The Planning Director, designated by the County Manager, shall administer and enforce this chapter. The Director may be assisted by others as assigned by the County Manager. The duties of the Planning Director may include, but are not limited to, drafting plans and development regulations for adoption; determining whether applications for development approvals are complete; receipt and processing applications for development approvals; providing notices of applications and hearings; making decisions and determinations regarding development regulation implementation; determining whether applications for development approvals meet applicable standards as established by Dare County; conducting inspections; issuing or denying certificates of compliance; enforcing development regulations, including issuing notices of violation and orders to correct violations; recommending initiation of judicial actions against actual or threatened violations; keeping adequate records; and any other actions that may be required to adequately enforce the laws and development regulations for unincorporated Dare County.

(Am. Ord. passed 6-21-2021)

Before construction or development activity commences, development approval from Dare County shall be secured. The various types of review and approval processes shall be as follows:

   1.   Permitted Uses: The Dare County Zoning Ordinance establishes permitted uses in each zoning district that are subject to review and approval by the Dare County Planning Director or the Planning staff under the direction of the Planning Director. The procedures for administrative development approval are established in Section 22-64.

   2.   Special Use Permits: Special use permits are subject to quasi-judicial procedures and decisions are issued by the Dare County Board of Commissioners. Specific requirements for swearing in of witnesses, handling of evidence, and other procedures established by G.S. Ch. 160D are required. Special use permits are subject to the evidentiary hearing process. Group developments as established in Section 22-31, cluster home developments as established in Section 22-31.1 and temporary uses as established in Section 22-68 are subject to quasi-judicial review as special use permits.

(Ord. passed 6-21-2021)

   (a)   Administrative development approvals shall be secured for construction activity or development activity associated with any permitted use in the applicable zoning district for the subject property. Such approval shall be issued by the Planning Director or other Planning official as designated by the Planning Director. Following the issuance of an administrative development approval, an application for a building permit may be submitted to the Dare County Building Inspector. Issuance of development approval by the Planning Director does not supersede or eliminate the need to secure a building permit as established by G.S. Ch. 160D, Article 11. Forms and applications needed to secure administrative development approval shall be provided by the Planning Director.

   (b)   A development approval shall be issued in writing and may be delivered in print or electronic form. Applications for development approvals may be made by the landowner, a lessee or person holding an option or contract to purchase or lease the land, or an authorized agent of the landowner. An easement holder may apply for development approvals if authorized in the easement agreement.

   (c)   Determinations: Determinations on the application or provisions of the Zoning Ordinance may be issued by the Planning Director upon request by a landowner or other parties as appropriate. The Planning Director shall give written notice to the landowner of a determination on development approval and to the party who sought the determination if different from the owner. The notice procedures of Section 22-72 shall be followed.

   (d)   Duration of Administrative Development Approval

      1.   Administrative development approval is valid for one year from the date of development approval. The approval shall expire unless work authorized by the development approval has been substantially commenced as defined in Section 22-2.

      2.   Administrative approvals of shorter duration may be approved for temporary land uses, special event or temporary signs and similar development activities.

      3.   If after commencement, work is discontinued for a period of twelve months, the development approval shall immediately expire. These time periods shall be suspended during any appeal period.

      4.   No work authorized by a development approval that has expired shall be performed until a new development approval has been secured.

   (e)   Changes: After an administrative development approval has been issued, no deviations from the terms of the application or development approval shall be made until written approval of proposed changes or deviations has been obtained. The same review and approval process used for the original approval shall be followed for any major modification. Minor modifications shall be exempt from the full application and approval process and may be approved by the Planning Director in writing. Minor modifications may include decreases in square footage amounts of any proposed structure, revised parking lot layouts, reconfiguration of proposed site improvements in response to North Carolina Fire Codes or other state-level review, decreases in lot coverage limitations, or other modifications of a similar nature. Increased density or height, increased gross floor area, change of use, or the addition of other structures shall not be considered minor modifications.

   (f)   Inspections: The Planning staff may inspect work authorized by a development approval to assure that work is being done in accordance with the terms of the development approval and other applicable State and local laws. Staff shall have authority to enter the premises at all reasonable hours for the purposes of inspection or other enforcement action upon presentation of proper credentials provided the appropriate consent has been given for areas not open to the public or that an appropriate inspection warrant has been secured.

   (g)   Revocation of Administrative Development Approvals: Development approvals may be revoked by notifying the approval holder by written notice stating the reasons for the revocation. The same process used for development approval, including notice, shall be followed in the revocation process. Development approvals shall be revoked for any substantial departure from the approved application, plans or specifications; for refusal or failure to comply with the requirements of any development regulation or any state law delegated to Dare County for enforcement purposes; or for false statements or misrepresentations made in securing the approval. Any development approval mistakenly issued in violation of an applicable state or local law may be revoked. The revocation of a development approval by a staff member may be appealed to the Dare County Board of Adjustment according to the provisions of Section 22-69.1 of this ordinance.

