Building features that may be exempt from minimum yard requirements, setbacks or building restriction lines are described as follows:

   (C)   No ornamental feature, bay window, stoop, stairs, eave, overhang or similar feature of an accessory structure shall project into any required front, rear or side setback or building restriction lines applicable to accessory structures;

   (D)   Community ocean and sound access walkway structures located within common property designated as such at the time of subdivision plat recordation, within an easement granted to a subdivision or community association for the purposes of providing community access to the ocean or sound, or within the right-of-way of a private street, are exempt from the minimum yard requirements of this chapter as well as the applicable provisions of § 156.128(A)(2). Dune walkover structures subject to this exemption must still comply with all applicable standards found in § 156.124(C)(1);

   (E)   Private walkway structures less than 4 feet in width that directly connect to walkway structures listed in division (D) above are exempt from the minimum yard requirements of this chapter as well as the applicable provisions of § 156.128(A)(2). This exemption shall also apply to private walkway structures constructed for the purpose of providing ocean or sound access that are shared between 2 adjoining property owners. Dune walkover structures subject to this exemption must still comply with all applicable standards found in § 156.124(C)(1);

   (F)   Private walkway structures less than 4 feet in width constructed less than 12 inches above grade are exempt from the minimum yard requirements of this chapter as well as the applicable provisions of § 156.128(A)(2). Dune walkover structures and sound access walkways are not exempt from minimum yard requirements unless in compliance with the standards of § 156.051(E). Walkway structures are not exempt from minimum yard requirements if the walkway abuts a swimming pool deck or is located within 3 feet of a swimming pool; and

   (G)   Municipally owned walkways, boardwalks, multi-use paths and sidewalks are exempt from the minimum yard requirements of this chapter as well as the applicable provisions of § 156.128(A)(2).

(Ord. 04-23, passed 10-6-2004, § 24; Am. Ord. 05-04, passed 4-6-2005; Am. Ord. 06-01, passed 4-5-2006; Am. Ord. 08-05, passed 11-5-2008; Am. Ord. 17-07, passed 8-2-2017; Am. Ord. 21-01, passed 6-2-2021; Am. Ord. 22-08, passed 9-7-2022)

   (A)   Notwithstanding any other provision of this chapter, for single-family dwellings built prior to July 3, 2002, with principal structures that encroach into the minimum required yards of a residential zoning district, additions shall be permitted within the existing building footprint, exclusive of uncovered decks, provided that the completed structure shall not exceed the maximum building height of the zoning district in which it lies, and provided that the side yard shall not be less than 8 feet, and the front and rear yards shall be not less than 15 feet, and that the addition conforms to all other provisions of the zoning district regulations.

   (B)   Vertical additions to uncovered decks shall be permitted only as additional uncovered decks of the same or less footprint.

   (C)   Notwithstanding any other provision of this chapter, for any single-family dwelling built prior to July 3, 2002 that exceeds the maximum height for the zoning district in which it is located, an addition can be constructed to match the height of the existing roofline, provided that the addition does not exceed the maximum building height of the zoning district by more than one foot. The addition must conform with all other provisions of the town's adopted zoning, flood damage prevention, and building code regulations.

(Ord. 04-23, passed 10-6-2004, § 24; Am. Ord. 05-04, passed 4-6-2005; Am. Ord. 06-01, passed 4-5-2006; Am. Ord. 17-02, passed 4-5-2017; Am. Ord. 21-01, passed 6-2-2021; Am. Ord. 25-03, passed 6-4-2025)

   The Town Council may, by special use permit, modify the minimum yard and building setback and height requirements to allow improvements to existing single-family homes that had approved certificates of occupancy on July 1, 2003, in accordance with the following provisions:

   (A)   The Zoning Administrator shall review the proposed application and determine if a special use permit is necessary to permit reasonable opportunity to improve the subject property;

   (B)   Upon determination by the Zoning Administrator that a special use permit is necessary, the town shall process the application and schedule an evidentiary public hearing by the Town Council in accordance with the procedures set forth in § 156.155 as well as the procedures set forth below:

   (C)   The Town Council may grant a special use only after determining that the application meets the following criteria:

      (1)   The site for the proposed use is adequate in size and shape, and the proposed use will not negatively affect adjacent property or the surrounding area;

      (2)   The special use will not be inconsistent with the objectives specified in the CAMA Comprehensive & Land Use Plan;

      (3)   The applicant has demonstrated that the requirements of this chapter are unreasonable or impractical due to unusual building design, lot shape or mature vegetation; or there are practical siting constraints where original placement of the dwelling on the lot prohibits reasonable improvements that meet existing requirements;

      (4)   Any height special use authorized under the terms of this section for an addition to an existing structure shall be limited to no greater than 5 feet beyond the maximum height permitted in the zoning district; and

      (5)   The proposed structural modifications meet sound residential design objectives to:

         (a)   Minimize loss of privacy on neighboring properties;

         (b)   Maximize image of quality residential development to the street frontage; and

         (c)   Avoid reduction of light and air to neighboring properties.

(Ord. 04-23, passed 10-6-2004, § 24; Am. Ord. 05-04, passed 4-6-2005; Am. Ord. 06-01, passed 4-5-2006; Am. Ord. 09-07, passed 8-5-2009; Am. Ord. 21-01, passed 6-2-2021)

   The Zoning Administrator may approve a reduction in the minimum yard requirements for existing single-family homes that had approved certificates of occupancy on July 1, 2003, only to accommodate limited improvements to an existing residence and to approve construction of driveways on substandard lots or shared driveways in accordance with the following provisions:

   (A)   The property owner or contract purchaser shall submit an application to the Zoning Administrator. At the time of application, the applicant shall pay a fee in accordance with the town’s fee schedule;

   (B)   The applicant shall submit all information deemed necessary by the Zoning Administrator to permit adequate review of the application;

   (C)   The applicant shall provide notice, by certified mail, to the homeowners’ association in the community to which the subject property belongs and to owners of each property abutting or across the street from the subject property informing them that a request for reduction of minimum yard requirements has been submitted and will be considered by the Zoning Administrator. If the property abutting or across the street from the subject property is of condominium ownership, then notification sent to the condominium association shall be sufficient to satisfy this provision;

