6-1.1   PRE-APPLICATION MEETING

(A)

Purpose .....The purpose of the pre-application meeting is to provide an opportunity for the petitioner and the Village of Clemmons to discuss the development concept prior to the application submission for a project to:

(1)

Determine the required application(s) and, if necessary, the timing of multiple application submittals to determine if they may be processed concurrently or sequentially;

(2)

Provide the petitioner with application materials and inform the petitioner of submittal requirements;

(3)

Provide the petitioner with an estimated time frame for the review process;

(4)

Discuss general compliance with the requirements of this chapter

(5)

Discuss the need for neighborhood meetings and public notice requirements; and

(6)

Refer the petitioner to other agencies to discuss potential significant issues prior to application submittal.

(B)

Applicability

(1)

Pre-application Meeting Recommended. .....A pre-application meeting is recommended prior to submitting most development applications. The pre-application meeting is designed to help the applicant understand the Village of Clemmons development approval process.

(2)

Pre-application Meeting Required. .....Petitioners with the following application types are required to attend a pre-application meeting with staff:

(a)

Zoning Map Amendments.

(b)

Unified Development Ordinance text amendments.

(c)

Special Use Permits.

(d)

Site Plans.

(e)

Variances.

(3)

Record and Effect.

(a)

The Village of Clemmons is not responsible for making or keeping a summary of the general topics discussed at the pre-application conference.

(b)

A pre-application meeting is advisory only and does not constitute or effect approval of any aspect or item of an application.

( C-UDO-83 , § 47, 6-28-21)

6-1.2   NEIGHBORHOOD MEETING

(A)

Purpose .....The purposes of a neighborhood meeting are to:

(1)

Inform neighboring landowners of the details of a proposed development;

(2)

Identify how the developer intends to meet the standards contained in this code; and

(3)

Allow the petitioner to receive preliminary public comment on the proposal.

(B)

Applicability

(1)

Zoning Map Amendments. .....Before an application for a zoning map amendment is heard by the Planning Board, the petitioner shall conduct a neighborhood meeting except when the petitioner is the Village of Clemmons.

(2)

Planning Director.

(a)

Where not otherwise required, the Planning Director shall request a neighborhood meeting where it appears that the potential uses, size, scale, traffic impacts, or operating impacts of the proposed activity or development may materially affect the residents of Clemmons.

(b)

Additional Neighborhood Meetings may be requested by the Planning Director where it appears that the potential uses, size, scale, traffic impacts, or operating impacts of the proposed activity or development have changed since it was submitted.

(C)

Notice .....If a neighborhood meeting is held by a petitioner, it shall be held at the petitioner's expense and comply with the following procedures:

(1)

Time and Place.

(a)

The neighborhood meeting shall be held at a place that is convenient and generally accessible to neighbors that reside in proximity to the land subject to the application.

(b)

The meeting shall be held in the evening or at a time of day when the maximum number of neighbors may attend.

(c)

Neighborhood meetings shall be scheduled for no less than sixty (60) minutes in duration.

(d)

Neighborhood meetings shall generally be in person except for instances where a local state of emergency has been declared per G.S. 166A-8.

(e)

The Planning Director may approve a modification to the neighborhood meeting requirements in B.6-1.2(c)(1) as needed or if requested by the petitioner.

(f)

Nothing in this section shall be construed to prohibit the use of interactive audio or video means to expand public participation.

(2)

Notification.

(a)

The petitioner shall provide notification of the neighborhood meeting a minimum of fourteen (14) days in advance of the meeting, by mail, to all owners and occupants within 500 feet of the land subject to the application. All measurements shall be made by drawing a straight line from the nearest point of the lot line for the subject property to the nearest point of the lot line for the adjoining parcels.

(b)

The notification shall state the time and place of the meeting, contain a vicinity map and short description of the project, state the purpose of the meeting, and, if applicable, include a proposed site plan for the proposed project.

(3)

Information Provided. .....The petitioner shall provide the following information to those attending the meeting:

(a)

The purpose of the neighborhood meeting;

(b)

A description of the proposed development;

(c)

The development review procedure(s) the application will follow;

(d)

The potential for changes in the development proposal as it proceeds through the review process;

(e)

Sources of further information about the development review process; and

(f)

Any additional information that would promote understanding of the development proposal.

(4)

Conduct of Meetings. .....At the neighborhood meeting, the petitioner shall explain the development proposal and application, answer any questions, and respond to concerns neighbors have about the application and proposed ways to resolve conflicts.

(5)

Staff Attendance. .....Village of Clemmons staff may not attend a neighborhood meeting in a professional capacity to afford an opportunity for the meeting to focus on the merits of the project and the dialogue between the applicant and the community meeting attendees. Staff attendance is at the discretion of the Planning Director.

(D)

Written Summary

(1)

For zoning map amendment hearings and other legislative or administrative decisions, the petitioner shall provide the Planning Director with a written summary of the neighborhood meeting and may submit it with the completed application.

(2)

The written summary shall describe the scope of outreach along with issues discussed and shall be provided to Planning Staff at least eight (8) days prior to the date of the Planning Board meeting for which the subject map amendment is scheduled. Additionally, the written summary shall include:

(a)

A list of those persons and organizations contacted about the meeting and the manner and date of contact;

(b)

The date, time, and location of the meeting;

(c)

A roster of those in attendance;

(d)

A summary of the issues discussed; and

(e)

A description of any changes made as a result of the meeting.

(E)

Automatic Continuance .....If the petitioner fails to provide the required written summary to Planning staff at least eight (8) days prior to the date of the applicable Appointed or Elected Body meeting for which the subject rezoning is scheduled, the subject request shall be automatically continued to the next scheduled applicable Appointed or Elected Body public hearing meeting.

(F)

Petitioner Actions .....If the petitioner makes substantive change(s) to the application following the neighborhood meeting on topics which were not discussed at the neighborhood meeting, that fact may be noted in the staff report. Substantive change(s) to the application on topics which were not discussed at the neighborhood meeting shall require that the petitioner renotify neighboring property owners through physical or electronic mail.

( C-UDO-83 , § 47, 6-28-21; C-UDO-87 , § 4, 7-25-22)

6-1.3   APPLICATION SUBMISSION, CONTENTS, FEES

(A)

Application Submittal Requirement

(1)

All applications for all permits and approvals, or modifications of permits or approvals, shall be submitted in accordance with applicable deadlines, required forms, and required numbers of copies of each document, established and revised from time to time by the Planning Director or Zoning Officer. Applications for any zoning map amendment shall contain a description of the proposed regulation or zoning district boundary to be applied and two sets of self-addressed, stamped envelopes to all property owners entitled to received mailed notice.

(2)

Applications for zoning map amendment property description Applications for any zoning map amendment shall contain a description of the property for which the zoning map amendment is requested shall be included with the application. Such description shall be by reference to the latest available parcel identifier as maintained by the Forsyth County Tax Assessor's GIS database, and shall include reference to a recorded plat if available. If a portion of a lot(s) is included in the petition, the property description shall be: (1) a written mete or bounds description from a field survey or computed description no older than five (5) years from the date of submittal; or (2) a sealed survey clearly depicting the property included in the map amendment request. All descriptions shall be based on the United States National Spatial Reference System, shall define a closed polygon, and be performed by a professional land surveyor currently licensed by the North Carolina Board of Examiners for Engineers and Surveyors. The description or survey shall be consistent with submittal requirements. A copy of the most current deed of the property to be amended shall also be submitted.

(3)

The application form may also identify any technical studies that the Planning Director deems necessary to enable the approving authority to fully evaluate the application. Examples of technical studies include, but are not limited to traffic studies, engineering studies, geologic or hydro-geologic studies, flood studies, environmental impact assessments, noise studies, photometric (lighting) studies, or surface water management/drainage studies. Technical studies shall be paid for by the applicant and submitted with the application.

(4)

For the purpose of this Ordinance, incomplete applications are considered to have not been submitted and shall not be processed.

(B)

Fees .....Fees shall comply with Article VIII of this Ordinance.

(C)

Authority to File Application

(1)

Unless otherwise authorized in this Ordinance, the person having legal authority to act shall file an application for development review or approval under this Ordinance. The applicant shall be the landowner or the duly authorized agent of the landowner. Agents may only submit applications where the landowner indicates consent in writing, a copy of which consent shall be submitted with the application.

(2)

No amendment to the Unified Development Ordinance regulations or a zoning map that down-zones property, as defined in Chapter A, shall be initiated nor shall it be enforceable without the written consent of all landowners whose property is the subject of the down-zoning amendment, unless the downzoning amendment is initiated by the Village of Clemmons.

(3)

Proposed amendments to the Unified Development Ordinance or zoning map may be initiated by the Elected Body, Planning Board, or Planning Director.

(D)

Where to File Applications .....All applications required by this section shall be submitted to the Department of Planning or its successor, unless otherwise specified.

(E)

Contact Person Designation

(1)

The petitioner shall designate one person on the application as the primary contact who will be responsible for all notification, including meeting dates, deadlines, and requirements. The Village of Clemmons will communicate with the contact person about the application and review procedures. It is the contact person's responsibility to inform the landowners or petitioner of such information.

(2)

The petitioner shall notify the Planning Director in writing if there is to be a change in the contact person. The Planning Director and/or designee will continue to communicate with the designated contact person until the notice of change has been received.

(F)

Concurrent Applications

(1)

Where a petitioner seeks approval of two different requests for the same parcel simultaneously, the petitioner shall submit all necessary documents, plans, maps, and other required information in accordance with the provisions relating to both of the submitted applications and pay all appropriate fees for both applications.

(2)

Whenever two (2) or more forms of development approval are being processed simultaneously and this Chapter provides different time frames for review or decisionmaking for the different forms of approval, all related applications and approvals shall be completed within the longest time frame applicable.

(G)

Application Submittal Schedule .....Complete applications for boards and commissions shall be filed in accordance with the Village's filing calendar. A calendar indicating application deadlines shall be developed by the Village of Clemmons each year and shall be maintained and updated by the Village of Clemmons.

(H)

Completeness Determination

(1)

Completeness Review. .....The Planning Director shall review all applications for completeness within ten (10) to twenty (20) business days of receipt of an application. A complete application is one that:

(a)

Contains all material and information required for filing of the application;

(b)

Is in the form and number of copies required;

(c)

Is legible and printed to scale specified in Article VII Site Plan Requirements of this Ordinance (where appropriate);

(d)

Is signed by the person(s) authorized to file the application;

(e)

Includes information in sufficient detail to evaluate whether or not the application complies with the applicable review standards in the Unified Development Ordinance;

(f)

Is accompanied by appropriate fee; and

(g)

Does not precede a pre-application meeting, where required.

