A.

Planning director. The planning director (or designee) is hereby authorized to enforce and administer the provisions of this ordinance.

(Ord. No. 22-21, § 1, 4-5-21)

A.

Permit required. No building, sign or other structure shall be erected, moved, extended or enlarged, or structurally altered, nor shall any excavation or filling of any lot for the construction of any building or development, or the addition or removal of parking spaces be commenced until the planning director has issued a zoning permit for such work. Every person obtaining a zoning permit hereunder shall pay a fee as provided in a schedule of zoning permit fees adopted by the governing body. Limited renovations for single-family homes and duplexes no zoning permit is required for work that is done in accordance with the building code including replacement of heating/cooling equipment, windows, doors, exterior siding and decking, stair treads, railings, roofs or pickets for porches.

[B.]

Duration of development approval. Any zoning permit issued shall expire and be cancelled unless the work authorized by it shall have substantially commenced within one (1) year of its date of issue, or if the work authorized by it is suspended or abandoned for a period of one (1) year.

C.

Permit choice. If an application made in accordance with local regulation is submitted for a development approval required pursuant to this chapter and a development regulation changes between the time the application was submitted and a decision is made, the applicant may choose which version of the development regulation will apply to the 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. This section applies to all development approvals issued by the state and by local governments.

D.

Vested rights. Process to claim vested right. A person claiming a statutory or common law vested right may submit information to substantiate that claim to the zoning administrator or other officer designated by a development regulation, who shall make an initial determination as to the existence of the vested right. The decision of the zoning administrator or officer may be appealed under G.S. 160D-405. On appeal, the existence of a vested right shall be reviewed de novo. In lieu of seeking such a determination, a person claiming a vested right may bring an original civil action as provided by G.S. 160D-405(c).

E.

Types and duration of statutory vested rights. Except as provided by this section and subject to subsection (B) of this section, amendments in local development regulations shall not be applicable or enforceable with regard to development that has been permitted or approved pursuant to this chapter so long as one (1) of the types of approvals listed in this subsection remains valid and unexpired. Each type of vested right listed in this subsection is defined by and is subject to the limitations provided in this section. Vested rights established under this section are not mutually exclusive. The establishment of a vested right under this section does not preclude the establishment of one or more other vested rights or vesting by common law principles. Vested rights established by local government approvals are as follows:

(1)

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

(2)

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

(3)

Two (2) to five (5) years—Site-specific vesting plans.

a.

Duration. A vested right for a site-specific vesting plan shall remain vested for a period of two (2) years. This vesting shall not be extended by any amendments or modifications to a site-specific vesting plan unless expressly provided by the local government. A local government may provide that rights regarding a site-specific vesting plan shall be vested for a period exceeding two (2) years, but not exceeding five (5) years, if warranted by the size and phasing of development, the level of investment, the need for the development, economic cycles, and market conditions, or other considerations. This determination shall be in the discretion of the local government and shall be made following the process specified for the particular form of a site-specific vesting plan involved in accordance with sub-subdivision c. of this subdivision.

b.

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

c.

Requirements for site-specific vesting plans. For the purposes of this section, a "site-specific vesting plan" means a plan submitted to the planning department describing with reasonable certainty the type and intensity of use for a specific parcel or parcels of property. The plan may be in the form of, but not be limited to, any of the following plans or approvals: an approved development plan, a subdivision plat, a site plan, a preliminary or general development plan, a conditional zoning, or any other development approval as may be used by a local government. The plan shall include the approximate boundaries of the site; significant topographical and other natural features affecting development of the site; the approximate location on the site of the proposed buildings, structures, and other improvements; the approximate dimensions, including height, of the proposed buildings and other structures; and the approximate location of all existing and proposed infrastructure on the site, including water, sewer, roads, and pedestrian walkways. The vesting point shall be at least one month (30 days) earlier than the issuance of a building permit. A variance shall not constitute a site-specific vesting plan and approval of a site-specific vesting plan with the condition that a variance be obtained shall not confer a vested right unless and until the necessary variance is obtained. If a sketch plan or other document fails to describe with reasonable certainty the type and intensity of use for a specified parcel or parcels of property, it may not constitute a site-specific vesting plan.

d.

Process for approval and amendment of site-specific vesting plans. A site specific vesting plan as referenced in subsection c, that has expired may be resubmitted following the process provided for the type of development proposal. A site-specific vesting plan meeting the threshold for development found in section 60.5.1 of the zoning ordinance shall be amended by providing the notice and hearing as required for that underlying approval. If the duration of the underlying approval is less than two (2) years, that shall not affect the duration of the site-specific vesting plan established under this subdivision. If the site-specific vesting plan is not based on such an approval, a legislative hearing with notice as required by G.S. 160D-602 shall be held. The City of Conover may approve a site-specific vesting plan upon such terms and conditions as may reasonably be necessary to protect the public health, safety, and welfare. Such conditional approval shall result in a vested right, although failure to abide by its terms and conditions will result in a forfeiture of vested rights. A site-specific vesting plan shall be deemed approved upon the effective date of the decision approving the plan or such other date as determined by the city council upon approval. An approved site-specific vesting plan and its conditions may be amended with the approval of the owner and the city council as follows: any substantial modification must be reviewed and approved in the same manner as the original approval; minor modifications may be approved by staff, following provisions provided in Section 50.2(B)(4).