   (D)   For applications concerning residential properties located in neighborhoods with homeowners’ association architectural review processes, the applicant shall submit evidence of approval of the requested special use by the applicable homeowners’ association. For properties without homeowners’ association architectural review processes, the applicant shall submit a notarized affidavit stating that an architectural review process does not exist in the subject community;

   (E)   The Zoning Administrator may approve a reduction upon finding that the proposal meets the following criteria:

      (1)   The improvement proposed is consistent with the Comprehensive & Land Use Plan;

      (2)   The improvement proposed does not increase the footprint of the existing single-family dwelling, nor does it convert structural elements that are not currently under roof (such as open decks) to living space;

      (3)   The proposed expansion will not adversely affect adjacent property or the surrounding area;

      (4)   The applicant has demonstrated that the proposed improvement cannot reasonably or logically be accommodated elsewhere on the lot (in the case of shared driveways or individual driveways on narrow lot frontages that render the combination of setback and driveway width standards impossible to attain); and

      (5)   The proposed structural modifications meet sound residential design objectives to:

         (a)   Minimize loss of privacy on neighboring properties; and

         (b)   Avoid reduction of light and air to neighboring properties.

   (F)   The Zoning Administrator may impose conditions upon any reduction as deemed necessary in the public interest to secure compliance with the considerations in this section; and

   (G)   If the Zoning Administrator does not approve a reduction, the applicant may file a special use for consideration by the Town Council or a variance for consideration by the Board of Adjustment, in accordance with the provisions of this chapter.

(Ord. 04-23, passed 10-6-2004, § 24; Am. Ord. 05-04, passed 4-6-2005; Am. Ord. 06-01, passed 4-5-2006; Am. Ord. 21-01, passed 6-2-2021)

   (A)   The following architectural features may extend no more than 5 feet above the applicable zoning district height limit:

      (1)   Chimneys;

      (2)   Cupolas/observation towers, provided the floor area of the structure is no greater than 64 square feet, including the stairwell; and

      (3)   Parapet walls and mechanical appurtenances, provided they extend no more than 4 feet above the roof line of the building to which they are attached.

   (B)   Certain structures, including wind turbines, wireless telecommunications systems, and water towers, are allowed to exceed maximum height limitations of the zoning district in which they are located, subject to the standards, limitations, and procedures as set forth in other applicable sections of this chapter.

   (C)   Church spires may extend no more than 30 feet above applicable zoning district height limit.

   (D)   This section shall not apply to variances to the height regulations contained in this chapter, which shall be considered by the Board of Adjustment in accordance with the procedures of § 156.167.

(Ord. 04-23, passed 10-6-2004, § 25; Am. Ord. 10-10, passed 1-5-2011; Am. Ord. 10-13, passed 1-5-2011; Am. Ord. 21-01, passed 6-2-2021)

   In zoning districts RS-1 and R-2, a small child care home as defined in § 156.002 above may be authorized by the Town Council by a special use permit. Upon determination by the Zoning Administrator that a special use permit is necessary, the town shall process the application and schedule an evidentiary public hearing by the Town Council in accordance with the procedures set forth in § 156.155 as well as the procedures set forth below.

   (A)   The applicant shall provide documentation that all supplementary permit, registration and/or license applications have been submitted to the appropriate review agencies at the time a special use permit is scheduled for review by the Town Council. Within 90 days of the date the Town Council authorized the special use permit, the applicant shall submit copies of all supplementary permits and/or licenses. Upon receipt of all necessary supplementary permits and/or licenses, the staff shall issue the special use permit. Failure to deliver those necessary supplementary permits and/or licenses within 90 days shall render the Town Council approval null and void.

   (B)   The applicant shall provide affidavits attesting to the applicant’s occupancy of the proposed small child care home.

   (C)   The applicant shall submit a site plan depicting the proposed site and all associated improvements. The staff shall review the site plan for compliance with the regulatory guidelines of the zoning district where the small child care home is proposed.

   (D)   A special use permit for a small child care home shall not be authorized if another small child care home is in operation within a 500 foot radius of the applicant’s proposed location.

      (2)   Ninety days prior to the expiration of the special use permit, the applicant shall request re-authorization of the special use permit.

      (3)   There shall be no limit on renewal requests. Each renewal request shall be considered by the Town Council and may be authorized or rejected at the discretion of the Council.

      (4)   If it is not the desire of the applicant to continue to operate the small child care home, those activities authorized by the special use permit shall be discontinued immediately.

      (2)   If the zoning official finds any violations, the applicant shall be notified in writing of the violations and be granted 30 days in which to correct the violations.

      (3)   If after 30 days, the applicant does not correct cited violations, notice shall be affixed to the site or structure indicating the initiation of revocation procedures.

      (4)   Fifteen days after the revocation notice has been posted, the special use permit may be revoked.

      (5)   The special use permit may be reauthorized only after review and approval by the Town Council.

(Ord. 04-23, passed 10-6-2004, § 26; Am. Ord. 09-07, passed 8-5-2009; Am. Ord. 21-01, passed 6-2-2021)

      (1)   The purpose of this section is to establish general guidelines for the siting of telecommunications towers and antennas.

      (2)   The goals of this section are to:

         (a)   Encourage the location of towers in non-residential/non-historical areas and minimize the total number of towers throughout the community;

         (b)   Enhance the ability of the providers of telecommunications services to provide those services to the community quickly, effectively and efficiently;

         (c)   Strongly encourage the joint use of new and existing tower sites;

         (d)   Encourage the location of telecommunications towers and antennas, to the extent possible, in areas where the adverse impact on the community is minimal;

         (e)   Encourage the location of telecommunications towers and antennas in configurations that minimize the adverse visual impact of the towers and antennas;

         (f)   Whenever possible, prioritize space on towers for public purpose use; and

         (g)   Ensure that the placement, construction, and modification of wireless communications facilities complies with all applicable state and federal laws in such a manner as not to unreasonably discriminate between providers of functionally equivalent personal wireless services or to have the effect of prohibiting personal wireless services.