   (h)   Certificate of Zoning Compliance: Dare County may make a final inspection upon completion of work or activity undertaken in conjunction with a development approval and issue a certificate of zoning compliance if the completed work complies with all applicable state and local laws and with the terms of the permit approval. No building, structure or use of land that is subject to a building permit shall be occupied or used until a certificate of zoning compliance has been issued by the Planning Director. A certificate of zoning compliance does not replace the requirement for a certificate of occupancy for any building or structure required by G.S. Ch. 160D, Article 11. A copy of the certificate of zoning compliance shall be presented to the building inspector prior to the issuance of the certificate of occupancy. A temporary certificate of zoning compliance may be issued during alteration or construction for partial compliance of a building pending completion. A temporary certificate shall be issued for a period not to exceed six months and shall clearly be marked as "TEMPORARY" and list any conditions or limitations to protect the safety of the occupants and the public.

(Ord. passed 6-21-2021)

The Board of Commissioners may hear and decide special use permits where such special uses are specified by this chapter. Special use permits shall be subject to quasi-judicial procedures as set forth in Section 22-70. Reasonable and appropriate conditions and safeguards may be imposed upon these permits. Where appropriate, such conditions may include requirements that street and utility rights-of-way be dedicated to the public and that provisions be made for recreational space and facilities. Conditions cannot be imposed on the applicant for which Dare County does not have the statutory authority to impose. Written consent to conditions shall be secured as part of the special use permit process to ensure enforceability of conditions.

   (a)   Application Process: A written application for a special use permit shall be submitted to the Planning Director for processing according to the schedule established by Dare County. Such written application shall indicate the section of the development regulations under which a special use permit is being sought and shall contain the information required by the appropriate development regulation and other information as may be required to insure compliance with this section and applicable development regulations.

   (b)   Planning Board Review: The Planning Board shall review any special use permit applications as a preliminary forum and provide a statement of review to the Board of Commissioners, which may include a recommendation on reasonable and appropriate conditions. However, no part of the forum or Planning Board recommendation shall be used as basis for the decision rendered by the Board of Commissioners.

   (c)   Notice: Notice procedures for evidentiary hearings in Section 22-72 of this chapter shall be implemented during the review of special use permits.

   (d)   SUP Application Materials: The Planning Director or other Planning staff shall transmit to the Board all applicable reports, site plans and written materials relevant to the special use permit application. The administrative materials may be distributed to the Board members prior to the evidentiary hearing if at the same time the materials are distributed to the applicant and to the landowner if that person is not the applicant. The administrative materials may be distributed in written or electronic form. Objections to the inclusion or exclusion of administrative materials may be made before or during the evidentiary hearing. Rulings on unresolved objections shall be made by the Board at the meeting.

   (e)   Quasi-judicial Hearing Standards of Review: The Board of Commissioners shall not approve a special use permit unless it makes written findings that the regulations of this section that set forth specific standards for the use have been met. The Board may consider the type of use, size of the use, size of the property and other relevant factors in evaluating the permit application. The applicant will not bear the burden of proving that all of the site standards (as listed below) have been met; however, the applicant will be required to present evidence sufficient to rebut any evidence presented that the site standards would not be met or that a condition is necessary. The applicant may be required in his/her rebuttal, to show that the proposed use will:

(Ord. passed 6-21-2021; Am. Ord. passed 2-3-2025)

As may be required by North Carolina law, documentation of an approved wastewater system shall be required before a Dare County building permit is issued by the Building Inspector. (11-20-75, art. 10, 10.03)

(Am. Ord. passed 6-21-2021)

All applications for administrative development approvals, special use permits and/or building permits shall be accompanied by plans drawn to scale and sealed by a North Carolina design professional unless otherwise directed by the Dare County Planning Director. The plans shall depict the actual dimensions of the property; the actual sizes and locations of any existing buildings and site improvements on the lot; the location and dimension of any proposed building and other site improvements; existing and proposed uses of the land; number of families and/or units the structure is designed to accommodate; existing and proposed conditions of the land including topographical elevations; elevations of finished floors, proposed parking layouts; setback and other dimensional measurements and any other information as deemed necessary by the Planning Director or Building Inspector in order to review and approve the application. (11-20-75, art. 10, 10.04)

(Am. Ord. passed 6-21-2021)

The Board of Commissioners may approve as special uses under the application provisions of section 22-65 the following temporary uses, notwithstanding other restrictions of this chapter but including such additional conditions and safeguards as may be required by the Commissioners as a provision of such approval:

   (a)   Temporary real estate sales offices may be permitted in any residential district for on-site sales of land or residences located only with the subdivisions within which such offices are located. Any such temporary use must be terminated no more than thirty days from the date that eighty percent of the lots or residences within that subdivision are sold.

   (b)   Temporary construction offices may be permitted in any district to provide on-site quarters for the management and security of construction projects only. Any such temporary use must be terminated no more than 30 days from the date that construction is completed.