(4)

Seven (7) years—Multiphase developments. A multiphase development shall be vested for the entire development with the zoning regulations, subdivision regulations, and unified development ordinances in place at the time a site plan approval is granted for the initial phase of the multiphase development. This right shall remain vested for a period of seven (7) years from the time a site plan approval is granted for the initial phase of the multiphase development. For purposes of this subsection, "multiphase development" means a development containing one hundred (100) acres or more that (i) is submitted for site plan approval for construction to occur in more than one phase and (ii) is subject to a master development plan with committed elements, including a requirement to offer land for public use as a condition of its master development plan approval.

(5)

Indefinite development agreements. A vested right of reasonable duration may be specified in a development agreement approved by city council.

F.

Continuing review. Following approval or conditional approval of a statutory vested right, Conover may make subsequent reviews and require subsequent approvals to ensure compliance with the terms and conditions of the original approval, provided that such reviews and approvals are not inconsistent with the original approval. Conover may revoke the original approval for failure to comply with applicable terms and conditions of the original approval or the applicable local development regulations.

G.

Exceptions. The provisions of this section are subject to the following:

(1)

A vested right, once established as provided for by subdivision (3) or (4) of subsection (E) of this section, precludes any zoning action by a local government that would change, alter, impair, prevent, diminish, or otherwise delay the development or use of the property as set forth in an approved vested right, except when any of the following conditions are present:

a.

The written consent of the affected landowner.

b.

Findings made, after notice and an evidentiary hearing, that natural or man-made hazards on or in the immediate vicinity of the property, if uncorrected, would pose a serious threat to the public health, safety, and welfare if the project were to proceed as contemplated in the approved vested right.

c.

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

d.

Findings made, after notice and an evidentiary hearing, that the landowner or the landowner's representative intentionally supplied inaccurate information or made material misrepresentations that made a difference in the approval by the local government of the vested right.

e.

The enactment or promulgation of a State or federal law or regulation that precludes development as contemplated in the approved vested right, in which case the local government may modify the affected provisions, upon a finding that the change in State or federal law has a fundamental effect on the plan, after notice and an evidentiary hearing.

(2)

The establishment of a vested right under subdivision (3) or (4) of subsection (E) of this section shall not preclude the application of overlay zoning or other development regulation that imposes additional requirements but does not affect the allowable type or intensity of use, or ordinances or regulations that are general in nature and are applicable to all property subject to development regulation by a local government, including, but not limited to, building, fire, plumbing, electrical, and mechanical codes. Otherwise applicable new regulations shall become effective with respect to property that is subject to a vested right established under this section upon the expiration or termination of the vested rights period provided for in this section.

(3)

Notwithstanding any provision of this section, the establishment of a vested right under this section shall not preclude, change, or impair the authority of a local government to adopt and enforce development regulation provisions governing nonconforming situations or uses.

H.

Miscellaneous provisions. A vested right obtained under this section is not a personal right but shall attach to and run with the applicable property. After approval of a vested right under this section, all successors to the original landowner shall be entitled to exercise such rights. Nothing in this section shall preclude judicial determination, based on common law principles or other statutory provisions, that a vested right exists in a particular case or that a compensable taking has occurred. Except as expressly provided in this section, nothing in this section shall be construed to alter the existing common law. (2019-111, s. 2.4.)

(Ord. No. 20-17, § 1, 3-6-17; Ord. No. 22-21, § 1, 4-5-21)

A.

Initiation. Work covered under zoning regulations, is initiated by completing and submitting a zoning application along with required fees (consult the schedule of fees) to the planning department in person or by electronic means. Supplemental information required with the zoning application, is referenced on the development checklist provided by the planning department.

B.

Determinations and notice of determinations. A zoning determination is initiated by the owner of the property that is the subject of the determination request or a party with an interest in the property by submitting the request by letter or electronic communication along with required fees (consult the schedule of fees) to the planning department. Written notice will be provided to the owner of the property that is the subject of the determination and to the party who sought the determination, if different from the owner. 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 owner. It shall be 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 although not required by ordinance, shall be 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.

(Ord. No. 8-92, § 1, 5-4-92; Ord. No. 22-21, § 1, 4-5-21)

A certificate of occupancy issued by the planning director is required in advance of:

Occupancy or use of a building hereafter erected, altered, or moved.

A change of use of any building or land.

A certificate of occupancy, either for the whole or a part of a building, shall be applied for coincident with the application for a zoning permit and shall be issued within ten (10) days after the erection or structural alteration of such building, or part, shall have been completed in conformity with the provisions of this ordinance. A certificate of occupancy shall not be issued unless the proposed use of a building or land conforms to the applicable provisions of this ordinance.

(Ord. No. 22-21, § 1, 4-5-21)

1.