(2)

Application Complete. .....When an application is determined to be complete, the petitioner shall be notified and the application shall be reviewed pursuant to the procedures and standards of this Ordinance. A determination of completeness only indicates that the information provided with the application is sufficient for processing the application. It does not indicate that the application is technically compliant with this code nor that the application will be approved.

(3)

Submitted Application. .....An application determined to be complete is considered to have been submitted for the purpose of this ordinance, and is eligible for review by the Village.

(4)

Application Incomplete.

(a)

If an application is determined to be incomplete, the petitioner shall be notified of the deficiencies. The notice shall indicate that the application has been determined to be incomplete and that no further action shall be taken by the Village of Clemmons until a complete application has been received.

(b)

The petitioner may correct the deficiencies and refile the application for a new completeness review. The petitioner may also request a meeting with the Planning Director to clarify what additional materials, or what level of detail, will be required to obtain a determination of completeness.

(c)

An application will be considered withdrawn if a petitioner fails to respond to a notice of identified deficiencies within twenty (20) business days after the notification is mailed or delivered.

(I)

Permit Choice

(1)

If a development permit applicant submits a permit application for any type of development and a rule or ordinance is amended, including an amendment to any applicable development regulation, between the time the development permit application was submitted and a development permit decision is made, the development permit petitioner may choose which adopted version of the rule or ordinance will apply to the permit and use of the building, structure, or land indicated on the permit application. If the development permit applicant chooses the version of the rule or ordinance applicable at the time of the permit application, the development permit applicant shall not be required to await the outcome of the amendment to the rule, map, or ordinance prior to acting on the development permit. If an applicable rule or ordinance is amended after the development permit is wrongfully denied or after an illegal condition is imposed, as determined in a proceeding challenging the permit denial or the condition imposed, the development permit applicant may choose which adopted version of the rule or ordinance will apply to the permit and use of the building, structure, or land indicated on the permit application. Provided, however, any provision of the development permit applicant's chosen version of the rule or ordinance that is determined to be illegal for any reason shall not be enforced upon the applicant without the written consent of the applicant.

(2)

Multiple Permits for Development Project. .....Where multiple development permits are required to complete a development project, the development permit applicant may choose the version of each of the local land development regulations applicable to the project upon submittal of the application for the initial development permit. This provision is applicable only for those subsequent development permit applications filed within eighteen (18) months of the date following the approval of an initial permit. For purposes of the vesting protections of this subsection, an erosion and sedimentation control permit or a sign permit is not an initial development permit.

(J)

Pending Jurisdiction .....After consideration of a change in local government jurisdiction has been formally proposed, the local government that is potentially receiving jurisdiction may receive and process proposals to adopt development regulations and any application for development approvals that would be required in that local government if the jurisdiction is changed. No final decisions shall be made on any development approval prior to the actual transfer of jurisdiction. Acceptance of jurisdiction, adoption of development regulations, and decisions on development approvals may be made concurrently and may have a common effective date.

( C-UDO-83 , § 47, 6-28-21)

6-1.4   PUBLIC NOTICE

(A)

General Applicability

(1)

When a development application is subject to a legislative or evidentiary hearing, the Planning Director shall ensure that the hearing is scheduled for a regular meeting or a meeting specially called for that purpose by the approving authority.

(2)

All applications for development subject to public notification shall comply with the North Carolina General Statutes and the provisions of this Ordinance regarding public notification.

(B)

Content .....Notices, whether by publication or mailed, shall, at a minimum:

(1)

Identify the address or location of the property, and parcel ID subject to the application;

(2)

Specify the date, time, and place of the hearing;

(3)

Describe the purpose of the application or proposal;

(4)

Notify the public where to view the application or proposal; and

(5)

Include a statement that the public may appear at the hearing or be heard, if any, and submit written comments with respect to the application.

(C)

Types of Notice

(1)

Published Notice. .....Before adopting, amending, or repealing any development regulation authorized by North Carolina General Statutes, local act or charter, the Elected Body shall hold a legislative hearing. A notice of the hearing shall be given once a week for two successive calendar weeks in a newspaper having general circulation in the area. The notice shall be published the first time not less than ten (10) days nor more than twenty-five (25) days before the date scheduled for the hearing. In computing such period, the day of publication is not to be included but the day of the hearing shall be included.

(2)

Mailed Notice. .....When the provisions of this Ordinance require that written or mailed notice be provided, the Planning Director shall be responsible for preparing and mailing notice to specific property owners of their opportunity to be heard.

(a)

The owners of affected parcels of land and the owners of all parcels of land abutting that parcel of land shall be mailed a notice of the hearing on a proposed zoning map amendment by first-class mail at the last addresses listed for such owners on the Forsyth County tax abstracts. For the purpose of this section, properties are "abutting" even if separated by a street, railroad, or other transportation corridor. This notice must be deposited in the mail at least ten (10) but not more than twenty- five (25) days prior to the date of the hearing. If the zoning map amendment is being proposed in conjunction with an expansion of municipal extraterritorial planning and development regulation jurisdiction under North Carolina General Statutes, a single hearing on the zoning map amendment and the boundary amendment may be held. In this instance, the initial notice of the zoning map amendment hearing may be combined with the boundary hearing notice and the combined hearing notice mailed at least thirty (30) days prior to the hearing

(b)

Failure of a party to receive mailed notice shall not invalidate subsequent action. In all cases, however, the requirements for the timing of the notice and specifying the time, date, and place of a hearing and the location of the subject property shall be strictly adhered to.

(i)

Mailed notice to property owners shall be required only for the initial presentation of the proposed development at a legislative hearing. Additional mailed notice shall not be required where the application is not decided at the initial hearing unless otherwise directed by the Village.

(ii)

If the hearing is deferred or continued at the applicant's request, the applicant shall be responsible for paying any additional fees for the purposes of renotifying adjacent landowners.

(iii)

A copy of the mailed notice shall be maintained by the village for public inspection during normal business hours.

(c)

Notice to Military Bases. .....If the adoption or modification would result in changes to the zoning map or would change or affect the permitted uses of land located five miles or less from the perimeter boundary of a military base, the local government shall provide written notice of the proposed changes by certified mail, return receipt requested, to the commander of the military base not less than ten (10) days nor more than twenty-five (25) days before the date fixed for the hearing. If the commander of the military base provides comments or analysis regarding the compatibility of the proposed development regulation or amendment with military operations at the base, the governing board of the local government shall take the comments and analysis into consideration before making a final determination on the ordinance.

(d)

Notice for Large-Scale Zoning Map Amendments. .....The first-class mail notice required above shall not be required if the zoning map amendment directly affects more than fifty (50) properties, owned by a total of at least fifty (50) different landowners, and the Planning Board or Elected Body elects to use the expanded published notice provided for in this subsection. In this instance, the Planning Board or Elected Body may elect to either make the mailed notice provided for above or may as an alternative elect to publish in a newspaper having general circulation in the area an advertisement of the legislative hearing. The amendment shall not be less than one-half of a newspaper page in size, and shall meet the timing requirements of North Carolina General Statute and this Ordinance. The advertisement is effective only for landowners who reside in the area of general circulation of the newspaper that publishes the notice. Property owners who reside 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 first class mail pursuant to this Ordinance.

(3)

Posted Notice. .....When a zoning map amendment is proposed, the Planning Director shall prominently post a notice of the hearing on the site proposed for the change in zoning or on an adjacent public street or highway right-of-way. The notice shall be posted within the same time period specified for mailed notices of the hearing. When multiple parcels are included within the proposed zoning map amendment, a posting on each individual parcel is not required but the Planning Director shall post sufficient notices to provide reasonable notice to interested persons. On large parcels, interior parcels, or parcels that are difficult to see from the exterior boundary lines, additional posted signs, as may be necessary to reasonably ensure that notice is provided around the property, may be erected.

(4)

Constructive Notice.

(a)

Minor defects in any notice shall not impair the notice or invalidate proceedings pursuant to the notice if a bona fide attempt has been made to comply with applicable notice requirements. Minor defects in notice include but are not limited to:

(i)

Errors such as landowner name, title, or address in the county tax listing;

(ii)

Errors in legal descriptions, typographical or grammatical errors, or errors of actual acreage that do not impede communication of the notice to the affected parties.

(b)

Failure of a 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 hearing and the location of the subject property shall be strictly adhered to.

(c)

When village records document the publication, mailing, or posting of notices as required by this Ordinance, it shall be presumed that notice of a hearing was given as required by this section.

(D)

Notice of Evidentiary Hearings .....Notice of evidentiary hearings conducted pursuant to this Ordinance shall be mailed to the person or entity whose appeal, petition, or request is the subject of the hearing; to the owner of the property that is the subject of the hearing if the owner did not initiate the hearing; and to the owners of all parcels of land abutting the parcel of land that is the subject of the hearing. In the absence of evidence to the contrary, the Village may rely on the county tax listing to determine owners of property entitled to mailed notice. The notice shall be deposited in the mail at least ten (10) days, but not more than twenty-five (25) days, prior to the date of the hearing. Within that same time period, the Village shall also 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.

( C-UDO-83 , § 47, 6-28-21)

6-1.5   LEGISLATIVE AND EVIDENTIARY HEARINGS

(A)

Legislative Hearings

(1)

All legislative decisions as defined in Chapter A of the Unified Development Ordinance shall undergo legislative hearings.

(2)

Legislative hearings shall not be conducted until after applicable public notice requirements per Section B.6-1.4 have been satisfied.

(3)

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

(4)

Conflict of Interest for Elected Body. .....A member of the Elected Body shall not vote on any legislative decision regarding a development regulation adopted pursuant to the Clemmons Unified Development Ordinances where the outcome of the matter being considered is reasonably likely to have a direct, substantial, and readily identifiable financial impact on the member. An Elected Body member shall not vote on any zoning map amendment if the landowner of the property subject to a rezoning petition or the applicant for a text amendment is a person with whom the member has a close familial, business, or other associational relationship.

(5)

Resolution of Objection. .....If an objection is raised to a board member's participation at or prior to the hearing or vote on a particular matter and that member does not recuse himself or herself, the remaining members of the board shall by majority vote rule on the objection.

(6)

Citizen Comments. .....If any resident or landowner within the municipal limits of Clemmons submits a written statement regarding a proposed amendment, modification, or repeal to a legislative decision to the clerk to the Elected Body at least two (2) business days prior to the proposed vote on such change, the clerk shall deliver such written statement to the Elected Body.