   (c)   Any permitted use in a commercial area may occupy a modular unit temporarily while construction of a permanent building on the site is pending, provided the following conditions are met in addition to any other requirements of this chapter:

      (1)   The modular unit is placed on a foundation and anchored according to the State Building Code requirements for a hurricane prone area.

      (2)   Required parking shall be provided.

      (3)   The modular unit may be occupied for no more than one year. If economic or climatic conditions prevent completion of the permanent building within that time, the Board of Commissioners may grant an extension of not more than one additional year.

   (d)   Design and appearance requirements of the County Board of Commissioners are met. (9-7-76, 1; 9-7-82)

(Am. Ord. passed 6-21-2021)

   (a)   Violations: Any of the following shall be a violation of this chapter and subject to enforcement proceedings and remedies as established by local and state law.

      1.   Development Without a Permit: Any work, development, use, construction, remodeling or other activities without first securing the necessary permits as established by this chapter or in violation of any state law delegated to Dare County enforcement purposes.

      2.   Development Inconsistent with Permit: Work, development, use, construction, remodeling or other activities which is inconsistent with an approved site plan, special use permit or other development approval authorized by Dare County.

      3.   Use Violation: Construction, alteration, repair, or use of a building, structure or land that is not an authorized permitted use or special use in the applicable zoning district or is in violation of other zoning regulations found in this chapter.

      4.   Unauthorized Occupancy: Occupancy or use of a building or structure without or before the certificate of zoning compliance has been issued by Dare County for development activities.

   (b)   Notice of Violation: When the Dare County staff determines a violation has occurred, a written notice of violation may be issued. The notice of violation shall be delivered to the holder of development approval and to the landowner of the property involved, if the landowner is not the holder of the development approval. The notice procedures of Section 22-72 shall be followed. The official providing the notice of violation shall certify that the notice was provided and the certificate shall be deemed to be conclusive in the absence of fraud.

   (c)   Stop Work Orders: Whenever work or activity is undertaken in substantial violation of any state or local law or in a manner that endangers life or property, Planning Department staff may order the specific part of the work or activity that is in violation or presents a hazard to be immediately stopped. The written order shall be directed to the person doing the work or activity and shall state the specific work or activity to be stopped, the reasons for the work stoppage, and the conditions under which the work or activity may be resumed. A copy of the order 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. The notice shall be delivered by personal delivery, electronic delivery, or first class mail to the occupant of the property and any person undertaking the work. The person delivering the stop work order shall certify that the notice was provided and the certificate shall be deemed to be conclusive in the absence of fraud. Except as provided in G.S. 160D-1112 and 160D 1208, a stop work order may be appealed to the Board of Adjustment according to Section 22-70 of this chapter. Violation of a stop work order shall constitute a Class 1 misdemeanor.

   (d)   Remedies: Failure to comply with a violation notice issued by Dare County and/or the Board of Adjustment shall be subject to remedies and penalties of § 10.99 of the Dare County Code and as provided by state law.

(Am. Ord. passed 6-21-2021)

   (a)   Appeals of Violation Notices: Appeals of decisions, including notices of violations, made by the staff shall be made to the Dare County Board of Adjustment according to the provisions of Section 22-70 of this chapter.

   (b)   Standing: A person with standing as established in G.S. 160D-1402 may appeal an administrative decision to the Board of Adjustment by filing a notice with the Clerk to the Board of Adjustment or the Planning Director. The notice shall state the grounds for the appeal.

   (c)   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 that it is ultra vires, preempted, or otherwise in excess of statutory authority without filing an appeal under this section.

   (d)   Time to Appeal: The owner or other party shall have 30 days from receipt of written notice of any determination within which to file an appeal. Any other person with standing to appeal shall have 30 days from receipt of 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 by first class mail shall be deemed received on the third business day following deposit of the notice for mailing with the United States Postal Service.

   (e)   Record of Decision: The Dare County official who made the decision shall transmit to the Board all documents and exhibits constituting the record upon which the action appealed from is taken. The materials may be in written or electronic form. 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.

   (f)   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 Dare County official who made the decision certifies to the Board of Adjustment after notice of the 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 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 Dare County official, a request for an expedited hearing of the appeal, and the Board of Adjustment shall meet to hear the appeal within 15 days after such a 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 Dare County may request and the Board of Adjustment may grant a stay or a final decision of development approval applications, including building permits affected by the issue being appealed.

   (g)   Subject to the provision of subsection (f) above, the Board of Adjustment shall hear and decide the appeal within a reasonable time.

   (h)   Alternative Dispute Resolution: Parties to an appeal may agree to mediation or other forms of dispute resolution. Offers for mediation or alternative dispute resolutions shall be submitted by the appellant to the Clerk to the Board of Adjustment for consideration by the County Attorney who shall review and authorize participation in any alternative mediation process. Should the matter be satisfactorily resolved through mediation or other dispute resolution, then the appeal process shall be discontinued and a written decision from the mediation or alternative dispute resolution be prepared and signed by all parties involved in the appeal.