Level II Development:

A.

Scale: Level II Development, means new development or expansions of existing development of a scale meeting or exceeding the following thresholds:

1.

Multifamily residential: Sixteen (16) or more units or, for congregant living, 16 or more residents

2.

Mobile home park: Mobile home park with two or more units

3.

Institutional: Twenty thousand (20,000) square feet or more of building area

4.

Commercial and mixed use: Twenty thousand (20,000) square feet or more of building area, (For auto/boat/recreation vehicle uses or for similar uses that rely on outdoor space for the primary activity, the square feet calculation includes buildings and outdoor sales, storage or activity areas)

5.

Industrial: One hundred thousand (100,000) or more square feet of building area

6.

Expansions of existing buildings, when the existing building along with the new addition meets or exceeds the threshold (additions of no more than two (2) multifamily residential units or ten (10) percent of the threshold amount, exempted)

B.

Review. Level II developments are reviewed upon the completion of an application by a property owner or designated agent along with the submittal of a conceptual plan(s) as outlined in Article V, Section 50.2.C.

C.

Procedure. The procedure to review a Level II application shall follow the same procedures for conditional zoning provided in Article V, Section 50.2

D.

Standards for Level II:

1.

Multifamily residential:

a.

Setbacks. The minimum setback from local street and minimum front, side and rear yards shall be twenty-five (25) feet and twenty (20) feet from the interior streets and parking areas. For Level II multifamily in MX District the setback will be between zero and twenty-five (25) feet.

b.

General Requirements.

i.

Parking and Loading and Access Standards. Parking shall be provided for all uses as required in Article II, Division 3. In the MX and B-3 district parking shall not be placed between the public street and the principal building(s).

ii.

Signs. Signs shall conform to the requirements of Article II Division 5. In addition a multifamily development may have one single monument sign at the access point (one on each street frontage if applicable).

c.

Building Standards.

i.

No building shall exceed thirty-six (36) feet in height unless minimum side and rear yards at exterior property lines shall be increased over the required minimum by five (5) feet for every five (5) feet, or fraction thereof, of height over thirty-six (36) feet.

ii.

Building standards shall comply with the requirements established in Article II Division 2.

d.

Other Site Requirements.

i.

The minimum unobstructed open space shall be twenty (20) percent of the total site area. For parcels in the MX and B-3 districts, the open space standard is ten (10) percent. Open space shall be defined as an open area designed and developed for use by the occupants of the development including recreation, play areas, courts, gardens and rooftop terraces.

ii.

Sidewalks are required along street frontages and internally in the development linking residential structures with major site features and access road(s).

iii.

The site shall be buffered in accordance with Division 6—Buffer, Section 26.2.2.

iv.

All street yard(s) shall be planted using the standards in Art. II, Div. 3, Sections 23.5, 23.5.4 and 23.5.5.

2.

Mobile home park development:

a.

General Consideration. Mobile homes because of their use, transportability, manufacture and manner of construction, location and susceptibility for use in high density concentration both as units and persons tend to place inhabitants of mobile homes in an unfavorable position to obtain services necessary for a safe and healthful living environment. It is the purpose of this subsection to provide protection to the public against unwise and hazardous mobile home development and provide a reasonably safe and sound environment for mobile home inhabitants and to:

i.

Promote public health, safety and orderly residential development;

ii.

Prevent overcrowding of the land;

iii.

Provide adequate open space to ensure privacy, natural light and ventilation for each mobile home;

iv.

Provide sufficient open space for outdoor uses essential to the mobile home;

v.

Ensure the furnishing of adequate water supply and sewage disposal systems; and

vi.

Provide an acceptable environment for small communities of mobile homes.

b.

Mobile home parks are regulated with respect to their location, installation, provisions for services, privacy and additional specific regulations contained herein.

c.

Tract and lot area requirement.

i.

Any site, tract of land, or lot to be developed as a mobile home park shall be not less than two (2) acres in area, excluding street rights-of-way, but including utility easements, and it shall have not less than seven (7) mobile home lots completed at first occupancy.

ii.

The minimum area of a mobile home lot shall be five thousand (5,000) square feet and shall not have a width of less than forty (40) feet or a length of less than eighty (80) feet at the narrowest point of the width or length.

d.

Setbacks.

i.

No mobile home or other structure shall be located closer than thirty (30) feet to an exterior boundary of the park or a bounding street right-of-way.

ii.

No mobile home or other structures within a mobile home park shall be closer to each other than twenty (20) feet, except that storage or other auxiliary structures for the exclusive use of the mobile home may be closer to that mobile home than twenty (20) feet.

e.

Parking, loading and access standards.

i.

A mobile home park shall have direct access to a public street.

ii.

Parking shall be provided by all uses as required in Article II, Division 3.

f.

Signs. Signs shall conform to the requirements of Article II Division 5. In addition a multifamily development may have one single freestanding sign for one access point on each different street frontage.

g.

Building standards.

i.

Mobile homes in mobile home parks will conform with standards for construction developed by Federal Housing and Urban Development standards and will be accompanied by attached seal/ registration.

ii.

