site-specific vesting plan.

(4)

Misrepresentation. .....Upon findings, by ordinance after notice and an evidentiary hearing, that the landowner or the landowner's representative intentionally supplied inaccurate information or made material misrepresentations that made a difference in the approval by the local government of the site-specific vesting plan or the phased development plan.

(5)

State or Federal Law. .....Upon the enactment or promulgation of a State or federal law or regulation that precludes development as contemplated in the site-specific vesting plan or the phased development plan, in which case the Board of Adjustment may modify the affected provisions, upon a finding that the change in State or federal law has a fundamental effect on the plan, by ordinance after notice and an evidentiary hearing.

(6)

Compensation. .....To the extent that the affected landowner receives compensation for all costs, expenses, and other losses incurred by the landowner, including, but not limited to, all fees paid in consideration of financing, and all architectural, planning, marketing, legal, and other consulting fees incurred after approval by the local government, together with interest as provided under G.S. 160D-106. Compensation shall not include any diminution in the value of the property which is caused by the action.

(H)

Amendments

(1)

Minor modifications, consistent with Article VI Administrative Provisions may be approved by the Planning Director or Zoning Officer.

(2)

Any other amendments consistent with Article VI Administrative Provisions may be approved by the approving authority.

(3)

Prior to the issuance of a building permit for the subject site, the approving authority and Planning Director or Zoning Officer, must approve with or without conditions, any amendments to the site-specific vesting plan.

(I)

Limitations .....Nothing in this section is intended or shall be deemed to create any vested right other than those established pursuant to G.S. 160D-108 and 160D-108.1.

( C-UDO-83 , § 4, 6-28-21)

1-5.3   MULTIPLE USES

In cases of two (2) or more principal uses on the same zoning lot, the regulations for each use shall apply to that portion of the structure or land so used.

1-5.4   MINIMUM REQUIREMENTS

The requirements contained in this Ordinance shall be the minimum requirements for administration, enforcement, procedures, restrictions, standards, uses, variances, and all other areas addressed by this Ordinance; and, if any other existing ordinance or regulation allows lesser regulation, this Ordinance shall govern, so that in all cases, the more restrictive limitation or requirement shall govern.

1-5.5   REDEVELOPMENT

(A)

These standards shall apply to all redevelopment activities as set forth in this section. Redevelopment is defined as one or more of the following:

(1)

Demolition of an existing building and rebuilding on the site.

(2)

Certain Thresholds

(a)

Reconstruction of a building that is twenty-five percent (25%) or greater than the original building footprint.

(b)

Reconstruction of a property that increases the intensity of development by twenty-five percent (25%) or greater for parcels less than or equal to one (1) acre.

(c)

Reconstruction of a property that increases the intensity of development by ten percent (10%) or greater for parcels greater than one (1) acre.

(d)

Cumulative additions that are twenty-five percent (25%) or greater than the original building footprint.

(e)

Cumulative additions that increase the intensity of development by twenty-five percent (25%) or greater over the original site plan for parcels less than or equal to one (1) acre.

(f)

Cumulative additions that increase the intensity of development by ten percent (10%) or greater over the original site plan for parcels greater than one (1) acre.

(g)

Further additions are not permitted once the thresholds in (a) through (f) are met.

(3)

Cumulative addition or changes when ten (10) or more parking spaces are added to the site with no building.

(4)

Cumulative addition of façade changes of ten percent (10%) or more of any building wall facing a vehicular way intended for public travel regardless of ownership (e.g., adding or eliminating doors, windows, closings, openings, or increased wall area).

(B)

From April 12, 2010, that all redevelopment sites per Section B.1-5.5(A)(1) and B.1- 5.5(A)(2) shall be required to comply with the following portions of the Unified Development Ordinance:

(1)

Article II of this Ordinance.

(2)

Article III of this Ordinance.

(3)

If the parcel is in a Historic (H) District, Historic Overlay (HO) or is designated as a Local Historic Landmark (LHL) Article IV of this Ordinance shall apply.

(4)

Chapter C of the Unified Development Ordinances.

(C)

From April 12, 2010, that all redevelopment sites per Section B.1-5.5(A)(3) shall be required to comply with the following portions of the Unified Development Ordinance:

(1)

Chapter B, Article III, Section 3-4 Landscape and Tree Preservation Standards.

(D)

From April 12, 2010, that all redevelopment sites per Section B.1-5.5(A)(4) shall be required to comply with the following portions of the Unified Development Ordinance:

(1)

Chapter B, Article III, Section 3-4.3(B) Streetyards in Landscape and Tree Preservation Standards.

(C-UDO-49, § 2, 4-12-10; C-UDO83 , § 5, 6-28-21; C-UDO-87 , § 1, 7-25-22; C-UDO-90 , § 1, 7-10-23)

1-6.1   INVALIDATION OF PORTIONS OF ORDINANCE

Should any section, sentence, clause, phrase, or word of this Ordinance be held invalid or unconstitutional by a court of competent jurisdiction of either the State of North Carolina or of the United States, such decision shall not affect, impair, or invalidate the remaining parts of this Ordinance. The remaining parts shall remain in effect without the invalid provision, and to that extent they are severable.

1-6.2   INVALIDATION OF APPLICATION

This invalidation of the application of any provision of this Ordinance to any particular property or structure, or to any particular properties or structures, by any court of competent jurisdiction, shall not affect the application of such provision to any other property or structure not specifically included in such invalidation.

1-6.3   PRESUMPTION

When an administration officer or board authorizes regulatory action, it shall be conclusively presumed that such officer or board would not have authorized such action except in the belief that such action was lawful.

1-7.1   CONFLICT WITHIN ORDINANCE

Where a conflict exists between any limitations or requirements in this Ordinance, the more restrictive limitation or requirements shall prevail.

1-7.2   CONFLICT WITH OTHER ORDINANCE OR LAW

Where a conflict exists between the provisions of this Ordinance and any other ordinance or law, or where the provisions of this Ordinance impose overlapping or contradictory regulations, the most restrictive provision or the one which imposes the highest standards or requirements shall prevail.