 

      (1)   Town Council approval as special uses in the applicable zoning district:

         (a)   Antenna attached to an existing principal building or structure up to 100 feet of maximum height including height of principal building or structure in the zoning district where permitted;

         (b)   Freestanding towers designed for co-location up to 200 feet in maximum height in the zoning districts where permitted;

         (c)   Freestanding towers designed for 1 provider up to 100 feet in maximum height in the zoning districts where permitted;

         (d)   Applications for co-location providers on an existing tower where application for co-location would result in tower height over 200 feet;

         (e)   Stealth antennas located in Single-Family Residential (RS-1 & RS-2) zoning districts; and

         (f)   Small wireless facilities and utility poles installed to support small wireless facilities located outside of public rights-of-way in Single-Family Residential (RS-1 & RS-2) zoning districts.

      (2)   Board of Adjustment review (requires a 4/5 vote for approval).

         (a)   Antenna attached to an existing principal building or structure over 100 feet of maximum height including height of principal building or structure in the zoning districts where permitted;

         (b)   Freestanding towers designed for co-location over 200 feet in maximum height in the zoning districts where permitted; and

         (c)   Freestanding towers designed for 1 provider over 100 feet in maximum height in the zoning districts where permitted.

         (a)   Stealth antennas located in other than single-family residential (C-PR, R-2, C-l, C-2, S-l & V-C) zoning districts;

         (b)   Co-location providers on an existing tower where application for co-location would result in tower height of less than 200 feet of maximum height;

         (c)   Addition of antenna to existing utility pole, water tower, WTS tower or similar utility structure; and

         (d)   Small wireless facilities located within public rights-of-way or other than single-family residential (C-PR, R-2, C-l, C-2, S-l & V-C) zoning districts, subject to the standards in division (C)(1).

         (a)   Routine maintenance of existing wireless support structures and facilities, as defined in this section.

         (b)   Replacement of a small wireless facility with another small wireless facility that is substantially similar or smaller in size, weight, and height;

         (c)   Noncommercial, amateur radio station antennas;

         (d)   A government owned wireless telecommunications system erected or installed for the purpose of providing communications for public health or safety;

         (e)   A temporary wireless telecommunications system, upon the declaration of a state of emergency by federal, state, or local government, or a determination of public necessity by the town; except that such system must comply with all federal and state requirements. No such wireless telecommunications system shall be exempt from the provisions of this section beyond the duration of the state of emergency; and

         (f)   Micro wireless facilities.

      (1)   New wireless telecommunication systems, substantial modifications, and antenna element replacements.

         (a)   Any application submitted pursuant to this section shall be reviewed by town staff for completeness. If any required item fails to be submitted, the application shall be deemed incomplete. Staff shall advise an applicant in writing within 45 calendar days after submittal of an application regarding the completeness of the application. If the application is incomplete, such notice shall set forth the missing items or deficiencies in the application, which the applicant must correct and/or submit in order for the application to be deemed complete.

         (b)   The town shall issue a written decision to approve or deny an application for new wireless telecommunication system, substantial modifications to an existing system, or antenna replacements within 150 calendar days of such application being deemed complete. Failure to issue a written decision within 150 calendar days shall constitute an approval of the application.

         (a)   An eligible facilities request application is deemed complete unless the town provides notice that the application is incomplete in writing to the applicant within 45 days of submission or within some other mutually agreed time frame. Such notice shall identify the deficiencies in the application which, if cured, would make the application complete. An application is deemed complete upon re-submission if the additional materials cure the deficiencies indicated.

         (b)   The town shall issue a written decision approving an eligible facilities request application within 45 calendar days of such application being deemed complete. Failure to issue a written decision within 45 calendar days shall constitute an approval of the application.

         (a)   Where due to the complexity of the methodology or analysis required to review an application for a wireless communications system, the town may require technical review by a third party expert, the costs of which shall be borne by the applicant, to the extent permitted by G.S. § 160A-400.52(f) and G.S. § 160A-400.53(a)(3), and shall be in addition to other applicable fees.

         (b)   Based on the results of the expert review, the approving authority may require changes to the applicant's application or submittals.

         (c)   The supplemental review may address any or all of the following:

            1.   The accuracy and completeness of the application and accompanying documentation;

            2.   The applicability of analysis techniques and methodologies;

            3.   The validity of conclusions reached;

            4.   Whether the proposed wireless communications facility complies with the applicable approval criteria set forth in this section; and

            5.   Other items deemed by the town to be relevant to determining whether a proposed wireless communications system complies with the provisions of these codes.

      (1)   Communication companies are encouraged to locate telecommunication antennas on or in structures other than a tower. These structures may include church steeples, transmission line towers, utility/light poles, water towers and the like hidden in a manner so as to not be readily visible (stealth).

      (2)   Where these facilities described in division (E)(1) above are not available, co-location of facilities is encouraged.

      (3)   When a new tower is proposed to be sited, a determination of whether the location will provide a minimal level of coverage versus optimal coverage shall be taken into consideration.

      (4)   The following documentation must be submitted as part of any application for the approval of the siting of new towers:

         (a)   To determine if a better location or alternative exists, evidence must be provided that the applicant has investigated the possibilities for locating the proposed facilities on an existing tower, the use of stealth technology or location where the facilities would be permitted as an administratively approved use. The evidence shall consist of copies of letters sent to owners of all existing towers or other facilities within the applicant's designated search ring, requesting the following information:

            1.   Tower height;

            2.   Existing and planned tower users;

            3.   Suitability of the tower for co-location, including structural stability and potential for electromagnetic interference; and

            4.   A general description of the means and projected cost of shared use of the existing tower.

         (b)   A copy of all responses within 30 days from the mailing date of the letter required by division (D)(4)(a) above;

         (c)   A summary explanation of why the applicant believes the proposed facility cannot be located on an existing tower for 1 or both of the following reasons:

            1.   The structure does not meet the applicant's structural specifications or technical design requirements.

            2.   A co-location agreement cannot be obtained at a reasonable market rate and in a timely manner.

         (d)   A survey prepared by a licensed North Carolina surveyor showing the location of all existing property lines and improvements within a 1,000-foot radius of the proposed tower site and all proposed improvements including the tower, antennas, accessory structures and equipment. In addition, the survey must detail all proposed vegetation removal activities including an inventory of existing trees to be removed;

         (e)   Drawings of all proposed towers, antennas and accessory structures and equipment indicating elevations, height, colors and design;

         (f)   Documentation provided by the applicant that the proposed tower and all antennas and equipment comply with all applicable FCC regulations. In order to protect the public from unnecessary exposure to electromagnetic radiation, the tower owner shall provide documentation indicating that the power density levels do not exceed levels permitted by the FCC;

         (g)   Documentation provided by the applicant that the proposed tower, antennas and equipment meet FAA aviation and navigation requirements. All proposed improvements shall not restrict or interfere with air traffic or air travel from or to any existing or proposed airport. Any lighting shall not project onto any surrounding residential property. To the extent required by the FAA, strobes shall be used for night-time lighting. Whenever strobes are not required by the FAA, flashing beacons are the preferred type of lighting;

         (h)   A copy of the approved National Environmental Policy Act of 1969 (NEPA) compliance report for all towers, antennas, accessory structures or equipment proposed for the site if one is required;

         (i)   Documentation signed and sealed from a North Carolina licensed engineer that the proposed tower and antennas meet the structural requirements of the North Carolina Building Code and the co-location requirements of this section;

         (j)   Written indemnification of the town and proof of liability insurance or financial ability to respond to claims up to $1,000,000 in the aggregate which may arise from operation of the facility during its life at no cost to the town on a form approved by the Town Attorney;

         (k)   Evidence that the communications tower is structurally designed to support at least 1 additional telecommunication service provider, and an affidavit that the owner of the tower is willing to permit other user(s) to attach communication facilities, on a commercially reasonable basis, which do not interfere with the primary purpose of the tower. The tower owner may require that other users agree to negotiate regarding reasonable compensation to the owner from any liability that may result from the attachment. The site plan shall indicate a location for at least 1 equipment building in addition to that proposed for use by the applicant. Priority for co-location on the proposed tower shall be given to antennas that will serve a public safety need for the community;

         (l)   The proposed tower shall be designed to accommodate additional antennas equal in number to the applicant's present and future requirements;

         (m)   In addition to the other consideration of this chapter, the approving body in determining whether a tower is in harmony with the area or the effects and general compatibility of a tower with adjacent properties may consider the aesthetic effects of the tower as well as mitigating factors concerning aesthetics and may disapprove the tower on the grounds that the aesthetic effects are unacceptable. Factors relevant to the aesthetic effects are: the protection of the view in sensitive or particularly scenic areas and areas specifically designated in adopted plans such as unique natural features, scenic roadways and historic sites, the concentration of towers in the proposed area, and whether the height, design, placement or other characteristics of the proposed tower could be modified to have a less intrusive visual impact; and

         (n)   The approving body may request the applicant to conduct a balloon height test or similar tests on the proposed tower site to demonstrate the proposed height of the tower.

      (1)   Stealth antenna;

      (2)   Antenna located on existing WTS facilities, utility poles, water towers or similar utility structure;

      (3)   Antenna attached to or mounted on an existing building or structure (single or co-location provider);

      (4)   Free-standing WTS development designed and constructed with co-location capability;

      (5)   Free-standing WTS development designed and constructed for single-provider use; and

      (6)   Signage within a wireless facility is only permitted consistent with the standards outlined in § 156.130.

      (1)   Antennas and towers may be considered either principal or accessory uses. A different existing use or an existing structure on the same lot shall not preclude the installation of an antenna or tower on the lot. For purposes of determining whether the installation of a tower or antenna complies with district development regulations, including but not limited to, setback requirements, lot size and coverage requirements, and other like requirements, the dimensions of the entire lot shall control, even though the antennas or towers may be located on leased parcels within the lots. Towers that are constructed, and antennas that are installed, in accordance with the provisions of this chapter shall not be deemed to constitute the expansion of a nonconforming use or structure.

      (2)   In order to provide spatial separation and create visual block from adjacent properties and streets, a buffer shall be installed around the outside of all improvements on the site, including the tower and guy anchors, any ground buildings or equipment, and security fencing. Ground buildings located in a residential district may be located outside the buffered area if they are constructed so the exterior appearance of the building has the appearance of a residential dwelling, including pitched roof and frame or brick veneer construction. The tower's guy anchors may be screened or fenced separately in order to comply with the requirements of this division.

      (3)   The base of the tower and each guy anchor shall be surrounded by a security fence or wall at least 8 feet in height unless the tower and all guy anchors are mounted entirely on a building over 8 feet in height. The tower's guy anchors may be screened or fenced separately in order to comply with the requirements of this section.

      (4)   An equipment compound shall only be used to house equipment and other supplies in support of the operation of the wireless communications facility or support structure. Any equipment not used in direct support of such operation shall not be stored on the site.

      (5)   Accessory buildings shall not be used as an employment center for any worker. This provision does not prohibit the periodic maintenance or periodic monitoring of equipment and instruments.

      (6)   The proposed tower, antenna, or accessory structure and equipment shall be placed in a location and in a manner that will minimize the visual impact on the surrounding area.

      (7)   No commercial advertising, company logo, or signage shall be allowed on the tower or its related facilities. However, signs shall be posted that list a telephone number for the owner of the tower and "No Trespassing" information. This sign shall be located on the accessory building or fencing and shall not exceed 4 square feet in area.

      (8)   The proposed tower shall be set back from all publicly owned roads or rights-of-way a distance equal to the tower height. If visible from any public road or right-of-way, a landscape plan indicating how the applicant proposes to screen any accessory structure or equipment from view.