(B)

Evidentiary Hearings

(1)

All quasi-judicial decisions as defined in Chapter A of the Unified Development Ordinance and specified in Table B.2.6 shall undergo evidentiary hearings.

(2)

Evidentiary hearings shall not be conducted until after applicable public notice requirements per section B.6-1.4(D) Public Notice have been satisfied.

(3)

Administrative Materials. .....The Zoning Officer or staff to the decision-making board shall transmit to the decision-making 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 decision-making board a copy is also provided to the appellant or petitioner and to the landowner if that person is not the appellant or petitioner. 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)

Presentation of Evidence. .....The petitioner, the local government, and any person who would have standing to appeal the decision under G.S. 160D-1402(c) 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 decision-making board. Objections regarding jurisdictional and evidentiary issues, including, but not limited to, the timeliness of an appeal or the standing of a party, may be made to the decision-making 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.

(5)

Appearance of Official New Issues. .....The official who made the decision or the person currently occupying that position, if the decision maker is no longer employed by the local government, shall be present at the evidentiary hearing as a witness. The appellant shall not be limited at the hearing to matters stated in a notice of appeal. If any party or the local government would be unduly prejudiced by the presentation of matters not presented in the notice of appeal, the decision-making board shall continue the hearing.

(6)

Oaths. .....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.

(7)

Subpoenas. .....The decision-making board through the chair or, in the chair's absence, anyone acting as chair may subpoena witnesses and compel the production of evidence. To request issuance of a subpoena, the applicant, the Village of Clemmons, and any person with standing under G.S. 160D-1402(c) may make a written request to the chair explaining why it is necessary for certain witnesses or evidence to be compelled. The chair shall issue requested subpoenas they determine to be relevant, reasonable in nature and scope, and not oppressive. The chair shall rule on any motion to quash or modify a subpoena. Decisions regarding subpoenas made by the chair may be immediately appealed to the full board. If a person fails or refuses to obey a subpoena issued pursuant to this subsection, the decision-making board or the party seeking the subpoena may apply to the General Court of Justice for an order requiring that its subpoena be obeyed, and the court shall have jurisdiction to issue these orders after notice to all proper parties.

(8)

Appeals in Nature of Certiorari. .....When hearing an appeal pursuant to B.6-2.9 or any other appeal in the nature of certiorari, the hearing shall be based on the record below, and the scope of review shall be as provided in G.S. 160D-1402(j).

(9)

Voting. .....The concurring vote of four-fifths (4 / 5) of the board shall be necessary to grant a variance. A majority of the members shall be required to decide any other quasijudicial matter or to determine an appeal made in the nature of certiorari. For the purposes of this subsection, vacant positions on the board and members who are disqualified from voting on a quasi-judicial matter under B.6-1.5(B)(11) 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.

(10)

Decision. .....The board shall determine contested facts and make its decision within a reasonable time. When hearing an appeal, 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 the powers of the official who made the decision. Every quasi-judicial decision shall be based upon competent, material, and substantial evidence in the record. Each quasijudicial decision shall be reduced to writing, reflect the decision-making board's determination of contested facts and their application to the applicable standards, and be approved by the decision-making board and signed by the chair or other duly authorized member of the board. A quasi-judicial decision is effective upon filing the written decision with the clerk to the decision-making board. The decision of the decisionmaking board shall be delivered within a reasonable time by personal delivery, electronic mail, or first-class mail to the petitioner, landowner, and any person who has submitted a written request for a copy prior to the date the decision becomes effective. The person required to provide notice shall certify to the Village of Clemmons that proper notice has been made, and the certificate shall be deemed conclusive in the absence of fraud.

(11)

Judicial Review. .....Every quasi-judicial decision shall be subject to review by the superior court by proceedings in the nature of certiorari pursuant to G.S. 160D-1402. Appeals shall be filed with the clerk of superior court by the later of thirty (30) days after the decision is effective or after a written copy thereof is given in accordance with B.6-1.5(B)(10). When first-class mail is used to deliver notice, three (3) days shall be added to the time to file the petition.

(12)

Conflict of Interest for Quasi-Judicial Decisions. .....A member of the decision-making board shall not participate in or vote on any quasi-judicial matter in a manner that would violate affected persons' constitutional rights to an impartial decision maker. Impermissible violations of due process include, but are not limited to, a member having a fixed opinion prior to hearing the matter that is not susceptible to change, undisclosed ex parte communications, a close family, business, or other associated relationship with an affected person, or a financial interest in the outcome of the matter, if an objection is raised to a member's participation and the member does not recuse themself, the remaining members shall, by majority vote, rule on the objection.

(13)

Citizen Comments. .....If any resident or landowner within the municipal limits of Clemmons submits a written statement regarding a quasi-judicial decision to the clerk to the decision-making board at least two (2) business days prior to the proposed vote on such change, the clerk shall deliver such written statement to the decision-making board. The clerk shall provide only the names and addresses of the individuals providing written comment, and the provision of such names and addresses to all members of the board shall not disqualify any member of the board from voting.

(C)

Timeframe for Action

(1)

Regularly Scheduled Meeting. .....If this Ordinance requires a hearing, then the hearing may not occur earlier than the next regularly scheduled meeting of the board, as applicable, following the publication of required notice.

(2)

Special and Emergency Meetings. .....At the discretion of the Decision-Making Board, Planning Board, or Elected Body, if this Ordinance requires a hearing, then the hearing may occur on a special or emergency meeting of the board, as applicable, following the publication of required notice.

(3)

Continuation of Legislative and Evidentiary Hearings.

(a)

The Planning Board, Elected Body, or decision-making board may continue the hearing for its consideration of the application.

(b)

The continuance may be granted by the Planning Board, Elected Body, or decision-making board on its own initiative or at the request of the petitioner or affected property owners.

(c)

The Planning Board, Elected Body, or decision-making board may also deny a request for continuation.

( C-UDO-83 , § 47, 6-28-21; C-UDO-87 , § 5, 7-25-22)

6-1.6   PROCEDURES FOR COMPLETE APPLICATIONS WITH CHANGED STATUS

(A)

Withdrawn Application

(1)

A petitioner may withdraw an application by providing written notice to the Planning Director of the petitioner's intent to withdraw the application. After such withdrawal, no further staff action on the application shall take place.

(2)

To re-initiate review, the petitioner shall re-file the application with a new fee payment, and the application shall in all respects be treated as a new application for purposes of review and scheduling.

(B)

Postponement

(1)

The petitioner may request an application be postponed to a future scheduled hearing date.

(2)

The request shall be in writing and the request may be received by the Planning Director prior to date of publication of the notice of hearing.

(3)

If the request is received by the Planning Director after the date of publication of the notice of applicable hearing, the petitioner must request the application be continued to a future scheduled hearing date not to exceed sixty (60) days from the original scheduled hearing date.

(C)

Application Termination

(1)

If a permit application is placed on hold at the request of the petitioner for a period of six (6) consecutive months or more, or the petitioner fails to respond to comments or provide additional information reasonably requested by the Village of Clemmons for a period of six (6) consecutive months or more, the application review shall be discontinued and new application and fee shall be required. The development regulations in effect at the time the new application is filed shall be applied.

(2)

Any re-filing of the application shall be treated as a new application for purposes of review, scheduling, and payment of application fees.

( C-UDO-83 , § 47, 6-28-21)

6-1.7   APPEAL

(A)

Procedures .....Appeal procedures depend on the type of petition and the appropriate authority. The petitioner should consult with the specific provisions of the Unified Development Ordinances for requirements. This section refers only to appeals to be heard by the Board of Adjustment. Nothing in this section prohibits petitioners to appeal pursuant to state law.

(1)

Board of Adjustment. .....Appeals of administrative decisions and the Historic Resources Commission shall be made to the Board of Adjustment as provided in the Unified Development Ordinances.

(2)

Court. .....A decision by the Elected Body or Board of Adjustment may be appealed to a North Carolina court of record as permitted by state statutes.

(B)

Effect

(1)

Stay of Proceedings. An appeal of a notice of violation or other enforcement order stays enforcement of the action appealed from and accrual of any fines assessed during the pendency of the appeal to the Board of Adjustment and any subsequent appeal in accordance with G.S. 160D-1402 or during the pendency of any civil proceeding authorized by law or appeals therefrom.

(2)

Imminent Peril or Transitory Nature. .....Where a stay of proceedings would cause imminent peril to life or property or the violation is transitory in nature, the official from whom the appeal is taken or the Zoning Officer may certify in writing to the Board of Adjustment hearing the appeal that the stay would cause such harm. The stay will be lifted pending hearing on the appeal. In such case, the action may be stayed only by a restraining order granted by a court of record if due cause is shown, following notice to the Zoning Officer.

( C-UDO-83 , § 47, 6-28-21)

6-1.8   POST-REVIEW ACTIONS

(A)

Resubmission of a Denied Petition

(1)

Once a petition for a zoning map amendment has been denied, no resubmission of a petition for the same request may be filed within one (1) year of its previous denial. Map amendments initiated by the Planning Director, Planning Board, and Elected Body shall be excluded from B.6-1.8(A)(1).

(2)

Once a petition for a text amendment has been denied, no resubmission of a petition for the same request may be filed within two (2) years of its previous denial. Text amendments initiated by the Planning Director, Planning Board, and Elected Body shall be excluded from B.6-1.8(A)(2).

(3)

Once a petition for an application subject to a quasi-judicial decision has been denied, an application for the same request shall be denied by the decision-making board under res judicata. The decision-making board may hear an application that has been resubmitted if there has been substantial change to the application, substantial change in relevant ordinance standards, or material conditions at the site change.

(B)

Amendments

(1)

All changes, modifications, removal, or release of the conditions of an approved plan or plat that do not qualify as minor modifications per Sections B.6-2.2 Zoning Permit, B.6- 2.6 Special Use District, and B.6-2.8 Special Use Permit of this Ordinances shall be considered major amendment. Additionally, major amendments shall include, but are not be limited to:

(a)

Changes in use;

(b)

Changes in the density of the overall development;

(c)

Any condition of approval;

(d)

Location of external access points;

(e)

The number or type of recreation facilities;

(f)

Further changes to dimensional requirements beyond what was granted by the Elected Body per B.2-1.1(C)(3)(c);

(g)

The location of bufferyards;

(h)

The number of overall buildings to be changed;

(i)

Any change resulting in increases of off-site impacts including traffic, stormwater, and similar impacts beyond what as projected for the original development approval; and

(j)

Similar changes as determined by the Planning Director or Zoning Officer.

(2)

For purposes of review and scheduling, proposed major amendments are treated as new applications subject to the applicable procedures and review criteria set forth in this Ordinance.