All mobile homes shall be properly tied down in accordance with the provisions of the North Carolina Uniform Residential Building Code.

h.

Other site requirements.

i.

The mobile home park shall be divided into lots, the limits of which shall be clearly marked on the ground by permanent flush stakes or markers. No mobile home lot shall be occupied or partially occupied by any structure, park driveway, or common area or facility, other than:

•

the mobile home;

•

parking spaces for the mobile home resident;

•

utility storage structure.

ii.

The proposed mobile home park with six or more units, shall have an office either as a separate structure or in connection with the dwelling quarters of the owner or operator.

iii.

Every mobile home park shall be located on ground that is above any probable flooding from any natural watercourse and shall be graded so as to prevent the accumulation or ponding of water on the premises.

iv.

Paved sidewalks five (5) feet wide shall be provided on one side of all streets. Each mobile home space shall have a concrete patio containing a minimum of one hundred (100) square feet which shall be joined to a sidewalk by a paved walk or driveway.

v.

At least twenty (20) percent of the gross land area of the mobile home park shall be designed and developed as open space. Open space shall be defined as an open area designed and developed for use by the occupants of the development including recreation, play areas and courts, or gardens.

vi.

A densely planted buffer strip consisting of trees, shrubs, other plantings, or opaque fence (not to exceed eight (8) feet high), with a mature size of at least ten (10) feet in height within a planting bed with a minimum width of ten (10) feet, shall be provided along the rear and side lines of the mobile home park. No such buffer shall, however, be upon or extend into a street right-of-way.

vii.

Utility storage structures shall be provided for each mobile home and shall not be less than one hundred (100) square feet in size.

viii.

Submittal Requirements. In addition to submittal requirements required in Section 50.2.C., plans for mobile home parks shall also include:

•

Lot boundaries of all existing and proposed locations for mobile homes and other structures within the mobile home park property along with connections to plumbing and electrical utilities.

•

Location of parking spaces and required patios.

3.

Institutional and commercial development (including mixed-use development).

a.

Setbacks: Setbacks shall not exceed twenty-five (25) feet from existing or proposed street(s) or rights-of-way for mixed-use or pedestrian oriented developments. For other development types there is not a maximum setback.

b.

Buffers: Buffers shall be required following provisions found in Article II, Division 6. and shall be provided around the perimeter of the development and additional planting bed width may be required to protect adjacent property in portions of the perimeter.

c.

General requirements:

i.

Parking, Loading and Access Standards.

a)

Off-street parking shall be provided for any use or combination of uses as required in Article II, Division 3.

b)

No parking is permitted in the front yard of any building in the MX and B-3 District.

ii.

Access. Along thoroughfares, turnout lanes and merging lanes may be required on the parcel, with length and width as appropriate for the flow of traffic, and traffic separation devices may be required at such entrances and exits and along such merging lanes.

iii.

Sidewalks. Sidewalks will be required adjacent to any right-of-way areas. Sidewalks should also connect internally between buildings and between parking areas and adjacent principal buildings.

iv.

Bicycle lanes. The developer will consider the ability to plan and provide bicycle lanes as a part of the site master plan.

v.

Signs. Signs shall conform to the requirements of Article II, Division 5.

d.

Building standards.

i.

Structures shall conform to the building materials requirements of Article II, Division 2.

ii.

No building shall exceed forty-eight (48) feet in height; except for institutional uses where the height may not exceed sixty-eight (68) feet.

iii.

Within the underlying zoning districts of B-3 and MX, construction of a principal building(s) is required to be a minimum of two full stories except in the case of brewery, manufacturing or similar facilities which may be single story. Development building forms favors retail on the first floor, with office or residential on the second floor. Multifamily and townhome development are not required to include commercial uses in ground-floor spaces.

4.

Industrial:

1.

Setbacks. Setbacks shall be a minimum of twenty-five (25) feet.

2.

General requirements.

a.

Parking, Loading and Access Standards.

i.

Off-street loading. Off-street loading space shall be provided by all uses as required by Article II, Division 4.

ii.

Off-street parking. Off-street parking shall be provided for any use and/or combination of uses as required in Article II, Division 3.

b.

Access. Along access roads to the proposed facility, turning lanes may be required to be constructed on the lot, with suitable length and width as appropriate for the flow of traffic and the volumes expected.

c.

Signs. Signs shall conform to the requirements of Article II, Division 5.

d.

Building Standards: Structures shall conform to the building materials requirements of Article II, Division 2.

E.

Fees. Fees for reviewing Level II development plans will be according to the Fee Schedule published by the City of Conover.

2.

Level I Development.

A.

Level I development means new development or expansions of existing development that does not meet the threshold for Level II development.

B.

Review. Level I applications are submitted with required materials and plans as outlined in the development checklists provided by the planning department. Depending on the nature of the proposal, review may include consideration of a sketch plan to solicit initial staff feedback. Formal plan review is conducted with complete plans submitted by the developer. Staff will provide a comment letter outlining any revisions that may be required for the development.