      (9)   Setbacks of the base of the tower from all adjacent property lines shall be 1 foot for each foot of tower height. To encourage shared use of towers, applications for towers which will operate with more than 1 user immediately upon completion may have a 10% reduction in the required setbacks, but in no case shall the setback be less than those required for the underlying zoning district. Also, to encourage the construction of monopole structures, monopole towers may have a 20% reduction in the required setbacks. To encourage location of towers in forested areas with a minimum depth of 65 feet, the tower may have a 20% reduction in the required setbacks. In no case shall the setback be less than those required for the underlying zoning district. The setback reductions shall only be allowed upon a professional engineering certification which states that the structure's construction will cause the tower to crumble inward so that in the event of collapse no damage to structures on adjacent zoning lots will result.

      (10)   The proposed tower shall be set back from all property lines a distance equal to the proposed tower's fall zone as certified by a registered North Carolina engineer, plus 20 feet.

      (11)   The proposed tower shall be set back a distance equal to the tower's height plus 50 feet from any residential structure.

      (12)   No towers shall be located in the public trust waters of the town.

      (1)   A site plan shall be submitted for any relocation or reconstruction of a non-conforming tower.

      (2)   Increases in height shall not exceed 15% of the height of the tower as it existed in 2002, and shall not equal or exceed a height that would either require a special use permit or would require the tower, if unlit, to add lights.

      (3)   Any relocation or structural change:

         (a)   Must be on the tower's current site;

         (b)   Must eliminate the need for an additional tower or provide both additional co-location opportunities and additional antenna space beyond what is provided by the current tower; and

         (c)   May not change the style of the tower, if the tower is currently a monopole.

      (4)   Any relocation must comply with current ordinance setback requirements, if physically possible, or, if compliance is not possible, the relocation must not increase the amount by which setbacks are non-conforming, other than increases necessitated solely by changes in size of the base to support the new tower. If the foregoing setback requirements cannot be met, then setbacks may only be decreased by up to 15% of the originally constructed tower height(s).

      (5)   If a non-conforming tower is damaged beyond 50% of its replacement value, a replacement tower constructed on the same site or lot may not exceed the height of the previous tower, and must comply with all requirements of the current ordinance, except the requirement for a use permit.

      (1)   The owner of the wireless telecommunication facility shall complete decommissioning of the facility within 180 days of abandonment.

      (2)   The Town Manager may grant a 1 time, 6-month extension to the above decommissioning timeframe if it is determined that a special or unique circumstance exists.

      (3)   Decommissioning shall include the removal of all towers, buildings, cabling, electrical components, roads, and other associated facilities down to 36 inches below grade.

      (4)   Disturbed earth shall be graded and re-seeded, unless the landowner requests in writing that the access roads or other land surface areas not be restored.

      (5)   Should the wireless services provider fail to timely remove the abandoned wireless facility, the town may cause such wireless facility to be removed and may recover the actual cost of such removal, including legal fees, if any, from the wireless services provider. The town may take measures, including the execution of the surety bond, to remove the facility and restore the land to the condition existing prior to installation of the structure. If the surety bond amount is insufficient for restoration of the land, the town may hold the property owner responsible for the difference in cost.

      (6)   To ensure removal of any abandoned tower, antennae, accessory structure or equipment, a non-cancellable structure removal surety bond or other security acceptable to the town shall be required, in a form subject to approval by the Town Attorney, for removal of the facility and naming the town as a beneficiary. The amount of the surety shall be calculated by an independent, North Carolina certified professional engineer immediately prior to the date it is required to be provided, at the expense of the applicant, and shall be equal to 150% of the cost of removing the facility. The surety amount shall be recalculated every 5 years thereafter using the same process, and proof of the updated bond amount shall be forwarded to the town. The surety, which shall be in the form of a single instrument, shall be provided to the town upon failure of the owner to complete the decommissioning of the facility within the time period specified above.

         (a)   Small wireless facilities shall be located such that they do not interfere with public health or safety facility, such as, but not limited to a fire hydrant, fire station, fire escape, water valve, underground vault, valve housing structure, or any other public health or safety facility. New utility poles and small wireless facilities shall not be installed directly over any water, sewer, or reuse main or service line.

         (b)   Any tree disturbing activity necessary for the installation or collocation of small wireless facilities and utility poles installed to support then shall comply with § 156.137, tree and vegetation preservation and planning.

         (c)   Small wireless facilities and utility poles or wireless support structures on which they are collocated shall not be lighted or marked by artificial means, except when small wireless facilities are collocated on a light pole or where illumination is specifically required by the Federal Aviation Administration or other federal, state, or local regulations.

         (d)   A wireless provider shall repair, at its sole cost and expense, any damages including but not limited to subsidence, cracking, erosion, collapse, weakening, or loss of lateral support to public streets, sidewalks, walks, curbs, gutters, trees, parkways, street lights, traffic signals, improvements of any kind or nature, or utility lines and systems, underground utility line and systems, or sewer or water systems and water and sewer lines that result from any activities performed in connection with the installation and/or maintenance of a wireless facility in the right-of-way. The wireless provider shall restore such areas, structures and systems to substantially the same condition in which they existed prior to the installation or maintenance that necessitated the repairs.

         (e)   Small wireless facilities shall blend in with the surrounding environment or otherwise concealed to the extent practicable.

      (3)   Application process for small wireless facilities located within public rights-of-way or zoning districts other than Single-Family Residential (RS-1 & RS-2).

         (a)   An applicant seeking to locate small wireless facilities at multiple locations in the town shall be allowed, at the applicant's discretion, to file a consolidated application for no more than 25 separate facilities and receive a permit for the collocation of all the small wireless facilities meeting the requirements of this section. The town may remove small wireless facility collocations from a consolidated application and treat separately small wireless facility collocations (i) for which incomplete information has been provided or (ii) that are denied. The town may issue a separate permit for each collocation that is approved.

         (b)   An application must include an attestation that the small wireless facilities shall be collocated on a utility pole or wireless support structure and that the small wireless facilities will be activated for use by a wireless services provider to provide service no later than one year from the permit issuance date, unless the town and the wireless provider agree to extend this period or a delay is caused by a lack of commercial power at the site.

         (c)   Within 30 days of receiving an application, the town will determine and notify the applicant whether the application is complete. If an application is incomplete, the town must specifically identify the missing information. The processing deadline is tolled from the time the town sends the notice of incompleteness to the time the applicant provides the missing information. That processing deadline also may be amended by mutual agreement of the applicant and the town.