(C)

Modifications of Approvals

(1)

Application. .....If, at any time, the landowner with an existing development approval desires to modify the terms of that approval or the conditions attached to that approval, the owner shall submit a written application requesting such revision.

(2)

Review and Determination of Modification Status. .....Applications for modification shall be reviewed to determine whether the proposed modifications constitute a major amendment or minor modification to the existing approval.

(3)

Effect of Modification .....If approved, the modification shall then supersede the previous approval, and subsequent development on the property shall be in accord with such approved revised plan.

( C-UDO-83 , § 47, 6-28-21)

6-2.2   ZONING PERMIT

(A)

Authority .....Zoning permits shall be issues by the Zoning Officer to ensure compliance with the provisions of the Unified Development Ordinances.

(B)

Applicability .....A zoning permit shall be obtained from the Zoning Officer prior to the following:

(1)

Building or Structure. .....The construction, reconstruction, erection, enlargement, relocation, or structural alteration of any building or structure or part thereof, including any principal use permitted in Table B.2.6, Section B.2-6, Section B.3-2, or any other use or improvement which requires a permit.

(2)

Change of Use. .....Any change of use of any building or land.

(3)

Changes in classification of uses from previous zoning ordinances. .....Except when the provisions for nonconforming situations in Article V, Nonconformities, of this Ordinance apply, whenever a use that was classified under a previous zoning ordinance is increased in intensity or expanded, the Zoning Officer shall classify the entire zoning lot to the most similar current use in Table B.2.6, Permitted Uses.

(C)

Application .....An application for a zoning permit:

(1)

Shall be made to the Zoning Officer and shall be submitted in compliance with the requirements of B.6-1.3 Application Submission, Contents, and Fees.

(2)

Shall include a statement as to the intended use of the building or land.

(3)

Any such application shall be accompanied by a sketch so dimensioned or annotated so as to show the proposed building and existing buildings, if any, in exact relation to lot lines.

(4)

The water supply and sewage disposal methods of the proposed development shall have prior approval in compliance with Section B.3-10 Water Supply and Sewage Disposal.

(D)

Building Permit Serves as Zoning Permit .....A building permit issued in accordance with the State Building Code shall serve also as a zoning permit, and in such cases the cost of the building permit shall be the only fee charged. A minimum fee as specified in Section B.8 Fees shall be charged for any zoning permit issued that does not require a building permit.

(E)

Posting

(1)

Any person performing the work covered by a zoning permit shall post said permit on the premises before the work begins and shall keep such permit posted on the premises until the certificate of occupancy for the premises is issued.

(2)

Any time limitation relating to appeals from the issuance of a building permit shall run from the date the building permit is posted on the premises.

(3)

The party to whom the building permit is issued shall be furnished a copy of the permit on which such person may certify as to the date of the posting of the permit, and return such certificate to the Zoning Officer.

(4)

The date certified to the Zoning Officer as the date of posting shall be the date from which any time limitations regarding appeals shall run. If the recipient of the permit does not return the certificate of posting to the Zoning Officer, there shall be a rebuttable presumption that the permit was not posted as required by this section.

(F)

Action Within One Year .....No zoning permit shall be valid unless the development projected has substantially commenced per Section B.1-5.2(F)(1) within one year of issuance per Section B.1-5.2(E)(2) or renewed after written application.

(G)

Revocability .....Any permit or document issued by the Zoning Officer shall be revocable should any of the conditions under which it is issued not be complied with.

(H)

Alterations to Approval

(1)

Major amendments. .....Any proposed major amendments as defined in Section B.6-1.8(B)(1) involving development approvals and site-specific vesting plans shall adhere to B.6-1.8(B)(2).

(2)

Minor Modifications. .....The Zoning Officer is authorized to review and approve administratively a minor modification to an authorized development approval requiring a zoning permit:

(a)

Site Design. .....Site design minor modifications are limited to adjustments to the design of a site plan. In addition to the general limitations for minor modifications, a site design minor modification must comply with zoning standards and other applicable conditions of the approval; be limited to minor changes such as, without limitation, a minor adjustment to building location including dwelling units that occupy one zoning lot, fences, walls, planting and outside lighting; building elevations of the building wall, building orientation, and internal building offsets; street configuration or internal circulation, signage, or a minor adjustment to utility alignment.

(3)

Appeals and Variances. .....A decision on minor modification may be appealed to the Board of Adjustment as an administrative determination. A petitioner for a minor modification also may apply for a variance from the Board of Adjustment.

( C-UDO-83 , § 47, 6-28-21)

6-2.3   TEMPORARY USE PERMIT

(A)

Authority .....Temporary use permits shall be issued or renewed by the Zoning Officer in compliance with B.2-7 provided that such permits are issued only upon written agreement by the landowner to remove the structures or uses upon expiration of the permit

(B)

Application .....All applications for temporary use permits shall be made to the Zoning Officer and shall be submitted in compliance with the requirements of B.6-1.3.

(C)

Requirements .....Before the issuance of a temporary use permit, the Zoning Officer shall determine that all other pertinent regulations which may apply to such proposed use are complied with.

( C-UDO-83 , § 47, 6-28-21)

6-2.4   SITE PLAN REVIEW

(A)

Purpose .....Site plan review is required to ensure adequate provision of public services, the wellbeing of citizens, and preservation of environmental quality.

(B)

Authority .....The Planning Board shall review all requests for permits requiring site plan review, as designated in Table B.2.6 to assure the Use Conditions of Section B.2.5 and other provisions of this Ordinance are met.

(C)

Process .....A site plan review application by the Planning Board shall be processed as described in this section.

(1)

Pre-Application Meeting. .....Applicants are required to attend a pre-application meeting pursuant to section B.6-1.1 Pre-Application Meeting.

(2)

Application Submission and Staff Review. .....An application for site plan review shall be submitted in compliance with the requirements of section B.6-1.3, Application Submission, Content, and Fees.

(D)

Decision Making

(1)

Approval and Conditions. .....The Planning Board shall approve any requests for permits which meet all the requirements of the Unified Development Ordinances and deny any such requests which do not meet all the requirements of the Unified Development Ordinances. The Planning Board may, as part of its approval, require the following conditions to reduce impacts associated with the project:

(a)

Public right-of-way dedication to meet projected needs for roads shown on the Transportation Plan, or for other roads as determined by the Village of Clemmons or North Carolina Department of Transportation.

(b)

Road and/or sidewalk improvements as recommended by the Village of Clemmons or North Carolina Department of Transportation.

(c)

Access control, including the location, number and dimensions of driveways; and combining driveways with and providing connections to adjacent properties, as recommended by Planning Staff or other appropriate agencies.

(d)

Reorientation of parking areas or building access to insure on-site traffic flow and pedestrian safety.

(e)

Dedication of granting of easements for greenways identified on the adopted Greenway Plan.

(f)

Screening and locations of dumpsters, loading areas, on-site utilities, or other visually obtrusive features as determined by the Planning Board.

(g)

Space for public transit vehicle maneuvering and/or public transit shelter if determined necessary by Public Transit Authorities.

(h)

Stormwater management plans as recommended by the Planning staff and appropriate agencies.

(i)

Location and screening of improvements or activities which may generate substantial noise.

(j)

Compliance with the recommendations of the Village of Clemmons or State of North Carolina or other governmental departments reviewing the projects.

(k)

Compliance with all applicable conditions previously approved for the property in question.

(2)

Special Use District Zoning Map Amendment. .....No separate site plan review by the Planning Board is required for a use which is permitted as a part of a special use zoning district adopted by the Elected Body and which meets the requirements of the Unified Development Ordinances. In addition to consideration of Section B.6-2.4(D)(1), the Planning Board may consider the following additional conditions:

(a)

Preservation of unique natural or constructed features, including retention of existing vegetation;

(b)

Consolidation of signage for shopping centers or multiple use projects;

(c)

Reduction in overall density for residential projects; and

(d)

Reduction or limitation in the uses requested.

(E)

Staff Changes .....Staff may only modify site plans per minor modifications specified in Article VI Administrative Provisions of this Ordinance.

( C-UDO-83 , § 47, 6-28-21)

6-2.5   ZONING MAP AMENDMENT—GENERAL USE DISTRICT

(A)

Purpose .....The purpose of this section is to provide a uniform means for reviewing and deciding general amendments to the Official Zoning Map for the Village of Clemmons.

(B)

Authority

(1)

The Elected Body may from time to time, on its own motion or petition, after following notification and hearing procedures as provided by law, amend, supplement, change, modify, or repeal the boundaries or regulations herein or subsequently established.

(2)

A petition by an interested person to amend or change the district boundaries shall be submitted to the Elected Body through and reviewed by the Planning Board which shall consider its merit and make a recommendation to the Elected Body.

(C)

Process .....A zoning map amendment application shall be processed as described in this section.

(1)

Pre-Application Meeting. .....Applicants are required to attend a pre-application meeting pursuant to section B.6-1.1 Pre-Application Meeting.

(2)

Neighborhood Meeting. .....Applicants are required to hold a neighborhood meeting pursuant to section B.6-1.2 Neighborhood Meeting.

(3)

Application Submission and Staff Review.

(a)

An application for zoning map amendment shall be submitted in compliance with the requirements of section B.6-1.3, Application Submission, Content, and Fees.

(b)

No Referral to Use. .....If the petitioner elects to petition for rezoning to any general use district, the petitioner may not refer, either in the petition or at any hearing related to the petition, to the use intended for the property if the rezoning is granted.

(c)

Petitioner Considerations. .....It is incumbent upon the petitioner to:

(i)

Consider the size of the tract in context;

(ii)

Consider the petitions compatibility with the existing comprehensive plan;

(iii)

Consider the benefits/detriments of the map amendment and the relative magnitude said benefits/detriments would have to all stakeholders; and

(iv)

Consider the relationship between the proposed and current uses of the parcel under consideration for rezoning and conterminous parcels.

(d)

The Planning Director may make a recommendation on the proposed zoning map amendment application.

(4)

Legislative Hearing. .....In no case shall a legislative decision by the Elected Body be taken changing the district boundaries hereby established until a legislative hearing per B.6-1.5(A) has been held by the Elected Body at which stakeholders shall have an opportunity to be heard.

(D)

Decision Making

(1)

Planning Board Consideration.

(a)

The Planning Board shall consider and make recommendations to the Elected Body at a regularly scheduled meeting.

(b)

The Planning Board shall make its recommendation to the Elected Body in writing and shall recommend that a petition be approved, approved as revised, denied, or request further study.