1.

Standards for Level I multi-family development:

a.

Duplexes are not considered multi-family structures and shall not be approved for multi-family development in those zones where multi-family development is allowed by right.

b.

Buildings shall comply with Section 22.16.2.—Building design standards for commercial, office, institutional and multi-family uses.

c.

A building may be rotated 90 degrees, such that entrances to dwelling units do not face the street, provided that the rear of the building is setback at least 20' from the side property lines.

d.

All buildings designed for human habitation shall be separated from any other such building by at least ten (10) feet. Buildings of more than two stories shall be separated by fifteen (15) feet minimum.

e.

All street yard(s) shall be planted using the standards in Article II, Division 3, Sections 23.5, 23.5.4 and 23.5.5.

C.

Procedure. Plans are submitted to the Planning Department for distribution and review by city staff. Plans may be approved, approved with needed revisions or denied due to failure to meet technical or safety standards. Subsequently, plans may be revised to meet required standards.

D.

Zoning Permit Issued. After approval of final plans for Level I development, a zoning permit will be issued by the Planning Department. Provisions for the zoning permit are outlined in Section 60.3

E.

Fees. Fees for reviewing Level I development plans will be according to the Fee Schedule published by the City of Conover.

(Ord. No. 39-19, § 1, 8-5-19; Ord. No. 14-23, § 1, 6-5-23)

Editor's note— Ord. No. 39-19, § 1, adopted August 5, 2019, repealed the former section 60.5, and enacted a new section 60.5 as set out herein. The former section 60.5 pertained to conditional zoning districts and derived from Ord. No. 21-07, § 1, June 4, 2007.

Whenever the regulations contained in this ordinance require a greater width or size of yards, courts, or other spaces, require a lower height of building or fewer number of stories, require a greater percentage of lot to be left unoccupied or impose other higher standards than are required in any other statute, ordinance or regulations, the provisions of this ordinance shall govern. Whenever the provisions of a statute, code, ordinance or regulation require a lower height of building or fewer number of stories, require a greater percentage of lot to be left unoccupied or impose other higher standards than are required by this ordinance, the provisions of such statute, code, ordinance or regulation shall govern.

In interpreting and applying the provisions of this ordinance, they shall be held to be the minimum requirements for the promotion of the public safety, health, convenience, prosperity and general welfare. It is not intended by this ordinance to interfere with, abrogate or annul any easements, covenants or other agreements between parties; provided, that where this ordinance imposes a greater restriction upon the use of buildings or premises or upon the height of buildings or requires larger open spaces than are imposed or required by other ordinances, rules, regulations or by easements, covenants or agreements, the provisions of this ordinance shall govern.

If any structure is erected, constructed, reconstructed, altered, repaired, converted or maintained or any structure or land is used in violation of this ordinance, the building inspector shall inform the city attorney. In addition to other remedies, the city attorney may institute any appropriate action or proceeding to prevent such unlawful erection, construction, reconstruction, alteration, repair, conversion, maintenance or use, to restrain, correct or abate such violation, to prevent the occupancy of such structure or land or to prevent any illegal act, conduct, business or use in or about such premises.

1.

Notices of violation. When staff determines work or activity has been undertaken in violation of a development regulation adopted pursuant to this chapter or other local development regulation or any state law delegated to the local government for enforcement purposes in lieu of the state or in violation of the terms of a development approval, a written notice of violation may be issued. The notice of violation shall be delivered to the holder of the development approval and to the landowner of the property involved, if the landowner is not the holder of the development approval, by personal delivery, electronic delivery, or first-class mail and may be provided by similar means to the occupant of the property or the person undertaking the work or activity. The notice of violation may be posted on the property. The person providing the notice of violation shall certify to the local government that the notice was provided, and the certificate shall be deemed conclusive in the absence of fraud. Except as provided by G.S. 160D-1123 or G.S. 160D-1206 or otherwise provided by law, a notice of violation may be appealed to the board of adjustment pursuant to G.S. 160D-405.

2.

Other provisions.

(a)

Any violation of the articles of this Appendix A shall subject the offender to a civil penalty in the amount of fifty dollars ($50.00). Violators shall be issued a written citation by registered mail which must be paid within seventy-two (72) hours of receipt.

(b)

Each day's continuing violation shall be considered a separate and distinct offense.

(c)

Notwithstanding subsection (a) above, provisions of this Appendix A may be enforced through equitable remedies issued by a court of competent jurisdiction.

(d)

In addition to or in lieu of remedies authorized in subsections (a) and (c), violations of any articles of this Appendix A may be prosecuted as a misdemeanor or otherwise in accordance with G.S. 160A-175.

(e)

Disapproval of subsequent permits and development approvals. As long as a violation of the code of ordinances continues and remains uncorrected, the planning director or other authorized agent may withhold any request for permit or development approval or authorization provided by the zoning or subdivision ordinance or any zoning permit for the land and/or the use on which the violation occurs.