         (d)   The permit application shall be deemed approved if the town fails to approve or deny the application within 45 days from the time the application is deemed complete or a mutually agreed upon time frame between the town and the applicant.

         (e)   The town may deny a proposed collocation of a small wireless facility or installation or modification of a utility pole only if the application:

            i.   Interferes with the safe operation of traffic control equipment;

            ii.   Interferes with sight lines or clear zones for vehicles or pedestrians;

            iii.   Interferes with compliance with the Americans with Disabilities Act or similar federal or state standards regarding pedestrian access or movement;

            iv.   Fails to comply with reasonable and nondiscriminatory spacing requirements that apply to other communications service providers and electric utilities in the right-of-way and that concern the location of ground-mounted equipment and new utility poles. Such spacing requirements shall not prevent a small wireless facility from serving any location; and

            v.   Fails to comply with the requirements and design standards outlined in this chapter and other applicable codes, including screening of ground-mounted equipment.

         (f)   The permit may specify that collocation of the small wireless facility shall commence within six months of approval and shall be activated for use no later than one year from the permit issuance date, unless the town and the wireless provider agree to extend this period or a delay is caused by a lack of commercial power at the site.

      (4)   A wireless provider may apply to the town to place, replace, or modify utility poles in public rights-of-way to support the collocation of small wireless facilities. Such application shall be accepted and processed in accordance with the provisions of division (J)(3) and other local codes governing the placement of utility poles in the public rights-of-way, including provisions or regulations that concern public safety, objective design standards for decorative utility poles or town utility poles, or reasonable and nondiscriminatory stealth and concealment requirements, including those relating to screening or landscaping, or public safety and reasonable spacing requirements. The application may be submitted in conjunction with the associated small wireless facility application.

      BASE TRANSCEIVER STATION. Equipment that provides the link between wireless communications and land-based public telephone switching networks, including radio frequency transceivers, back-up power sources, power amplifiers and signal processing hardware, typically contained in a small building or cabinet.

         (a)   Increasing the existing vertical height of the structure by the greater of:

            1.   More than 10%; or

            2.   The height of 1 additional antenna array with separation from the nearest existing antenna not to exceed 20 feet, whichever is greater.

         (b)   Except where necessary to shelter the antenna from inclement weather or to connect the antenna to the tower via cable, adding an appurtenance to the body of an antenna support structure that protrudes horizontally from the edge of an antenna support structure the greater of:

            1.   More than 20 feet; or

            2.   More than the width of the antenna support structure at the level of the appurtenance, whichever is greater.

         (c)   Increasing the square footage of the existing equipment compound by more than 2,500

square feet.

         (a)   The structure or improvements on, under, within, or adjacent to which the equipment is collocated.

         (b)   Wireline backhaul facilities.

         (c)   Coaxial or fiber-optic cable that is between wireless structures or utility poles or public utility poles or that is otherwise not immediately adjacent to or directly associated with a particular antenna.

(Ord. 04-23, passed 10-6-2004, § 27; Am. Ord. 15-10, passed 7-1-2015; Am. Ord. 17-04, passed 6-7-2017; Am. Ord. 17-13, passed 12-6-2017; Am. Ord. 21-01, passed 6-2-2021; Am. Ord. 23-10, passed 9-6-2023)

      (1)    Group development projects, consisting of 2 or more buildings devoted to a common or similar use and constructed on a single lot, may be permitted in specified districts established by this chapter; provided, that a mandatory pre-application conference is held between the Zoning Administrator and the developer prior to filing the required application for review and approval of the project by the Town Council. Review and approval shall be required for all group development projects.

      (2)    Only those uses listed as permitted and/or special uses in the applicable zoning district shall be considered for group developments.

      (3)   This language is not intended to allow any use as a group development that is not permitted by right in the applicable district.

(Ord. 04-23, passed 10-6-2004, § 29; Am. Ord. 11-07, passed 10-5-2011; Am. Ord. 21-01, passed 6-2-2021)

      (1)   “Formula business” means a type of business activity, including retail, office and restaurants and food service, which:

         (a)   Is required to maintain a standardized (substantially the same) array of services and/or merchandise, name, trademark, logo, service mark, symbol, sign, decor, architecture, building or site layout, uniform, color scheme, menus, or similar standardized feature; and

         (b)   Is substantially the same as 12 or more such establishments, regardless of ownership or location.

      (2)   Formula businesses shall not include institutional uses such as banks, post offices, churches or government facilities nor shall it include franchise or multi-branch real estate offices, utility services, or gas stations.

      (1)   A formula business establishment may be allowed only with a special use permit;

      (2)   The expansion of any existing formula business establishment shall require a special use permit or amendment of a special use permit if it already has one; and

      (3)   A formula business establishment shall fully comply with all applicable regulations of the zoning ordinance, including required commercial design guidelines, unless otherwise herein modified.

      (1)   The formula business establishment will be compatible with existing surrounding uses, and has been designed and will be operated in a non-obtrusive manner to preserve the community’s distinctive character and ambiance;

      (2)   The formula business establishment will not result in an over-concentration of formula business establishments in its immediate vicinity or the town as a whole;

      (3)   The formula business establishment will promote diversity and variety to assure a balanced mix of commercial uses available to serve both resident and visitor populations;

      (4)   The formula business establishment will contribute to a diverse and appropriate blend of businesses in the community and preserve the sea coast town ambience reflective of the history and people of the community;

      (5)   The formula business establishment will be mutually beneficial to and would enhance the economic health of surrounding uses in the district;

      (6)   The formula business establishment will contribute to an appropriate balance of business sizes in the community;

      (7)   The proposed use, together with its design and improvement, is consistent with the unique character of the town, and would preserve the distinctive visual appearance and shopping and dining experience of the town for its residents and visitors; and

      (8)   The proposed intensity of uses on the site is appropriate given the uses permitted on the site and on adjoining sites including, but not limited to the following:

         (a)   Size not to exceed 3,000 square feet of gross floor area and must be in a building that is shared with at least 1 other business that is not a formula business of any type.