(c)

The Planning Board shall provide a written recommendation to the Elected Body that addresses plan consistency and other matters as deemed appropriate by the Planning Board per G.S. 160D-604.

(d)

Petitions for amendments that receive a favorable recommendation from the Planning Board, or petitions on which the Planning Board fails to take any action within sixty (60) days after the Planning Board's public meeting, may be scheduled for legislative hearing before the Elected Body.

(2)

Action by the Elected Body.

(a)

In deliberating each petition for zoning map amendment, the Elected Body may consider such information and assertions as are presented in the petition as well as evidence presented and arguments made at the legislative hearing. Additional considerations by the Elected Body may include, but shall not be limited to:

(i)

Whether the proposal is consistent with the purpose statement of the requested zoning districts;

(ii)

Whether the use permitted under the proposed classification would be compatible with uses permitted on other property in the vicinity;

(iii)

Whether changing conditions have substantially affected the area included in the petition; and

(iv)

Whether the proposed amendment is in conformance with the Clemmons Community Compass and with Legacy. After conclusion of the legislative hearing, Elected Body shall decide in accordance with its rules of procedure.

(b)

In making its decision, the Elected Body shall approve a written statement of consistency and a statement of reasonableness in accordance with G.S. 160D-605.

(c)

Applications filed as either a general zoning map amendment or special use district map amendment may not be converted to the other form of map amendment application during the review process and shall instead be withdrawn and resubmitted as a new application.

(d)

Elected Body Authority.

(i)

The Elected Body may change the existing zoning classification of the area covered by a petition, or any part or parts thereof, to the classification requested or to a different classification(s) without the necessity of withdrawal or modification of the petition.

(ii)

Nothing in this section shall constitute a limitation upon the authority of the Elected Body or the Planning Board to consider or reconsider, upon their own motion, any changes to the district boundaries of the zoning ordinance, or any zoning or rezoning of property.

(iii)

Nothing in this section shall affect the validity or effectiveness of any recommendation made by the Planning Board prior to the effective date of this amendment, and the Elected Body may lawfully act on such recommendation as if it had been made by the Planning Board subsequent to the effective date of this amendment.

(E)

Post-decision Actions

(1)

Appeals. .....A cause of action as to the validly of this chapter, or an amendment thereto, shall be brought within 60 days, as provided by G.S. 160D-1405.

(F)

Records .....After the adoption of any amendment to the Official Zoning Map, the Planning Director shall send to the Planning Board and to the office of the Register of Deeds official notification of such adoption. It shall be the duty of the Planning Board and the office of the Register of Deeds to maintain systematic records of such ordinances and to make said records accessible to the public for inspection at reasonable times.

(G)

Notice to North Carolina Department of Transportation .....The Zoning Officer shall give written notice to the Department of Transportation of the establishment or revision of any commercial and industrial zones within 660 feet of the right-of-way of interstate or primary highway systems per § 136-136 and 136-153 of State law.

( C-UDO-83 , § 47, 6-28-21; C-UDO-87 , § 6, 7-25-22)

6-2.6   ZONING MAP AMENDMENT—SPECIAL USE DISTRICT

(A)

Purpose .....The purpose of this section is to provide a uniform means for reviewing and deciding amendments to the Official Zoning Map for the establishment of a Special Use Zoning (S) District. The review process established in this Ordinance provides for the accommodation of such uses by a reclassification of the property into a Special Use Zoning District, subject to reasonable conditions as the Elected Body determines to be desirable in promoting public health, safety, and general welfare.

(B)

Process .....A special use district zoning map amendment petition shall be processed as described in this section.

(1)

Pre-Application Meeting. .....Applicants are required to attend a pre-application meeting pursuant to section B.6-1.1

(2)

Neighborhood Meeting. .....Applicants are required to hold a neighborhood meeting pursuant to section B.6-1.2.

(3)

Application Submission and Staff Review.

(a)

Generally Applicable Requirements. .....An application for a special use district zoning map amendment shall be submitted in compliance with the requirements of section B.6-1.3, Application Submission, Content, and Fees.

(b)

Site Plan. .....Property may be rezoned to a special use zoning district only in response to and consistent with a petition submitted by the landowners of all the property to be included in the district.

(i)

An application for special use district zoning map amendment shall include a site plan per Article VII Site Plan Requirements of this Ordinance and supporting information.

(ii)

The application must specify the actual use(s) intended, one or more of the permitted uses listed in Table B.2.6 Permitted Use Table, for the entire tract or any part or parts thereof, for the property specified in the petition, and the proposed use(s) must be a use(s) permitted in the corresponding general use district.

(iii)

All requirements of the general use zoning shall be met. The petitioner must formally request changes to dimensional standards per B.2-1.1(C).

(c)

One and Two-Phase Petitions. .....The petitioner may elect to submit a special use zoning district either as a one-phase petition or as a two-phase petition.

(i)

An application for one and two-phase petitions special use district zoning map amendment application shall include a site plan per Article VII Site Plan Requirements of this Ordinance and supporting information.

(ii)

Second Phase Acceptance The second phase of a two-phase petition shall not be accepted until the first phase has been approved by the Elected Body.

(iii)

Final Development Plan The final development plan required for the second phase of a two-phase rezoning approval shall be submitted pursuant to Article VII Site Plan Requirements of this Ordinance.

(d)

Petitioner Consideration. .....Special use Zoning District classification is appropriate for instances where firm plans for development are in place. The petitioner should consider whether it is appropriate to request a special use district or a general use map amendment. Additionally, the petitioner should consider Section B.6-2.5(C)(3)(c).

(4)

Legislative Hearing. .....In no case shall a legislative decision by the Elected Body be taken changing the district boundaries hereby established until a legislative hearing per B.6- 1.5(A) has been held by the Elected Body at which stakeholders shall have an opportunity to be heard.

(C)

Decision Making

(1)

Approval and Conditions.

(a)

Special use zoning district decisions shall include consideration of reasonable conditions per Section B.2-1.1(C).

(b)

If all requirements and conditions are accepted by the petitioner, the Elected Body shall rezone the property and issue a special use zoning district permit, attaching thereto and incorporating therein the conditions mentioned immediately above.

(2)

Planning Board Consideration.

(a)

The Planning Board shall consider and make recommendations to the Elected Body at a regularly scheduled meeting.

(b)

The Planning Board shall make its recommendation to the Elected Body in writing and shall recommend that a petition be approved, approved with conditions, denied, or request further study.

(c)

The Planning Board shall provide a written recommendation to the Elected Body that addresses plan consistency and other matters as deemed appropriate by the Planning Board per G.S. 160D-604.

(d)

Petitions for amendments that receive a favorable recommendation from the Planning Board, or petitions on which the Planning Board fails to take any action within sixty (60) days after the Planning Board's public meeting, may be scheduled for legislative hearing before the Elected Body.

(3)

Action by the Elected Body.

(a)

In deliberating each petition for zoning map amendment, the Elected Body may consider such information and assertions as are presented in the petition as well as evidence presented and arguments made at the legislative hearing. Additional considerations by the Elected Body may include, but shall not be limited to:

(i)

Whether the proposal is consistent with the purpose statement of the requested zoning districts;

(ii)

Whether the use permitted under the proposed classification would be compatible with uses permitted on other property in the vicinity;

(iii)

Whether changing conditions have substantially affected the area included in the petition; and

(iv)

Whether the proposed amendment is in conformance with the Clemmons Community Compass and with Legacy. After conclusion of the legislative hearing, Elected Body shall decide in accordance with its rules of procedure.

(b)

In making its decision, the Elected Body shall approve a written statement of consistency and a statement of reasonableness in accordance with G.S. 160D-605.

(c)

Applications filed as either a general zoning map amendment or special use district zoning map amendment may not be converted to the other form of map amendment application during the review process and shall instead be withdrawn and resubmitted as a new application.

(d)

Elected Body Authority.

(i)

The Elected Body may change the existing zoning classification of the area covered by a petition, or any part or parts thereof, to the classification requested or to a different classification(s) without the necessity of withdrawal or modification of the petition.

(ii)

Nothing in this section shall constitute a limitation upon the authority of the Elected Body or the Planning Board to consider or reconsider, upon their own motion, any changes to the district boundaries of the zoning ordinance, or any zoning or rezoning of property.

(iii)

Nothing in this section shall affect the validity or effectiveness of any recommendation made by the Planning Board prior to the effective date of this amendment, and the Elected Body may lawfully act on such recommendation as if it had been made by the Planning Board subsequent to the effective date of this amendment.

(4)

Effect of Approval.

(a)

If an application for special use district zoning is approved, the development and use of the property shall be governed by the predetermined ordinance requirements applicable to the district's classification, the approved site plan for the district, and any additional approved rules, regulations, and conditions, all of which shall constitute the zoning regulations for the approved district and are binding on the property as an amendment to these regulations and the zoning map.

(b)

If an application is approved, only those uses, buildings, and structures indicated on the approved application and site plan shall be allowed on the subject property.

(c)

Following the approval of an application for special use district zoning, the subject property shall be identified on the zoning maps by the appropriate district designation. A parallel special use district zoning shall be identified by the same designation as the underlaying general district followed by the letter "S" (e.g., RMS).

(d)

No permit shall be issued for any development activity within a special use district except in accordance with the approved application and site plan for the district.

(e)

Any violation of the approved site plan or any rules, regulation, and conditions for the district shall be treated the same as any other violation of this Ordinance and shall be subject to the same remedies and penalties per Article IX Authorities and Enforcement of this Ordinance.

(D)

Post-decision Actions

(1)

Alterations to Approval.

(a)

Major Amendments. .....Any proposed major amendments to special use districts as defined in Section B.6-1.8(B)(1) shall follow the same approval process specified in B.6-1.8(B)(2).

(b)

Minor Modifications. .....The Planning Director or designee is authorized to review and approve administratively a minor modification to an approved special use zoning district, subject to the general limitations per Section B.6-1.8(B).

(i)

Site Design. .....Site design minor modifications are limited to adjustments to the design of the site plan included as part of a special use district zoning application. In addition to the general limitations for minor modifications, a site design minor modification must comply with underlying zoning standards and other applicable conditions of the approval; be limited to minor changes such as a minor adjustment to building location including changes to dwelling units that occupy one zoning lot, fences, walls, planting and outside lighting; building elevations not exceeding ten (10) percent of each building wall per building, building orientation, and internal building offsets; street configuration or internal circulation, signage, or a minor adjustment to utility and easement alignment.

(ii)

Minor modification requests shall not have such an impact as to be a significant departure from the site plan approved by the Elected Body.