(Ord. passed 6-21-2021)

   (a)   Quasi-judicial procedures are to be followed in determining appeals of administrative decisions, variances, and special use permits. The following general procedures shall be followed in the handling of these matters. Additional procedures for appeals and variances are found in Section 22-69.1 and special use permits in Section 22-65.

   (b)   Notice of Hearing: Notice of any evidentiary hearing held in conjunction with an appeal, variance, or special use permit shall be according to the provisions of Section 22-72 for mailed notices, posting of property and electronic postings.

   (c)   Administrative Materials. The Planning Director or other Planning staff shall transmit to the Board of Adjustment all applications, reports and written materials relevant to the matter being considered. The administrative materials may be distributed to the Board members prior to the evidentiary hearing if at the same time they are distributed to the Board a copy is also provided to the applicant and to the landowner if that person is not the applicant. The administrative materials may be in written or electronic form. Objections to the inclusion or exclusion of administrative materials may be made before or during the evidentiary hearing. Rulings on unresolved objections shall be made by the Board at the hearing.

   (d)   Presentation of Evidence. The applicant, Dare County, and any person who would have standing as established in G.S. 160D-1402 shall have the right to participate as a party at the evidentiary hearing. Other witnesses may present competent, material, and substantial evidence that is not repetitive as allowed by the Board. Objections regarding jurisdictional and evidentiary issues, including but not limited to, the standing of a party may be made to the Board. The Board Chair shall rule on any objections and the Chair's rulings may be appealed to the full Board. These rulings are also subject to judicial review pursuant to G.S. 160D-1402. Objections based on jurisdictional issues may be raised for the first time on judicial review.

   (e)   Appearance of Official, New Evidence: The Dare County official who made the decision or the person currently occupying that position if the decision maker is no longer employed with Dare County 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 Dare County 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 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 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, Dare County and any persons with standing under G.S. 160D-1402(d) 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 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 subpoenas 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-947(e) or other appeals 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(k).

   (i)   Voting: The concurring vote of 4/5 of the Board shall be necessary to grant a variance. A majority of the Board members shall be required to decide any other quasi-judicial matter including special use permits and 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(g) shall not be considered members of the Board for calculation of the requisite majority if there are no qualified alternatives available to take the place of such members.

   (j)   Decisions: The Board of Adjustment 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. The Board shall determine contested facts and make its decision within a reasonable time. Decisions shall be based upon competent, material, and substantial evidence in the record. Every decision shall be made in writing and reflect the Board's determination of contested facts and their application of applicable standards. This written report shall be approved by the Board and signed by the Chair of the Board or other duly authorized member of the Board. A quasi-judicial decision is effective upon filing of the written decision with the Clerk to the Board of Adjustment The decision of the Board shall be delivered within a reasonable time by personal delivery, electronic mail, or be first-class mail to the applicant, landowner, and to any person who has submitted a written request for a copy of the decision prior to the date the decision becomes effective. The Clerk to the Board shall certify 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. passed 6-21-2021)

   (a)   Appeals and variances are quasi-judicial proceedings of the Dare County Board of Adjustment as authorized in Chapter 152 of the Dare County Code of Ordinances. Hearings conducted on appeals and variances are evidentiary hearings and subject to the procedures set forth in Section 22-71. Special use permits are quasi-judicial proceedings of the Dare County Board of Commissioners as set forth in Section 22-70.

   (b)   Appeals of Administrative Development Decisions and Other Staff Decisions: The Board of Adjustment as established in Chapter 152 of the Dare County Code of Ordinances shall hear and decide appeals on administrative decisions regarding administrative development approvals and enforcement of the zoning regulations and appeals arising out of any other ordinance that regulates land use or development. The provisions of Sections 22-69.1 and 22-70 (quasi-judicial procedures) are applicable to these appeals.

   (c)   Special Use Permits: The Board of Commissioners shall hear and decide special use permits in accordance with principles, conditions, safeguards, and procedures specified in Section 22-65 of this chapter. Reasonable and appropriate conditions and safeguards may be imposed upon these permits. Where appropriate, such conditions may include requirements that street and utility rights-of-way be dedicated to the public and that provisions be made for recreational space and facilities. Conditions cannot be imposed on the applicant for which Dare County does not have the statutory authority to impose.

   (d)   Variances: The Board of Adjustment shall hear and decide variances subject to the provisions of G.S. 160D and the provisions set forth in this section. When unnecessary hardships would result from carrying out the strict letter of the Zoning Ordinance, the Board of Adjustment shall vary any of the provisions of the zoning regulation upon a showing of all of the following:

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

      (2)   The hardship results from conditions that are peculiar to the property, such as location, size, or topography. Hardships resulting from personal circumstances, as well as hardships resulting from conditions that are common to the neighborhood or the general public, may not be the basis for granting a variance. A variance may be granted when necessary and appropriate to a make a reasonable accommodation under the Federal Fair Housing Act for a person with a disability.