         (b)   Street-facing frontage of any individual formula business shall not exceed 50 linear feet.

(Ord. 07-04, passed 2-7-2007; Am. Ord. 09-05, passed 5-6-2009; Am. Ord. 09-07, passed 8-5-2009; Am. Ord. 17-04, passed 6-7-2017; Am. Ord. 21-01, passed 6-2-2021)

         (a)   When the structure being relocated was originally constructed at-grade on a slab foundation and must be elevated using a raised floor system to comply with the town’s free and clear of obstruction requirements as specified in § 150.05 of the town’s Flood Damage Prevention chapter;

         (b)   When it is demonstrated that district height limit cannot be achieved using the modified floor system without further adjustment to the roof or other components of the structure; and

         (c)   Only the minimum height increase necessary shall be granted to accommodate the modified floor system.

         (a)   Upon application by the property owner, the town shall process the application and schedule an evidentiary public hearing by the Town Council in accordance with the procedures set forth in § 156.155 as well as the procedures set forth below;

         (b)   The Town Council may grant a special use or permit only after determining that the applicant has clearly demonstrated the following:

            1.   The requested modifications are the minimum necessary to allow for the relocation of the existing principal structure;

            2.   The applicant does not propose to increase the area of the principal structure or the number of bedrooms;

            3.   The applicant does not propose to increase size or area of the property occupied by accessory structures;

            4.   That all structures, to the extent possible, are relocated outside of the required CAMA setback;

            5.   That the principal structure is situated as far landward as possible to mitigate future damage potential; and

            6.   The requested reduction results in a development that preserves the spirit and intent of this section and will not adversely impact adjacent property or the surrounding area, will not negatively impact existing traffic flow or pedestrian and vehicular safety and will not be contrary to the objectives specified in the CAMA Comprehensive & Land Use Plan.

(Ord. 11-01, passed 2-2-2011; Am. Ord. 21-01, passed 6-2-2021)

      (1)   To preserve necessary longshore access of ocean rescue and emergency vehicles.

      (2)   To limit unsafe conditions in any publicly used portion of the beach caused by structures that have become vulnerable to repetitive damage as a result of erosion. The town finds that oceanfront structures are at far greater risk of damage when the dune system recedes landward of their location due to erosion. Without the protection afforded by the dune system, structures are subjected to direct wave run-up and storm surge conditions that increase the frequency and intensity of damage they will incur. When damaged structures are present seaward of the dune system and located on the publicly used portion of the beach, they are accessible by the public and, therefore, pose health and safety risks associated with human exposure to scattered debris and litter, sharp objects, including nails, wood, and broken glass, downed electrical service lines, damaged wastewater system components, and structures at risk of imminent collapse.

      (3)   To preserve the commonly accepted public trust rights to recreate within the dry sand beach area and ensure that public trust lands, which also include the wet sand beach and submerged lands, remain open and unobstructed.

      (4)   To protect and preserve the natural, aesthetic, and recreational resources along the oceanfront.

         (a)   The first line of stable natural vegetation; or

         (b)   The toe of slope of the primary or frontal dune.

         (a)   In no instance shall a dune walkover structure extend more than 20 feet seaward of the seaward toe of the frontal dune or dune escarpment.

         (b)   Dune walkover structures shall be constructed so that the staircase turns parallel to the dune if there is more than a 12-foot-vertical rise in the staircase required to provide access to the surface of the beach. The requirement to turn the stairs shall not apply in instances where it would preclude the placement of the stairs entirely within the subject property.

      (1)   The Zoning Administrator, or his or her designee, shall be responsible for determining when a building or structure is in violation with the provisions of this section.

      (2)   When the Zoning Administrator observes that a structure appears to be in violation of this section, the Zoning Administrator shall issue and cause to be served upon the owner of and parties in interest in the structure, a complaint stating the charges and containing a notice that an administrative hearing will be held before the Zoning Administrator at a fixed place, not less than 10 nor more than 30 days after the serving of the complaint.

      (3)   The owner or any party in interest shall have the right to file an answer to the complaint and to appear in person, or otherwise, and give testimony at the place and time fixed in the complaint.

      (4)   Any person desiring to do so may attend the hearing and give evidence relevant to the matter being heard. The rules of evidence prevailing in courts of law or equity shall not be controlling in hearings before the Zoning Administrator.

      (5)   After the notice and hearing, the Zoning Administrator shall state in writing the determination as to whether the structure violates this section.

      (6)   If the Zoning Administrator determines that the structure is in violation, the Zoning Administrator shall state in writing findings of fact to support that determination, and shall issue and cause to be served upon the owner of and parties in interest in the structure an order, directing and requiring the owner of and parties in interest in the structure to correct or abate violations of this section within a specified period of time as set forth in the order.

      (7)   In addition to the remedies prescribed by Town Code and by North Carolina law, the Director of Community Development may use any and all remedies authorized and prescribed by G.S. § 160A-175 to enforce the provisions of this section.

      (1)   No work shall be performed upon, and no development permits shall be approved or issued relating to, any building or structure in violation of this section, except as necessary to eliminate the violation(s).

      (2)   Any work required in order to demolish or remove such a building or structure from the public trust area or public land, or required to perform specific work necessary to comply with directions contained within the notice of violation, may be performed upon issuance of any permits necessary for the work.

      (1)   In the event that the town may be impacted by a severe storm event that causes significant structural damage and erosion, and also meets the conditions for declaration of a building moratorium as described in § 152.03 (B), the Town Council by declaration may temporarily halt the enforcement of this section to allow property owners and the town to initiate recovery activities that may eliminate some or all of the conditions that would otherwise be considered a violation under the provisions of this section.

      (2)   This exemption shall be re-declared every 60 days if it is the Town Council's intent to continue the exemption in effect.

(Ord. 11-04, passed 9-21-2011; Am. Ord. 13-04, passed 7-17-2013; Am. Ord. 17-05, passed 7-5-2017; Am. Ord. 21-01, passed 6-2-2021) Penalty, see § 156.999

   (B)   Beach bulldozing and beach fill. When beach bulldozing and/or beach fill is used to provide protection to a structure or to prevent its collapse, the seaward toe of the slope of the permitted beach bulldozing/fill area may be considered as the seaward toe of the frontal dune for the purposes of determining violations in accordance with this section. In no instance shall beach bulldozing or fill cause a building or structure to extend more than 20 feet beyond the adjacent first line of stable natural vegetation or static vegetation line directly north and south of the subject property.