(iii)

Any request for minor modifications shall be pursuant to a written letter, signed by the landowner, detailing the requested change(s) with detailed reasons for the requested change(s). Upon request, the applicant shall provide additional information.

(c)

Reserved.

(d)

Changes to Individual Parcels within a Special Use Zoning District. .....For a special use zoning district applicable to multiple parcels, the owners of individual parcels may apply for minor modifications or major amendments so long as the change would not result in other properties failing to meet the terms of the conditions. Any approved changes shall only be applicable to those properties whose owners petitioned for the change.

(2)

Appeals. .....A cause of action as to the validity of this chapter, or amendment thereto, shall be brought within sixty (60) days as provided in G.S. 160D-1405.

(E)

Records .....After the adoption of any amendment to the Official Zoning Map, the Planning Director shall send to the Planning Board and to the office of the Register of Deeds official notification of such adoption. It shall be the duty of the Planning Board and the office of the Register of Deeds to maintain systematic records of such ordinances and to make said records accessible to the public for inspection at reasonable times.

(F)

Notice to North Carolina Department of Transportation .....The Zoning Officer shall give written notice to the Department of Transportation of the establishment or revision of any commercial and industrial zones within 660 feet of the right-of-way of interstate or primary highway systems per § 136-136 and 136-153 of State law.

( C-UDO-83 , § 47, 6-28-21; C-UDO-87 , § 7, 7-25-22)

6-2.7   UNIFIED DEVELOPMENT ORDINANCES TEXT AMENDMENT

(A)

Purpose .....The purpose of this section is to provide a uniform means for reviewing and deciding proposals to amend, supplement, change, modify, or repeal development regulations to the Unified Development Ordinances.

(B)

Process .....A text amendment application shall be processed as described in this section.

(1)

Pre-Application Meeting. .....Applicants are required to attend a pre-application meeting pursuant to section B.6-1.1 Pre-application Meeting.

(2)

Application Submission and Staff Review.

(a)

An application for a text amendment shall be submitted in compliance with the requirements of section B.6-1.3 Application Submission, Content, and Fees.

(b)

When reviewing and making a recommendation, the Planning Director may consider whether a proposed text amendment:

(i)

Corrects an error or meets the challenge of some changing condition, trend, or fact;

(ii)

Responds to changes in state law;

(iii)

Is consistent with applicable adopted plans and policies;

(iv)

Does not conflict with any specific objective of the Clemmons Community Compass;

(v)

Is generally consistent with the stated purpose and intent of this Ordinance;

(vi)

Constitutes a benefit to the Village of Clemmons as a whole and is not solely for the benefit of a particular landowner or landowners at a point in time;

(vii)

Impacts significantly the natural environment, including air, water, noise, stormwater management, wildlife and vegetation; and

(viii)

Impacts significantly existing conforming development patterns, standards, or zoning regulations.

(3)

Legislative Hearing. .....In no case shall a legislative decision by the Elected Body be taken amending, changing, supplementing, modifying, or repealing the development regulations established until a legislative hearing per section B.6-1.5 has been held by the Elected Body at which parties in interest and citizens shall have an opportunity to be heard.

(C)

Decision Making

(1)

Planning Board Considerations.

(a)

The Planning Board shall consider and make recommendations to the Elected Body at a regularly scheduled meeting.

(b)

The Planning Board shall make its recommendation to the Elected Body in writing and shall recommend that a petition be approved, approved as revised, denied, or request further study.

(c)

The Planning Board shall provide a written recommendation to the Elected Body that addresses plan consistency and other matters as deemed appropriate by the Planning Board per G.S. 160D-604.

(d)

Within ninety (90) days of receipt of a complete application for text amendment, the Planning Board shall make its recommendation to the Elected Body. If no recommendation is made within the ninety (90) day time period the Elected Body may act on the application without further involvement of the Planning Board.

(2)

Action by the Elected Body.

(a)

Following the recommendation of the Planning Board, or expiration of the Planning Board review period without a recommendation, the Elected Body shall conduct a legislative hearing.

(b)

In deliberating each petition for text amendment, the Elected Body may consider such information and assertions as are presented in the petition as well as evidence presented and arguments made at the legislative hearing.

(c)

The Elected Body shall approve, approved as revised, deny, or send a proposed amendment back to the Planning Board for additional consideration.

(d)

In making its legislative decision, the Elected Body shall approve a written statement of consistency in accordance with G.S. 160D-605.

(e)

Elected Body Authority.

(i)

Nothing in this section shall constitute a limitation upon the authority of the Elected Body or the Planning Board to consider or reconsider, upon their own motion, any changes and amendments to the Unified Development Ordinances.

(ii)

Nothing in this section shall affect the validity or effectiveness of any recommendation made by the Planning Board prior to the effective date of this amendment, and the Elected Body may lawfully act on such recommendation as if it had been made by the Planning Board subsequent to the effective date of this amendment.

(D)

Post-decision Actions

(1)

Appeals. .....A cause of action as to the validly of a development regulation adopted, shall be brought within one (1) year as provided by G.S. 160D-1405. A challenge to an ordinance on the basis of an alleged defect in the adoption process shall be brought within three (3) years as provided by G.S. 160D-1405.

( C-UDO-83 , § 47, 6-28-21)

6-2.8   SPECIAL USE PERMIT

(A)

Purpose

(1)

The purpose of this section is to establish a procedure for consideration of an application for a special use permit.

(2)

Special use permits add flexibility to the zoning ordinance. Subject to high standards of planning and design, certain property uses may be allowed in a district where these uses would not otherwise be acceptable. By means of controls exercised through the special use permit procedures, property uses which would otherwise be undesirable in certain districts can be developed to minimize any adverse effects they might have on surrounding properties.

(B)

Authority .....Following an evidentiary hearing, special use permits may be issued by the decision-making board, unless exempted per section B.6-2.8(H), for permit as designated in Table B.2.6 and section B.2-5.

(C)

Process .....A special use permit application shall be processed as described in this section

(1)

Pre-Application Meeting. .....Applicants are required to attend a pre-application meeting pursuant to section B.6-1.1 Pre-Application Meeting.

(2)

Application Submission and Staff Review. .....An application for a text amendment shall be submitted in compliance with the requirements of section B.6-1.3 Application Submission, Content, and Fees.

(3)

Site Plan. .....An application for a special use permit shall include a site plan per Article VII Site Plan Requirements of this Ordinance and supporting information.

(4)

Evidentiary Hearing. .....In no case shall a quasi-judicial decision issuing a special use permit by the decision-making board be made until an evidentiary hearing per B.6-1.5 has been held by the decision-making board.

(D)

Decision Making

(1)

Review Criteria and Conditions of Approval.

(a)

Reasonable and appropriate conditions and safeguards may be imposed upon special use permits. 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. Conditions and safeguards imposed under this subsection shall not include requirements for which the Village of Clemmons does not have authority under statute to regulate nor requirements for which the courts have held to be unenforceable if imposed directly by the Village of Clemmons, including, without limitation, taxes, impact fees, building design elements within the scope of G.S. 160D-702(b), driveway-related improvements in excess of those allowed in G.S. 136-18(29) and G.S. 160A-307, or other unauthorized limitations on the development or use of land.

(2)

Action by the Decision-Making Board.

(a)

Required Findings. .....The decision-making board shall issue a special use permit only when the Board makes an affirmative finding as follows:

(i)

That the use will not materially endanger the public health or safety if located where proposed and developed according to the application and plan as submitted and approved;

(ii)

That the use meets all required conditions and specifications;

(iii)

That the use will not substantially injure the value of adjoining or abutting property, or that the use is a public necessity; and

(iv)

That the location and character of the use, if developed according to the application and plan submitted and approved, will be in harmony with the area in which it is to be located and in general conformity with Clemmons Community Compass.

(b)

Except with regard to the conversion of nonconforming uses in Section B.5-2, no provision of this Ordinance shall be interpreted as conferring upon the decisionmaking board the authority to approve an application for a special use permit for any use unless authorized in Table B.2.6. In approving an application for the issuance of a special use permit, the decision-making board may impose additional reasonable and appropriate conditions and safeguards to protect the public health and safety, and the value of neighboring properties, and the health and safety of neighboring residents.

(c)

Decision-Making Board Procedure for Voting on Special Use Permits.

(i)

A The concurring vote of a simple majority by the Board shall be necessary to issue a special use permit.

(ii)

For the purposes of this subsection, vacant positions on the Board and members who are disqualified from voting on a quasi-judicial decision shall not be considered members of the Board for calculation of the requisite majority if there are no qualified alternatives to take the place of such members.

(E)

Special Use Permit and Written Consent .....A special use permit shall not go into effect until those conditions approved and consented to by both the decision-making board and landowner or permit applicant are in writing and signed by the landowner and permit applicant.

(F)

Permit Duration .....Special use permits are subject to the site-specific vesting plan provisions in Section B.1-5.2 Vested Rights.

(G)

Post-decision Actions

(1)

Alterations to approval.

(a)

Major amendments Any proposed major amendments to a special use permit as defined in Section B.6-1.8(B)(1) shall follow the same approval process specified in B.6-1.8(B)(2).

(b)

Minor Modifications. .....The Planning Director, Zoning Officer or designee is authorized to review and approve administratively a minor modification to an approved special use permit, subject to the general limitations per Section B.6-1.8(B). The minor modification authorized herein are intended to provide relief where conditions, established by the special use permit granted, create a hardship based upon a unique physical attribute of the property itself or some other factor unique to the property which is not known at the time of approval and which subsequently rendered the land difficult or impossible to use due to the condition(s) imposed. Such modifications shall be limited to the following:

(i)

Site Design. .....Site design minor modifications are limited to adjustments to the design of the site plan included as part of a special use permit. In addition to the general limitations for minor modifications, a site design minor modification must comply with underlying zoning standards and other applicable conditions of the approval; be limited to minor changes such as a minor adjustment to building location including dwelling units that occupy one zoning lot, fences, walls, planting and outside lighting; building orientation, and internal building offsets; street configuration or internal circulation, signage, or a minor adjustment to utility and easement alignment.

(ii)

Minor modification requests shall not have such an impact as to be a significant departure from the special use permit approved by the decision-making board.

(iii)

Any request for minor modifications shall be pursuant to a written letter, signed by the landowner, detailing the requested change(s) with detailed reasons for the requested change(s). Upon request, the applicant shall provide additional information.

(c)

Changes to Individual Parcels within a Special Use Permit. .....For a special use permit applicable to multiple parcels, the owners of individual parcels may apply for minor modifications or major amendments so long as the change would not result in other properties failing to meet the terms of the conditions. Any approved changes shall only be applicable to those properties whose owners petitioned for the change.