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

      (4)   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.

   (e)   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 ordinance that regulates land use or development may be provided for variances consistent with the provisions of this subsection.

   (f)   A variance shall not be granted to allow a use not permitted by right or special use permit in any zoning district.

   (g)   The following conditions shall not serve as conditions for granting of a variance:

      (1)    The non-conforming use of abutting lands, structures, or buildings in the same zoning district that applies to the subject property.

      (2)   The existence of an approved special use permit for the subject property.

      (3)   The fact the subject property could be utilized more profitably if a variance was granted or because of a financial hardship of the applicant.

(Ord. passed 6-21-2021)

Notice procedures for administrative decisions, legislative hearings, and evidentiary hearings are as follows:

   (a)   Administrative Development Approval and Determinations, Revocation of Administrative Development Approvals, and Notices of Violations of Administrative Development Approvals (160D-403)

      1.   Mailed Notice: The Planning Director or designee shall give written notice to the landowner of the subject property of a determination of development approval 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 provided to the last address listed for the owner on the Dare County tax records and to the address provided in the application or request for a determination if the party seeking the determination is different from the owner. For the purposes of this notice, delivery by first-class mail shall be deemed received on the third business day following deposit of the notice in the mail with the United States Postal Service and delivery by electronic mail shall be deemed received on the date sent.

      2.    Posted Notice: Notice of violations may also be posted on the property at the discretion of the Dare County Planning Director.

   (b)   Evidentiary Hearings (Quasi-judicial) for Appeals, Variances, and Special Use Permits (160D-406)

      1.   Mailed Notice: Notice of an evidentiary hearing shall be mailed to the person or entity whose appeal, variance or special use permit 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 as provided in the applicable development regulation. In the absence of evidence to the contrary, Dare County may rely on the Dare County tax listing to determine owners of property entitled to mailed notice. The notice must be deposited in the mail at least 10 days, but not more than 25 days, prior to the date of the hearing. 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.

      2.   Posted Notice: Dare County shall prominently post a notice of the hearing on the site that is the subject of the hearing or on an adjacent street or highway right-of-way. This notice shall be posted according to the same time period applied to mailed notices.

      3.   Electronic Postings: Dare County shall post notice of any evidentiary hearing on the Dare County webpage according to the same time period applied to mailed notices.

   (c)   Legislative Hearings for Zoning Map Amendments (160D-601)

      1.   Mailed Notice: The owner of affected parcels of land and the owners of all parcels of land abutting that parcel of land shall be mailed notice of the hearing on the proposed zoning map amendment by first-class mail to the last address listed for such owners on the Dare County tax records. 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 10 days but not more than 25 days prior to the date of the hearing.

   (d)   Large-scale Zoning Map Amendments: For large-scale zoning map amendments, as an alternative to the mailed notice requirements listed above, Dare County may elect to publish notice of the hearing provided each advertisement shall not be less than 1/2 of a newspaper page in size. Large-scale amendments are those that propose to change the zoning designation of more than 50 properties owned by at least 50 different property owners. The advertisement shall only be effective for property owners 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 according to the provisions for mailed notice.

      2.   Posted Notice: When a zoning map amendment is proposed, Dare County shall prominently post notice of the hearing on the site proposed for the amendment or on an adjacent public street or highway right-of-way. This notice shall be posted according to the same time period applied to mailed notices. When multiple parcels are included in a zoning map amendment, a posting on each individual parcel is not required but Dare County shall post sufficient notices to provide reasonable notice to interested persons.

      3.   Published Notice: For any legislative hearing on a zoning map or text amendment, notice shall be given once a week for 2 successive calendar weeks in a newspaper having general circulation in the area. The notice shall be published the first time not less than 10 days nor more than 25 days before the date scheduled for the hearing. In computing such period, the day of publication is not be included but the day of the hearing shall be included.

      4.   Except for Dare County-initiated zoning map amendments, when an application is filed to request a zoning map amendment by a person that is not the landowner or an authorized agent, the applicant shall certify to Dare County that the landowner as shown on the Dare County tax records has received actual notice of the proposed amendment and a copy of the hearing notice. Actual notice shall be provided in any manner permitted under G.S. 1A-1, Rule 4(j). If notice cannot with due diligence be achieved by personal delivery, certified mail, or by a designated delivery service authorized pursuant to 26 U.S.C. 7502(f)(2), notice may be given by publication consistent with G.S. 1A-1 Rule 4(j). The person or persons required to provide notice shall certify to Dare County that actual notice has been provided, and such certificate shall be deemed conclusive in the absence of fraud.