      (1)   When such work is performed as a part of a hurricane or erosion protection project or beach nourishment project sponsored by the town or any local, state or federal government agency;

      (2)   When such work is performed at the direction of, and with authorization by, the town for the purpose of beach maintenance;

      (3)   When such work is authorized by issuance of a general exemption of this section by the Town Council following a natural disaster.

      (4)   When such work is authorized by issuance of a general exemption of this section by the Town Council in instances of documented beach or dune erosion resulting in an imminently threatened structure (as defined by CAMA).

(Ord. 17-05, passed 7-5-2017; Am. Ord. 21-01, passed 6-2-2021)

   The Town Council may, by special use permit, modify certain development standards to facilitate development that maintains and enhances the character of Duck Village.

      (1)   The Village Commercial Development Option is intended to help implement the town's adopted vision and CAMA Comprehensive & Land Use Plan by allowing development or redevelopment of a size, scale and architectural character that complements Duck Village.

      (2)   The Village Commercial Development Option provides opportunities for custom site-specific development review to implement town policies encouraging shared access and parking, limited vehicular access, bicycle and pedestrian accommodations, a mix of land uses, compatible building design, tree preservation, adequate stormwater management, and public infrastructure and amenities; thus reinforcing the Village Commercial District as an exceptional and distinctive place to live, work, shop, dine, and recreate.

      (1)   Minimum structure setbacks cannot be reduced by more than 50%.

      (2)   Maximum lot coverage may be increased by no more than 10% provided that stormwater improvements meeting the following criteria are provided on the development site:

         (a)   Stormwater runoff from the built-upon area of the site must be directed into an approved stormwater management system designed to accommodate the volume of runoff generated by a 4.3 inch design storm. Interstitial soil storage can be included in the design storm calculation.

         (b)   The stormwater management system shall be designed in accordance with the standards, methodology, and procedures prescribed in the state Stormwater Best Management Practices Manual (NCDENR BMP Manual) with the exception of the design storm which shall be 4.3 inch rainfall event over a two hour period as noted above.

         (c)   Project designs shall utilize low-impact development principles and best management practices as the primary method for the treatment of stormwater.

         (d)   Stormwater plans must be prepared by a state licensed professional engineer. Prior to the issuance of a certificate of completion for the project, a state licensed professional engineer must certify that the proposed improvements have been constructed in accordance with the project design.

      (3)   Reduction in the amount of required parking for the site is limited to a maximum of five parking spaces or 20% of the minimum parking requirement for the site, whichever is greater. Additionally, the amount of reduction cannot exceed 50% of the minimum parking requirement.

      (4)   Landscape buffers against abutting residentially zoned or used properties cannot be reduced to less than five feet in width unless an opaque fence or wall is provided.

      (5)   Building size or height increases are not permitted.

      (6)   Proposed uses must be included on the list of permitted uses for the Village Commercial (V-C) zoning district.

      (7)   The requested modification cannot be used to remedy existing violations on a property.

      (1)   The development proposal is consistent with the town's adopted vision and Comprehensive & Land Use Plan; and

      (2)   The development proposal is consistent with the desired scale, character, and function of Duck Village; and

      (3)   The subject property, including the development proposal, contains many of the characteristics outlined in the guidelines listed in § 156.065(E); and

      (4)   The requested modification is the least necessary to accommodate the proposed development and meet the intent of the Village Commercial Development Option; and

      (5)   The requested modification will not negatively impact adjacent properties or the surrounding area.

         (a)   New construction or expansion of structures not exceeding 1,000 square feet or 10% of the existing structures on the property, whichever is lesser; or

         (b)   Site development or improvements not exceeding a footprint of 1,000 square feet or 5% of the lot size, whichever is lesser.

      (1)   Building locations, building heights, number of dwelling units, proposed uses and gross square footage of all uses;

      (2)   Total area of the application property;

      (3)   Proposed setbacks from all property lines;

      (4)   Proposed methods and layout of landscaping and screening;

      (5)   Proposed methods of ingress, egress and internal circulation;

      (6)   Topographic contours and conceptual grading plan;

      (7)   Proposed improvements to adjacent rights-of-way;

      (8)   Proposed layout of parking area showing individual parking spaces and landscaping;

      (9)   Proposed on-site pedestrian walkways and other pedestrian/bicycle accommodations;

      (10)   Calculations for proposed lot coverage and required parking;

      (11)   Proposed development schedule outlining the phases of development, if applicable;

      (12)   Locations of existing and proposed easements and property lines;

      (13)   Location and description of any structure proposed to be moved or demolished;

      (14)   Conceptual architectural elevations depicting the proposed architectural design, materials, and dimensions of all elevations; and

      (15)   Other information deemed necessary for the Town Council to understand the details and design of the proposed project.

      (1)   The Town Council may impose conditions as part of the approval of any Village Commercial Development Option application as deemed necessary in the public. Surety in a form acceptable to the Town Attorney may be required to ensure compliance with conditions imposed by the Town Council.

      (2)   Approval of the site plan accompanying the application for the Village Commercial Development Option will also constitute approval of the proposed development as to scale, heights, setbacks, parking, required public improvements, and other development standards specifically addressed.

      (3)   The Director of Community Development may permit minor deviations from the footprints of structures and improvements on the approved site plan, provided that the proposed deviations are in substantial accord with the conceptual development plan, will not result in increased square footage of development, and will not result in increased height of any structure.

      (4)   Unless otherwise granted during the approval process, a village commercial development option designation will expire 18 months following the date of approval by the Town Council unless construction of the proposed development has commenced. The Director of Community Development may grant a single 12-month extension provided that the applicant adequately demonstrates due diligence toward initiation of the development.

(Ord. 19-04, passed 12-4-2019; Am. Ord. 21-01, passed 6-2-2021)