(H)

Special Use District .....No separate special use permit is required for a use which is permitted as a part of a special use zoning district adopted by the Elected Body and which meets the requirements of this Ordinance.

( C-UDO-83 , § 47, 6-28-21)

6-2.9   CERTIFICATE OF APPROPRIATENESS

(A)

Requirements for Certificate of Appropriateness for Local Historic Landmarks (LHL)

(1)

From and after the designation of a Local Historic Landmark (LHL), no designated portion of any building or other structure (including masonry walls, fences, light fixtures, steps, pavement, or other appurtenant features); nor any above-ground utility structure; nor any type of outdoor advertising sign; nor important landscape and natural features may be erected, altered, restored, moved, or demolished on such designated historic landmark until after the property owner or his/her designated agent has determined that the project is in compliance with the Design Review Standards either through consultation with Commission staff or review of the Design Review Standards.

(2)

The City/County/Town/Village shall require a Certificate of Appropriateness to be issued by the Commission prior to the issuance of a building permit or other permit granted for the purposes of constructing, altering, moving, or demolishing structures, which Certificate may be issued subject to reasonable conditions necessary to carry out the purposes of this Ordinance.

(3)

If a Certificate of Appropriateness is required, then the applicant shall be provided with an application form and instructions. Certificates of Appropriateness shall be issued or denied in accordance with the Standards for Review found in Section B.6-2.9(F).

(4)

A Certificate of Appropriateness shall be issued prior to any application for a building permit being made. Any building permit or other such permit not issued in conformity with this section shall be invalid. A Certificate of Appropriateness shall be required for all activities specified in this section, whether a building permit is otherwise required or not.

(5)

For the purposes of the section, the term "designated portion" shall mean any portion of a designated historic landmark that was included in the ordinance designating the landmark, including the main structure or structures, the interior or portions of the interior, any outbuildings or secondary structures, site elements, and landscaping.

(6)

Where the exterior of a building or structure is designated as an historic landmark, the term "exterior features" shall mean the architectural style, general design, and general arrangement of the exterior of a building or other structure, including the kind and texture of the building material, the size and scale of the building or other structure, and the type and style of all windows, doors, light fixtures, signs and other appurtenant features. In the case of outdoor advertising signs, the term "exterior features" shall be construed to mean the style, material, size, and location of all such signs. These "exterior features" may include historic signs, color, and significant landscape, archaeological, and natural features of the area.

(B)

Requirements for Certificate of Appropriateness in Historic and Historic Overlay Districts

(1)

Within an H or HO District, no exterior portion of any building or other structure (including masonry walls, fences, light fixtures, steps, pavement, or other appurtenant features); nor any above-ground utility structure; nor any type of outdoor advertising sign; nor important landscape and natural features may be erected, altered, restored, moved, or demolished until after the property owner or his/her designated agent has determined that the project is in compliance with the Design Review Standards either through consultation with Commission staff or review of the appropriate Design Review Standards.

(2)

The City/County/Town/Village shall require a Certificate of Appropriateness to be issued by the Commission prior to the issuance of a building permit or other permit granted for the purposes of constructing, altering, moving, or demolishing structures, which Certificate may be issued subject to reasonable conditions necessary to carry out the purposes of this Ordinance.

(3)

If a Certificate of Appropriateness is required, then the applicant shall be provided with an application form and instructions. Certificates of Appropriateness shall be issued or denied in accordance with the Standards for Review found in section B.6-2.9(F).

(4)

A Certificate of Appropriateness shall be issued prior to any application for a building permit being made. Any building permit or other such permit not issued in conformity with this section shall be invalid. A Certificate of Appropriateness shall be required for all activities specified in this section, whether a building permit is otherwise required or not.

(5)

For the purposes of the section, the term "exterior features" shall include the architectural style, general design, and general arrangement of the exterior of a building or other structure, including the kind and texture of the building material, the size and scale of the building or other structure, and the type and style of all windows, doors, light fixtures, signs and other appurtenant features. In the case of outdoor advertising signs, the term "exterior features" shall be construed to mean the style, material, size, and location of all such signs. These "exterior features" may include historic signs, color, and significant landscape, archaeological, and natural features of the area.

(C)

Circumstances not requiring Certificate of Appropriateness

(1)

No certificate of appropriateness shall be required for:

(a)

The routine maintenance or repair, as defined in the applicable Design Review Standards, of any exterior architectural feature in an H or HO District or on a Local Historic Landmark (LHL) which does not involve a change in design, material, or outer appearance;

(b)

The construction, reconstruction, alteration, restoration, moving, or demolition of any such feature which the building inspector or similar official shall certify in writing to the property owner and to the Commission is required by the public safety because of an unsafe or dangerous condition; and

(c)

The maintenance of any existing above-ground utility structure or, in the event of an emergency, the immediate restoration of any existing above-ground utility structure.

(D)

Procedures .....The following procedures shall govern the issuance of a Certificate of Appropriateness:

(1)

Applications. .....Application for a Certificate of Appropriateness shall be submitted to Commission staff on forms provided. The Commission shall, in its Rules of Procedure, require such data and information as is reasonably necessary to evaluate the nature of the application. An application for a Certificate of Appropriateness shall not be considered complete until all required information has been submitted. For properties within H and HO Districts, the names and mailing addresses of the property owners filing the application and the names and addresses of the property owners within one hundred (100) feet on all sides of the property which is the subject of the application must also be filed.

(2)

Application to Historic Resources Commission. .....Commission staff shall transmit the Certificate of Appropriateness application, together with the supporting information and material, to the Commission for consideration.

(3)

Notice and Hearing Within H and HO Districts. .....Commission staff will make a reasonable attempt to identify and notify by mail the owners of any property located within one hundred (100) feet on all sides of the property which is the subject of the application. Prior to issuance or denial of a Certificate of Appropriateness, the Commission shall give the applicant and other property owners and/or residents likely to be affected by the application an opportunity to be heard.

(4)

Viewing Site. .....As part of its review procedure, the Commission may, solely in performance of its official duties and only at reasonable times, enter upon private lands to view the premises. However, no member, employee, or agent of the Commission may enter any private building or structure without the express permission of the owner or occupant thereof. Additionally, the Commission may seek the advice of the North Carolina Division of Archives and History or such other expert advice as the Commission may deem necessary.

(5)

Time for Action. .....The Commission shall act upon complete applications within one hundred twenty (120) calendar days after the filing, unless an extension of time has been mutually agreed upon between the Commission and the applicant. Otherwise, failure to act upon a complete application shall be deemed to constitute approval and a Certificate of Appropriateness shall be issued.

(6)

Form of Decision. .....All formal actions of the Commission shall be set forth in writing. A decision of the Commission shall be effective upon filing the written decision with the Historic Resource Officer of the Commission. The decision of the Commission shall be delivered by personal delivery, electronic mail, or by first-class mail to the applicant, property owner, and to any person who has submitted a written request for a copy, prior to the date the decision becomes effective. The person required to provide notice shall certify that proper notice has been made.

(7)

Time Limits. .....Unless otherwise designated by the Commission, all work approved under a Certificate of Appropriateness shall be completed within three (3) years of the effective date of the Certificate of Appropriateness. If a request is made to renew a Certificate of Appropriateness prior to its expiration, Commission staff may renew it for one (1) additional year. If the work approved under a Certificate of Appropriateness has not been completed within the designated time period, the Certificate of Appropriateness shall expire.

(8)

Approval of Minor Works. .....The Commission may delegate to Commission staff the review and approval of minor works for the Local Historic Landmarks (LHL), and for the Historic (H) and Historic Overlay (HO) Districts after approval of Design Review Standards for the Local Historic Landmarks (LHL) and each Historic (H) and Historic Overlay (HO) District. Minor works are defined as projects which do not involve substantial alterations, additions, or removals that could impair the integrity of an historic landmark, property, and/or a district as a whole or be incongruous with the special character of an historic landmark, property, or district. Minor works require a Certificate of Appropriateness. A minor works application may be filed at any time and no public notification is required for review of a minor work application. No minor works application may be denied by Commission staff. If Commission staff cannot approve a minor works application, it shall be presented to the Commission for review and formal action.

(9)

Reapplication after Denial. .....If the Commission determines that a Certificate of Appropriateness should not be issued, a new application affecting the same property may be submitted only if substantial change is made in the application, or if conditions related to the Local Historic Landmark (LHL) or H or HO District or surrounding uses have changed. A reconsidered application shall be treated as a new application.

(10)

Demolition Permits. .....An application for a Certificate of Appropriateness authorizing the relocation or demolition of a designated historic landmark or building or structure within an H or HO District may not be denied; however, the effective date of such Certificate may be delayed for not more than three hundred sixty-five (365) calendar days from the date of approval. The maximum delay may be reduced by the Commission when it finds that delay would impose an extreme hardship on the owner or would permanently deprive the owner of all beneficial use or return from such property from such delay. During the period of delay, the Commission may negotiate with the owner and other parties in an effort to preserve the building or structure. If the Commission finds that the building or structure has no particular significance or value toward maintaining the character of the designated landmark or district, it shall waive all or part of such period and authorize earlier demolition or removal.

(11)

Applicability to County, City, Town, Village and Utility Companies. .....The County/City/Town/Village and all public utility companies shall be required to obtain a Certificate of Appropriateness prior to initiating on a Local Historic Landmark (LHL) or in a H or HO District any changes in the character of street paving, sidewalks, trees, utility installations, walls, lighting, fences, structures, and buildings on property, easements, or streets owned or franchised by the County/City/Town/Village or public utility companies.

(12)

Appeals. .....An appeal of a decision of the Commission in granting or denying any Certificate of Appropriateness shall be taken to the appropriate Board of Adjustment. Appeals shall be taken by any aggrieved party by the later of thirty (30) calendar days after the decision is effective or after a written copy thereof is delivered in accordance with section B.6-1.5(B)(10), and shall be in the nature of certiorari (only evidence presented at the Commission's meeting shall be considered at the appeal). Appeal from the decision of the Board of Adjustment shall be to the Forsyth County Superior Court.

(13)

Inspection after Issuance of Certificate. .....The Zoning Officer shall from time to time inspect the construction or alteration approved by a Certificate of Appropriateness and report to the Commission any work not in conformance with the Certificate of Appropriateness.

(E)

After the Fact—Certificate of Appropriateness.

(1)

After-the-Fact Certificate of Appropriateness Applications. .....An after-the-fact Certificate of Appropriateness application includes any major or minor work projects that have been initiated or completed prior to obtaining the required Certificate of Appropriateness.