      5.   For zoning text amendments which propose to add a permitted or special use to a specific zoning district or multiple zoning districts or text amendments which propose to apply to all properties in unincorporated Dare County, mailed notification and posting of properties is not required by North Carolina law. However, Dare County shall publish notice of the legislative hearing and post an electronic notice on the Dare County webpage. Other notice procedures may be implemented based on the specifics of the request and the number of properties involved in the amendment.

      6.   Electronic Postings: Dare County shall post notice of any legislative hearing on the Dare County webpage according to the same time period applied to published notices.

      7.   Planning Board Meetings: In advance of a Planning Board meeting at which a zoning map amendment request will be reviewed, notice of the amendment request shall be provided by the posting of a notice on the subject property and shall be provided to any abutting property owners. For zoning text amendments, notice shall be published on the Dare County Planning Department webpage. Such notice shall indicate the nature of the request, the applicant, time and date of the Planning Board meeting, and that comments on the amendment may be made to the Planning Board during the citizen comment period offered at the beginning of the Planning Board meeting. The notice procedures for Planning Board review of an amendment shall be made no less than 10 calendar days in advance of the scheduled Planning Board meeting.

      8.   Minor errors in any notice shall not invalidate the notice or any associated hearing if a bona fide attempt has been made to comply with the applicable notice requirements. Minor errors may include but are not limited to errors in legal description or typographical or grammatical errors. Failure of a party to receive written notice shall not invalidate subsequent action. If inquiries on the compliance of notice procedures are made, the applicable board conducting the hearing shall request the Planning Director to make a finding on the consistency of the notice requirements and such finding shall be made available as part of the final action on the request.

(Ord. passed 6-21-2021)

   (a)   Legislative Decisions

      1.   Board of Commissioners: A member of the Dare County Board of Commissioners shall not vote on any legislative matter regarding a development regulation adopted 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 member of the Dare County Board of Commissioners shall not vote on any zoning amendment or preliminary subdivision plat approval if the landowner of the property or the applicant is a person with whom the member has a close familial, business, or other associational relationship.

      2.   Planning Board: A member of the Planning Board shall not vote on any advisory or legislative decision regarding a development regulation 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 Planning Board member shall not vote on any zoning amendment if the landowner of the property subject to a rezoning petition or an applicant of a text amendment, a preliminary plat approval or travel trailer park/campground site plan is a person with whom the member has a close familial, business, or other associational relationship.

      3.   Administrative Staff: No Planning Department staff member shall make a final decision on an administrative development approval 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 Planning Department staff person. If the affected staff member is the Planning Director, then the Dare County Manager shall be the designated person to render the administrative decision. 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 Dare County to provide staff support shall engage in any work that is inconsistent with his or her duties in the Planning Department or inconsistent with the interest of Dare County as determined by Dare County.

   (b)   Quasi-judicial Decisions: A member of any Dare County board exercising quasi-judicial functions, including special use permits, 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.

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

   (d)   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.

(Ord. passed 6-21-2021)

   (a)   Any zoning map amendment, zoning text amendment or amendment to other development regulation is subject to legislative review and approval by the Dare County Board of Commissioners. A zoning map amendment is the process used to rezone or change the specific zoning classification that applies to one parcel or multiple parcels. A zoning text amendment is a revision made to the text of the Zoning Ordinance involving the list of permitted uses or special uses allowable in a zoning district or the adoption or revision of regulations that apply to zoning districts as a whole. Amendments may be initiated by the Board of Commissioners, by the Planning Director upon consultation with the Board of Commissioners, or by any landowner in unincorporated Dare County. Applications for a zoning amendment shall be made in writing to the Dare County Planning Director on an application provided for such a process. The application shall be signed by all property owners or their duly authorized agents.

   (b)   No amendment to zoning regulations or a zoning map that down-zones property shall be initiated nor shall it be enforceable without the written consent of all property owners whose property is the subject of the down-zoning amendment, unless the down-zoning amendment is initiated Dare County. For purposes of this section, down-zoning means a zoning ordinance that affects an area of land in one of the following ways: 1) by decreasing the development density of the land to be less dense than was allowed under its previous usage; 2) by reducing the permitted uses of the land that are specified in a zoning ordinance or land development regulation to fewer uses than were allowed under its previous usage. (S.L. 2019-111, Part 1, Method of procedure)

(Ord. passed 6-21-2021)

   (a)   Any zoning map amendment or zoning text amendment shall be submitted to the Dare County Planning Board for review and comment. If no written report is received from the Planning Board within 30 days of submission of the amendment to the Planning Board, the Board of Commissioners may act on the amendment without the Planning Board report. The Board of Commissioners is not bound by the recommendations, if any, of the Planning Board.

   (b)   Notice of Planning Board review of any zoning amendment shall be according to the procedures established in Section 22-72 of this chapter. The public comment period at Planning Board meetings shall be used for citizen input on zoning amendments. Citizen comments on any proposed zoning amendment may be made at the public comment period held at the beginning of each Planning Board meeting. Citizen comments also may be submitted electronically or mailed to the Planning Board.