(Ord. No. 24-86, § 1, 12-9-86; Ord. No. 1-14, § 1, 1-6-14; Ord. No. 22-21, § 1, 4-5-21)

This ordinance shall take effect and be in force from and after its adoption.

Duly adopted by the Board of Commissioners The City of Conover, North Carolina, this 5th day of June, 1975.

1.

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

a.

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

b.

The hardship results from the conditions that are particular 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.

c.

The hardship did not result from actions taken by the applicant or the property owner. The act of purchasing property with knowledge that circumstances exist that may justify the granting of a variance shall not be regarded as a self-created hardship.

d.

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.

No change in permitted uses may be authorized by variance. Appropriate conditions may be imposed on any variance, provided that the conditions are reasonably related to the variance. Any other development regulation that regulates land use or development may provide variances from the provisions of those ordinances consistent with the provisions of this subsection.

2.

Appeals of administrative decisions.

a.

Except as provided in subsection (c) of this section, appeals of decisions made by the staff under this chapter shall be made to the board of adjustment. The board of adjustment shall review appeals of zoning, subdivision code, stormwater control and provision of the housing code.

b.

Appeal filed. An appeal is filed with the planning director by submitting a notice of appeal along with the relevant fee (consult the schedule of fees).

c.

Standing. Any person who has standing under G.S. 160D-142(c) or the local government may appeal an administration decision to the board. An appeal is taken by filing a notice of appeal with the city clerk along with the required fees (consult the schedule of fees). The notice of appeal shall state the grounds for the appeal.

d.

Judicial challenge. A person with standing may bring a separate and original civil action to challenge the constitutionality of an ordinance or development regulation, or whether the ordinance or development regulation is ultra vires, preempted, or otherwise in excess of statutory authority, without filing an appeal under subsection (a) of this section.

e.

Time to appeal. The owner or other party shall have thirty (30) days from receipt of the written notice of the determination within which to file an appeal. Any other person with standing to appeal shall have thirty (30) days from any source of actual or constructive notice of the determination within which to file an appeal. In the absence of evidence to the contrary, notice given pursuant to G.S. 160D-4-3(b) by first-class mail shall be deemed received on the third business following deposit of the notice for mailing with the United States Postal Service.

f.

Record of decision. The official who made the decision shall transmit to the board all documents and exhibits constitute the record upon which the decision appealed from is taken. The official 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.

g.

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

3.

Quasi-judicial procedure.

a.

Process required. Boards reviewing appeals shall follow quasi-judicial procedures in determining appeals of administrative decisions, variances or other quasi-judicial decision.

b.

Notice of hearing. Notice of evidentiary hearings conducted pursuant to this chapter shall be mailed to the person or entity whose appeal, application or request is the subject of the hearing; to the owner of the property that is the subject of the hearing if the owner did not initiate the hearing; to the owners of all parcels of land abutting the parcel of land that is the subject of the hearing; and to any other persons entitled to receive notice. In the absence of evidence to the contrary, the local government may rely on the county tax listing to determine owners of property entitled to mailed notice. The notice must 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 the same time period, the local government shall also prominently post a notice of the hearing on the site that is the subject of the hearing or in an adjacent street or highway right-of-way. The board may continue an evidentiary hearing that has been convened without further advertisement. If any evidentiary hearing is set for a given date and a quorum of the board is not them present the hearing shall be continued until the next regular board meeting without further advertisement.

c.

Administrative materials. The administrator or staff to the board shall transmit to the board all applications, reports, and written material relevant to the matter being considered. The administrative materials may be distributed to the members of the board prior to the hearing if at the same time they are distributed to the board, a copy is also provided to the appellant or the applicant and to the landowner if that person is not the appellant or the applicant. The administrative materials shall become part of the hearing record. 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.

d.

Presentation of evidence. The appellant, the local government, and any person who would have standing to appeal the decision under G.S. 160D-14-2(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 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 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-14-2. Objections based on jurisdictional issues may be raised for the first time on judicial review.

e.

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 board shall continue the hearing.

f.

Oaths. The chair of the board or any member action 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 proceeding before the board determining quasi-judicial matter, willfully swears falsely is guilty of a Class 1 misdemeanor.

g.

Subpoenas. The 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 local government, and any person with standing may make a written request to the chair explaining why it is necessary to certain witnesses or evidence to be compelled. The chair shall issue requested subpoenas he or she determines 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 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.

h.

Appeals in nature of certiorari. When hearing an appeal pursuant to G.S. 160D-9-47 or any 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).

i.

Voting. The concurring vote of four-fifths of the board shall be necessary to grant a variance. A majority of the members shall be required to decide any other quasi-judicial 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 G.S. 160D-109(d) shall not be considered members of the board for the calculation of the requisite majority if there are not qualified alternates available to take the place of such members.

j.

Decisions. 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 quasi-judicial decision shall be reduced to writing, reflect the board's determination of contested facts and their application to the applicable standards, and be approved by the 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 board. The decision of the board shall be delivered within a reasonable time by personal delivery, electronic mail, or first-class mail to the applicant, landowner, and any person who has submitted a written request for a copy prior to the date the decision becomes effective. The clerk to the board shall certify to the local government that proper notice has been made, and the certificate shall be deemed conclusive in the absence of fraud.

k.