(2)

After-the-Fact Certificate of Appropriateness Application Fee. .....To discourage activity without a Certificate of Appropriateness and to assist in offsetting the costs associated with the additional staff work that accompanies an after-the-fact application, an escalating fee system has been implemented. The escalating fee system is based upon the number of after-the-fact Certificate of Appropriateness applications sought by or on behalf of a property owner. The after-the fact Certificate of Appropriateness application fee, as established by the City Council of the City of Winston-Salem and the County Commissioners of Forsyth County, shall be due upon submission of the application.

(3)

Application Consideration. .....All after-the-fact Certificate of Appropriateness applications shall be brought before the Commission for consideration.

(4)

Approval of After-the-Fact Certificate of Appropriateness. .....Applications Unless otherwise designated by the Commission, if an after-the-fact Certificate of Appropriateness application is approved, the applicant shall have ninety (90) days to complete the approved work.

(5)

Denial of After-the-Fact Certificate of Appropriateness Applications. .....If an after-the-fact application for approval of work, completed without a Certificate of Appropriateness, receives a denial from the Commission, the subsequent Certificate of Appropriateness application, if required, shall be considered anew. A subsequent Certificate of Appropriateness application must be submitted to the Commission within thirty (30) days of the effective date of the denial of the original after-the-fact application. Commission staff shall determine if the subsequent application qualifies as a major or minor work and said application shall be reviewed accordingly.

(F)

Standards for Review .....A Certificate of Appropriateness shall be issued or denied in accordance with the following standards:

(1)

General Criteria. .....In granting a Certificate of Appropriateness, the Commission shall take into account the historic or architectural significance of the property under consideration and the exterior and interior (where applicable), form and appearance of any proposed additions or modifications to a structure. The Commission shall not consider interior arrangement in H and HO Districts.

(2)

General Restriction on Denial. .....The Commission shall not refuse to issue a Certificate of Appropriateness except for the purpose of preventing the construction, reconstruction, alteration, restoration, or moving of buildings, structures, appurtenant features, or outdoor advertising signs which would be incompatible with the Design Review Standards.

(3)

Design Review Standards Required. .....The requirement for a Certificate of Appropriateness shall not become effective until after the Commission has prepared and adopted principles and standards not inconsistent with Part 3C of Article 19 of Chapter 160A of the NCGS. Such principles and standards, hereafter referred to as Design Review Standards, shall be prepared for the Local Historic Landmarks (LHL), and for each H and/or HO District and shall address new construction, alterations, additions, moving, and demolition to properties and/or sites. These criteria shall take into account the historic, architectural, and visual elements which are unique to the designated landmarks and districts.

(4)

Design Review Standards Amendment. .....Prior to the amendment of Design Review Standards for the Local Historic Landmarks (LHL) or any H or HO District, any person may comment upon the proposal. Not less than forty-five (45) days prior to the public hearing at which the Commission proposes to act upon the amendment(s), copies of the proposed amendment(s) shall be made available to the Elected Bodies, and any other interested person upon request. Concurrently, the Commission shall cause notice of the public hearing at which the proposed amendment(s) will be considered for adoption to be published in a newspaper of general circulation in Winston-Salem.

(G)

Compliance. .....Compliance with the provisions of this section shall be enforced by the appropriate Zoning Officer. Failure to comply with this section and provisions of a Certificate of Appropriateness shall be unlawful and a violation of the Zoning Ordinance, and all remedies authorized by law for noncompliance with this Ordinance may be exercised to enforce this section.

( C-UDO-83 , § 47, 6-28-21)

6-2.10   VARIANCE

(A)

Authority

(1)

When unnecessary hardships would result from carrying out the strict letter of a zoning regulation, the Board of Adjustment shall vary any of the provisions of the zoning regulation.

(2)

Limitations. .....No change in permitted uses may be authorized by variance, nor shall it grant a variance for a site plan feature or condition adopted in conjunction with a special use zoning district and special use permit.

(B)

Process

(1)

Pre-Application Meeting. .....Applicants are required to attend a pre-application meeting pursuant to section B.6-1.1.

(2)

Application Submission and Staff Review. .....An application for a text amendment shall be submitted in compliance with the requirements of section B.6-1.3, Application Submission, Content, and Fees.

(3)

Evidentiary Hearing. .....In no case shall a quasi-judicial decision issuing a variance by the Board of Adjustment be made until an evidentiary hearing per section B.6-1.5 has been held by the Board of Adjustment.

(C)

Decision Making

(1)

Action by the Board of Adjustment.

(a)

Hardship. .....When unnecessary hardships would result from carrying out the strict letter of this Ordinance, the Board of Adjustment shall vary any of the provisions of this Ordinance upon a showing of all of the following:

(i)

Unnecessary hardship would result from the strict application of the Ordinance. It is not necessary to demonstrate that, in the absence of the variance, no reasonable use can be made of the property.

(ii)

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.

(iii)

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 is not a self-created hardship.

(iv)

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

(b)

Review of Applications. .....Any such variance shall observe the spirit and purpose of this Ordinance and shall be granted only with reference to conditions and circumstances peculiar to the property involved.

(c)

Conditions. .....Appropriate conditions may be imposed on any variance, provided that the conditions are reasonably related to the variance.

(d)

Board of Adjustment Procedure for Voting on Variance Requests.

(i)

The concurring vote of four-fifths (4/5) of the Board shall be necessary to grant a variance.

(ii)

For the purposes of this subsection, vacant positions on the Board and members who are disqualified from voting on a quasi-judicial matter shall not be considered members of the Board for calculation of the requisite majority if there are no qualified alternatives to take the place of such members.

( C-UDO-83 , § 47, 6-28-21)

6-2.11   APPEALS AND INTERPRETATIONS

(A)

Authority .....Appeals of administrative decisions and the Historic Resources Commission shall be made to the Board of Adjustment as provided in the Unified Development Ordinances.

(1)

Appeals of administrative decisions and the Historic Resources Commission shall be made to the Board of Adjustment as provided in the Unified Development Ordinances.

(2)

The Board of Adjustment shall also hear and pass all other matters upon which it is required to act under the Unified Development Ordinances.

(B)

Applicability .....The appeal request is subject to the following standards:

(1)

Only written decisions or determinations shall be appealed.

(2)

A decision includes any final and binding order, requirement, or determination.

(3)

The Zoning Officer, or a designee, shall give written notice to the landowner that is subject of the decision and to the party who sought the decision, if different from the landowner.

(4)

The written notice shall be delivered by personal delivery, electronic mail, or by first class mail. The notice shall be delivered to the last address listed for the owner of the affected property on the county tax abstract and to the address provided in the application or request for a determination if the party seeking the determination is different from the property owner.

(5)

The landowner or other party receiving the written notice shall have thirty (30) days from receipt of the written notice, decision, or determination to file an appeal.

(6)

Any other person or party with standing to appeal shall have thirty (30) days from receipt of any source of actual or constructive notice of the decision or determination to file an appeal.

(7)

In the absence of evidence to the contrary, notice given pursuant to this subsection by first-class mail is deemed received on the third (3) business day following deposit of the notice for mailing with the United States Postal Service.

(C)

Process .....The procedure to be used in processing appeals and interpretations of decisions of the Zoning Officer or a designee authorized by the Board of Adjustment.

(1)

Applicaton.

(a)

Applications for appeals of decisions, determinations or interpretations of the Zoning Officer or a designee to be considered in any month by the Board of Adjustment shall be made by the landowner or the owner's authorized agent or any other party with standing to the Village Clerk not less than thirty (30) days prior to the established meeting date of that month. Each petition shall be accompanied by:

(i)

A fee as authorized in Article VIII of this Ordinance.

(ii)

The written decision of the Zoning Officer or a designee that is the subject of the requested appeal or interpretation.

(2)

Posting. .....It is conclusively presumed that all persons with standing to appeal have constructive notice of the determination from the date a sign providing notice that a determination has been made is prominently posted on the property that is the subject of the determination, provided the sign remains on the property for at least ten (10) days. The sign shall contain the words "Zoning Decision" or "Subdivision Decision" or similar language for other determinations in letters at least six (6) inches high and shall identify the means to contact a local government staff member for information about the determination. Posting of signs is not the only form of constructive notice. Any such posting is the responsibility of the landowner, applicant, or person who sought the determination. Verification of the posting shall be provided to the staff member responsible for the determination. Absent an ordinance provision to the contrary, posting of signs shall not be required.

(3)

Transmittal.

(a)

The Zoning Officer or a designee shall transmit to the Board of Adjustment all documents and exhibits constituting the record upon which the action appealed from is taken.

(b)

The Zoning Officer or a designee shall also provide a copy of the record to the appellant and to the owner of the property that is the subject of the appeal if the appellant is not the owner.

(D)

Decision Making

(1)

Evidentiary Hearing. .....The Board of Adjustment shall follow evidentiary hearing procedures per Section B.6-1.5(B).

(2)

Board of Adjustment Procedure for Voting on Appeals/Interpretations.

(a)

The concurring vote of a simple majority by the Board of Adjustment shall be necessary to overturn a decision of the Zoning Officer or a designee.

(b)

For the purposes of this subsection, vacant positions on the Board of Adjustment and members who are disqualified from voting on a quasi-judicial matter shall not be considered members of the Board for calculation of the requisite majority if there are no qualified alternatives to take the place of such members.

(E)

Stay of Proceedings

(1)

An appeal of a notice of violation or other enforcement order stays enforcement of the action appealed from and accrual of any fines assessed during the pendency of the appeal to the Board of Adjustment and any subsequent appeal in accordance with G.S. 160D-1402 or during the pendency of any civil proceeding authorized by law or appeals therefrom, unless the Zoning Officer or official who made the decision certifies to the Board of Adjustment after notice of appeal has been filed that, because of the facts stated in an affidavit, a stay would cause imminent peril to life or property or, because the violation is transitory in nature, a stay would seriously interfere with enforcement of the development regulation. In that case, enforcement proceedings are not stayed except by a restraining order, which may be granted by a court.

(2)

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 of Adjustment shall meet to hear the appeal within fifteen (15) days after such request is filed.

(3)

Notwithstanding the foregoing, appeals of decisions granting a permit or otherwise affirming that a proposed use of property is consistent with the Ordinance does not stay the further review of an application for permits or permissions to use the property; in these situations, the appellant or local government may request and the Board of Adjustment may grant a stay of a final decision of permit applications or building permits affected by the issue being appealed. Otherwise, the Board of Adjustment shall hear and decide the appeal within a reasonable time.

( C-UDO-83 , § 47, 6-28-21; C-UDO-87 , § 8, 7-25-22)