   (c)   When making a recommendation on a zoning map or text amendment, the Planning Board shall advise and comment on whether the proposed action is consistent with the Dare County Land Use Plan and any other officially adopted plan that is applicable. The Planning Board shall provide a written recommendation to the Board of Commissioners that addresses the plan consistency and other matters as deemed appropriate by the Planning Board. A comment by the Planning Board that a proposed amendment is inconsistent with the land use plan shall not preclude consideration or approval of the proposed amendment by the Board of Commissioners.

(Ord. passed 6-21-2021)

The Planning Director shall deliver the recommendation of the Planning Board to the Board of Commissioners in a reasonable timeframe. The recommendation from the Planning Board shall include any materials submitted by the applicant or property

owner, a report on any citizen comment received by the Planning Board, and a statement of plan consistency. The Board of Commissioners shall consider the Planning Board recommendation but is not bound by any such recommendation. Final action by the Board of Commissioners on a proposed regulation or amendment shall proceed in a timely manner as practicable to avoid inordinate delays.

(Ord. passed 6-21-2021)

Before adopting, amending, or repealing any ordinance or development regulation, the Board of Commissioners shall hold a legislative hearing. Notice procedures for a legislative hearing according to the procedures of Section 22-72 of this ordinance shall be implemented. Upon conclusion of the legislative hearing, the Board may choose to act on the proposed regulation or amendment, may choose to revise the proposed regulation or amendment based on citizen comment or Board discussion, may refer the item to County staff or Planning Board for further consideration, or may choose to take no action on the proposed regulation or amendment. Failure to take no action on the proposed regulation or amendment shall be deemed a denial of the proposed regulation or amendment unless stated otherwise by the Board of Commissioners. A statement of consistency and a statement of reasonableness shall be issued by the Board at the time of action on the item. A written account of any action by the Board of Commissioners shall be delivered by the Planning Director to the applicant and any party that has requested such information.

(Ord. passed 6-21-2021)

If any resident or property owner in Dare County submits a written statement regarding a proposed amendment, modification or repeal to a zoning regulation (including any text or map amendment) to the Clerk to the Board of Commissioners at least 2 business days prior to the proposed vote on such change, the Clerk shall deliver such written statement to the Board of Commissioners.

(Ord. passed 6-21-2021)

The Dare County Land Use Plan shall serve as the comprehensive plan consistent with G.S. 160D-501. The Dare County Land Use Plan sets forth goals, policies, and programs intended to guide the present and future physical, social, and economic development of the jurisdiction. This plan shall be reasonably maintained by Dare County. Any updates to the Plan shall be adopted by the Board of Commissioners following the legislative decision process set forth in Sections 22-72 and 22-84 of this ordinance. The planning process for updates to the plan shall include opportunities for citizen engagement. The Dare County Planning Board shall serve as the advisory committee for any update process. Updates to the land use plan shall also follow any guidelines and procedures for certification by the State of North Carolina Coastal Resources Commission or Division of Coastal Management as required by state regulations.

   (a)   Statement of Consistency: The Board of Commissioners shall approve a statement describing whether the action is consistent or inconsistent with the Land Use Plan. A plan consistency statement may be fulfilled by a clear indication in the official minutes that the Board of Commissioners was aware and considered the Planning Board's recommendation and any relevant portions of the Land Use Plan.

If a map amendment is adopted and the action is deemed to be inconsistent with the Land Use Plan, then the amendment shall have the effect of also amending the future land use map in the Land Use Plan. Any amendment that results in changes to the future land use map shall be submitted to review by the North Carolina Coastal Resources Commission or the Division of Coastal Management as required by State regulations. If a zoning map amendment qualifies as a large-scale rezoning under G.S. 160D-602(b), the Board of Commissioners statement shall address the overall rezoning and describe the analysis and policies in the Land Use Plan that were considered in their recommendation.

   (b)   Statement of Reasonableness: When adopting or rejecting any petition for a zoning text or map amendment, a statement explaining the reasonableness of the proposed zoning amendment shall be approved by the Board of Commissioners. The statement of reasonableness may consider, among other factors: the size, physical conditions and other attributes of any area proposed to be rezoned; the benefits and detriments to the landowners, the neighbors, and the surrounding community; the relationship between the current actual and permissible development and the development permissible under the proposed amendment; why the action taken is in the public interest; and any changed conditions warranting the amendment.

If a zoning map amendment qualifies as a large-scale rezoning under G.S. 160D- 602(b) the reasonableness statement may address the overall rezoning.

A statement of reasonableness and a statement of consistency with the land use plan may be combined into a single statement by the Board of Commissioners.

(Ord. passed 6-21-2021)

If a permit application made for development approval is submitted 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. The duration of vested rights created by development approvals is as set forth in Section 22-88 of this chapter.