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 within the times specified in G.S. 160D-1405(d).

(Ord. No. 29-88, § 1, 8-1-88, Ord. No. 21-07, § 1, 6-04-07; Ord. No. 22-21, § 1, 4-5-21)

a.

Governing board. A governing board member shall not vote on any legislative decision regarding a development regulation adopted pursuant to this chapter where the outcome of the matter being considered is reasonably likely to have a direct, substantial, and readily identifiable financial impact on the member. A governing 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.

b.

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

c.

Administrative staff. No staff member shall make a final decision on an administrative decision required by this chapter if the outcome of that decision would have a direct, substantial, and readily identifiable financial impact on the staff member or if the applicant or other person subject to that decision is a person with whom the staff member has a close familial, business, or other associational relationship. If a staff member has a conflict of interest under this section, the decision shall be assigned to the supervisor of the staff person or such other staff person as may be designated by the development regulation or other ordinance. No staff member shall be financially interested or employed by a business that is financially interested in a development subject to regulation under this chapter unless the staff member is the owner of the land or building involved. No staff member or other individual or an employee of a company contracting with a local government to provide staff support shall engage in any work that is inconsistent with his or her duties or with the interest of the local government, as determined by the local government.

d.

Quasi-Judicial decisions. A member of any board exercising quasi-judicial functions pursuant to this chapter shall not participate in or vote on any quasi-judicial matter in a manner that would violate affected persons' constitutional rights to an impartial decision maker. Impermissible violations of due process include, but are not limited to, a member having a fixed opinion prior to hearing the matter that is not susceptible to change, undisclosed ex parte communications, a close familial, business, or other associational relationship with an affected person, or a financial interest in the outcome of the matter.

e.

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.

f.

Familial relationship. For purposes of this section, a "close familial relationship" means a spouse, parent, child, brother, sister, grandparent, or grandchild. The term includes the step, half, and in-law relationships. (2019-111, s. 2.4.)

(Ord. No. 22-21, § 1, 4-5-21)

Preamble to Section 60.13: In adopting Article 10 of Chapter 160D, "Development Agreements," the general assembly found among other things that development projects often occur in multiple phases over several years, requiring long-term commitment of both public and private resources. Such developments often create community impacts and opportunities that are difficult to accommodate within traditional development processes. Because of their scale and duration, such projects often require coordination of public capital facilities planning, financing, and construction schedules and phasing of private development. Such projects may involve substantial commitments of private capital, which developers are usually unwilling to risk without sufficient assurances that development standards will remain stable through the extended period of the development. Such developments often permit communities and developers to experiment with different or non-traditional types of development concepts and standards, while still managing impacts on the surrounding areas. To better structure and manage development approvals for such developments and ensure their proper integration into local capital facilities programs, local governments need flexibility to negotiate such developments.

60.13.1.  Before entering into a development agreement, the city shall conduct a public hearing on the proposed agreement. The notice provisions of G.S. 160D-602 applicable to zoning map amendments shall be followed for this hearing. The notice for the hearing must specify the location of the property subject to the development agreement, the development uses proposed on the property, and must specify a place where a copy of the proposed development agreement may be obtained.

60.13.2. The city may consider a development agreement concurrently with a zoning map or text amendment affecting the property subject to the development agreement and may consider a development agreement in conjunction with a conditional zoning that incorporates the development agreement. A development agreement may be concurrently considered with and incorporate by reference a sketch plan or preliminary plat required under a subdivision regulation or a site plan or other development approval required under a zoning regulation.

60.13.3. The development agreement shall be in such form as determined by the city attorney but shall provide for the following [note: 60.13.3.1 thru 60.13.3.7 are mandatory per 160D-1006(a)]:

60.13.3.1. A description of the property subject to the agreement and the names of its legal and equitable property owners.

60.13.3.2. The duration of the agreement. However, the parties are not precluded from entering into subsequent development agreements that may extend the original duration period.

60.13.3.3. The development uses permitted on the property, including population densities, and building types, intensities, placement on the site, and design.

60.13.3.4. A description of public facilities that will serve the development, including who provides the facilities, the date any new public facilities, if needed, will be constructed, and a schedule to assure public facilities are available concurrent with the impacts of the development. In the event that the development agreement provides that the local government shall provide certain public facilities, the development agreement shall provide that the delivery date of such public facilities will be tied to successful performance by the developer in implementing the proposed development, such as meeting defined completion percentages or other performance standards.

60.13.3.5. A description, where appropriate, of any reservation or dedication of land for public purposes and any provisions agreed to by the developer that exceed existing laws related to protection of environmentally sensitive property.

60.13.3.6. A description, where appropriate, of any conditions, terms, restrictions, or other requirements for the protection of public health, safety, or welfare.

60.13.3.7. A description, where appropriate, of any provisions for the preservation and restoration of historic structures.