(Ord. passed 6-21-2021)

   (a)   A person claiming a statutory or common law vested right may submit information to substantiate that claim to the Planning Director who shall make an initial determination as to the existence of the vested right. The decision of the Planning Director may be appealed according to Section 22-69.1 of this chapter. On appeal, the existence of the vested right shall be reviewed de novo. In lieu of seeking a determination or pursue an appeal, a person claiming a vested right may bring an original civil action as provided in G.S. 160D-1403.1.

   (b)   Amendments to Dare County zoning regulations or other land use development regulations shall not be applicable or enforceable for development that has been permitted or approved pursuant to this section as long as one of the following approvals remains valid and unexpired:

      1.   A Dare County building permit. Building permits are valid for a 6-month period as set forth in G.S. 160D-1111.

      2.   Dare County administrative development approval. Administrative development approvals shall run for a period of 1 year from the date of the approval unless work has substantially commenced.

      3.   A site-specific vesting plan. A vested right established by a site specific vesting plan shall run for a period of 2 years from the date of the approval of the development application. For the purposes of this chapter, a site specific vesting plans shall be as follows:

         a.   A special use permit approved by the Board of Commissioners.

         b.   Subdivision preliminary plat approval.

      4.   Multi-phase Development Plan: a multi-phase development is vested for a period of 7 years from the date of approval by the Board of Commissioners. A multi-phase development plan is vested for the entire development with the zoning and subdivision regulations in place at the time of approval. For the purposes of this subsection, a multi-phase development shall mean a development containing 25 acres or more that is submitted for development approval to occur in more than 1 phase and is subject to a master development plan with committed elements, including a requirement to offer land for public use as condition of approval of the master development approval plan. Multi-phase developments shall be subject to approval as special use permits according to Sections 22-64 and 22-71.

      5.   Development agreement as approved by the Dare County Board of Commissioners according to the provisions of G.S. Ch. 160D, Article 10.

   (c)   The procedures for administrative development approval are set forth in Section 22-64 of this chapter.

   (d)   The procedures for preliminary plat approval are established in Chapter 153 of the Dare County Code of Ordinances.

   (e)   The procedures for a special use permit are set forth in Section 22-65 of this chapter.

      1.   Each site-specific vesting plan shall include the information required by Dare County for approval as a special use permit.

      2.   Each site specific vesting plan shall follow the notice and hearing procedures for special use permits.

      3.   An approved site specific vesting plan and its conditions may be amended with the approval of the applicant and Dare County in the same manner as required for the special use permit.

      4.   The Dare County Board of Commissioners may extend the vesting period up to 5 years following the same notice and hearing procedures used for the original vesting approval upon finding that:

         a.   The permit has not yet expired;

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

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

      5.   Following the establishment of a vested right upon the approval of a site specific vesting plan, the Planning Director shall issue a written statement acknowledging the vested right which describes the duration of the vesting period, the conditions of approval of the site specific vesting plan and other information deemed by Dare County as necessary to administer the vested right.

      6.   The vested right shall confer upon the landowner the right to undertake and complete the development and use of the property as established in the site specific vesting plan. Failure to comply with the approved terms and conditions of the site specific vesting plan shall result in a forfeiture of vested rights. A vested right shall attach to and run with the land.

   (f)   Limits of Site-specific Vesting Plans

      1.   Nothing in this chapter shall prohibit the revocation of the original approval or other remedies for failure to comply with applicable terms and conditions of the approval of the Dare County Zoning Ordinance. The development remains subject to subsequent review and approvals to ensure compliance with the terms and conditions of the original approval.

      2.   The establishment of a vested right according to this chapter shall not preclude the application of overlay zoning that imposes additional requirements but does not affect the allowable type or intensity of use, or ordinances that are general in nature and applicable to all property subject to land use regulation by Dare County.

      3.   New and amended zoning regulations that would apply except for the vested right shall become effective upon the expiration of termination of the vested right established by the ordinance.

      4.   Upon issuance of a building permit, the expiration provisions of G.S. 160D-1111 and 160D-1115 shall apply except that a building permit shall not expire or be revoked because of the running of time while a zoning vested right is outstanding.

      5.   Any vested right for a site-specific vesting plan is subject to the exceptions set forth in G.S. 160D-108.1.

      6.   Notwithstanding any provision of this section, the establishment of a vested right under this section shall not preclude, change, or impair the authority of Dare County to adopt and enforce development regulation provisions governing non-conforming uses or situations.

      7.    A sketch plan or document that fails to describe the type and intensity of a specified parcel or parcels of land does not constitute a vesting plan. A variance shall not constitute a site-specific vesting plan or a condition of approval to secure a variance constitute a site-specific vesting plan.

(Ord. passed 6-21-2021)

The Dare County Board of Commissioners may approve development agreements as authorized in G.S. 160D-1001 and the procedures set forth in G.S. 160D-1001 to 1012 shall be followed for the approval of such agreements. For the purposes of this section, a development agreement is a development project that occurs in multiple phases over several years requiring a long-term commitment of both public and private resources.

(Ord. passed 6-21-2021)