60.13.4. Other provisions as appropriate depending on the type of development:

60.13.4.1. A development agreement may also provide that the entire development or any phase of it be commenced or completed within a specified period of time. If required by ordinance or in the agreement, the development agreement shall provide a development schedule, including commencement dates and interim completion dates at no greater than five-year intervals; provided, however, the failure to meet a commencement or completion date does not, in and of itself, constitute a material breach of the development agreement pursuant to G.S. 160D-1008 but must be judged based upon the totality of the circumstances. The developer may request a modification in the dates as set forth in the agreement.

60.13.4.2. The development agreement also may cover any other matter, including defined performance standards, not inconsistent with Chapter 160D. The development agreement may include mutually acceptable terms regarding provision of public facilities and other amenities and the allocation of financial responsibility for their provision, provided any impact mitigation measures offered by the developer beyond those that could be required by the local government shall be expressly enumerated within the agreement, and provided the agreement may not include a tax or impact fee not otherwise authorized by law.

60.13.4.3. Construction of the development may be done in phases pursuant to subsection 60.13.4.8.

60.13.4.4. In the case of subdivision developer may complete all improvements and then obtain a final plat approval and, thereafter, building permits, or the developer may post security to ensure completion and obtain building permits upon final development (which may include a final plat) approval.

60.13.4.5. No property may be occupied until improvements are approved by the city with respect to any such property if the development is constructed in phases.

60.13.4.6. In the event of a breach of the provisions of the development agreement, the city shall not be required to issue any certificates of occupancy, or to approve or accept the receipt and/or delivery of any utility service to any part of the property.

60.13.4.7. Drawings and specifications for the improvements and the estimated costs thereof shall be prepared by a licensed professional authorized under North Carolina law to prepare the drawings and specifications.

60.13.4.8. Phasing of the development and, in which case, a final development plat and final plans and specifications for improvements (along with the prorated costs thereof as determined by the city) shall be provided for any phase. Any phase shall operate as a complete unit with utilities, safety, access and other necessary components in place to serve the development.

60.13.4.9. Inspection by the city during construction and testing before acceptance and the manner of acceptance by the city; that such inspection and/or testing by the city shall in no way imply that the project will not be inspected, supervised, and tested by developer's engineer (or other licensed professional); and that neither the inspecting and testing agents of the city, such as the city engineer, or the city shall have any liability or responsibility with respect to the proper construction of the improvements, the function of such inspection and testing being solely for the purpose of determining whether the improvements will qualify for connection to the city's utility and street system. The developer's engineer shall provide a certification that the improvements were built to city standards.

60.13.4.10. Reserved.

60.13.4.11. All construction agreements for public improvements shall provide for warranties of not less than one (1) year from the completion date and that said warranties may be assignable to and/or enforceable by the city and/or the developer, and the connection to the city's system shall not be evidenced that the improvements are defect free or that the contractors constructing the same have no further liability with respect to warranties.

60.13.4.12. The developer obtains all required approvals, such as driveway connection permits from the department of transportation or the city as appropriate.

60.13.4.13. Reserved.

60.13.4.14. If there is to be a performance guarantee let the same be in a form substantially equal to cash which the city can draw upon without the developer's approval and shall meet the requirements of Appendix B, subdivisions, article VI, section 62, Performance Guarantees. In almost all cases where the development agreement provides that the developer is required to construct public improvements at its expense a performance guarantee shall be required, even if the development is not a subdivision. That the performance guarantee extends for a period of not less than one (1) year and can be extended for an additional period of six (6) months. That any such performance guarantees shall be placed or drawn in such a manner that the city manager, in the case of default or failure by the developer in constructing the improvements as provided in the agreement, may draw upon the performance guarantee to complete the improvements, leave the improvements as then in existence and make settlement (at the option of the city) with all contractors or other persons involved with the construction of the improvements, and take any other action that may be necessary or appropriate to protect the interest of the general public in having the development constructed according to approved standards. That the city shall not be required to complete the improvements and that no person shall have any claim against the city for failure to complete the improvements or to require the city to complete the improvements.

60.13.4.15. For adjustment in the water and sewer tap on fees according to what the developer does, or is required to do, in connection with water and sewer tap installation.

60.13.4.16. Upon acceptance of any part of the improvements the same shall thereupon be the sole property of the city and the city shall have the sole control of the same. Developer nor anyone else shall have any right to tap onto, extend, or run laterals from any improvements without the approval of the city.

60.13.4.17. Any open space, recreational area, or other space is to be retained as common area as part of the development and owned by the property owner's association or other suitable entity. The city may accept ownership of the open space parcel(s) after due consideration of the benefit to the city, after the time of development approval.

60.13.4.18. Such agreements as developer and city may enter into with respect to the oversizing of any public improvements that the city might desire or require as part of the development.

60.13.4.19. Such provisions as may be required by article IV of chapter 22 of the City Code for installation of water and sewer lines inside and outside corporate limits of the city.

60.13.4.20. The developer shall secure all easements and permit approvals from third parties which shall be required to construct the public improvements.

(Ord. No. 44-21, § 1, 7-12-21)