This Ordinance shall be known and may be cited as the Unified Development Ordinance of the Town of Forest City, North Carolina and shall be known as the UDO. The official map designating the various zoning districts shall be titled, Town of Forest City Zoning Map and shall be known as the Zoning Map.

(Ord. of 6-20-16(2))

The zoning regulations and districts as herein set forth have been with reasonable consideration, among other things to the character of each Zoning District and its peculiar suitability for particular uses, and with a view to conserving the value of buildings and encouraging the most appropriate use of land throughout the Town and have been made in accordance with the Comprehensive Land Use Plan and for the purpose of:

(A)

Promoting the public health, safety, morals and general welfare;

(B)

Promoting the orderly growth and development of the Town of Forest City;

(C)

Lessening congestion in the street and roads;

(D)

Providing adequate light and air;

(E)

Securing safety from fire, panic and other dangers;

(F)

Preventing the overcrowding of land;

(G)

Avoiding undue congestion of population; and

(H)

Facilitating the adequate provision of transportation, water, sewerage, schools, parks and other public requirements.

(Ord. of 6-20-16(2))

This Ordinance is enacted pursuant to the authority conferred by Chapter 160D of the North Carolina General Statutes.

(Ord. of 6-20-16(2); Ord. No. FCUDO-2021-03, att., 6-21-21)

1.4.1 Jurisdiction.

For the purpose of this Ordinance, the zoning jurisdiction of the Town of Forest City shall include the land within the corporate limits of the Town and that land located between those limits and the boundaries established in the municipal ordinance establishing extraterritorial jurisdiction boundaries, now or hereafter fixed.

1.4.2 Exemptions to Applicability.

(A)

Subject to NCGS 160D-108 and Section 1.7 the regulations of this Ordinance shall not apply to any land or structure for which, prior to the effective date hereof, there is a properly approved site specific plan as required by the requirements previously adopted.

(B)

As set forth in NCGS 160D-903, bona fide farms are not affected by these regulations but any use of farm property for non-farm purposes is subject to these regulations.

1.4.3 Minimum Regulations.

Regulations set forth by this Ordinance shall be minimum regulations. If the requirements set forth in this Ordinance are at variance with the requirements of any other lawfully adopted rules, regulations or ordinance, the more restrictive or higher standards shall govern.

1.4.4 Incorporation of Zoning Map.

The Official Zoning Map, Forest City, North Carolina and all notations, references and other information shown on the map are hereby incorporated and made a part of this Ordinance.

(Ord. of 6-20-16(2); Ord. No. FCUDO-2021-03, att., 6-21-21)

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

(Ord. of 6-20-16(2))

(A)

In accordance with NCGS 160D-501, the regulations adopted pursuant to this Ordinance shall be consistent with the Comprehensive Land Use Plan and any specific plans adopted by the Board of Commissioners. All new developments shall be designed in conformance with adopted plans including, but not limited to, adopted comprehensive plans, comprehensive transportation plans, small area plans, land use plans, parks and recreation plans and any other adopted plans.

(B)

When a proposed development includes any part of a thoroughfare which has been designated as such upon the officially adopted Comprehensive Transportation Plan, such thoroughfare right(s)-of-way shall be dedicated and constructed by the developer(s) as shown on the plan. Where such right-of way does not currently exist, the developer shall be required to dedicate the necessary right-of-way on the development side of the street.

(Ord. of 6-20-16(2); Ord. No. FCUDO-2021-03, att., 6-21-21)

1.7.1 Permit Choice.

If a regulation of this Ordinance is amended between the time a development permit application was submitted and a development permit decision is made or if a land development regulation is amended after a development permit decision has been challenged and found to be wrongfully denied or illegal, NCGS 143-755 applies.

1.7.2 Vested Rights.

(A)

Amendments to this Ordinance are not applicable or enforceable without the written consent of the owner with regard to any of the following:

(1)

Buildings or uses of buildings or land for which a development permit application has been submitted and subsequently issued in accordance with NCGS 143-755.

(2)

Subdivisions of land for which a development permit application authorizing the subdivision has been submitted and subsequently issued in accordance with NCGS 143-755.

(3)

A site-specific vesting plan pursuant to NCGS 160D-108.1.

(4)

A multi-phased development pursuant to Section 1.7.5.

(5)

A vested right established by the terms of a development agreement authorized by Article 10 of NCGS Chapter 160D.

(B)

The establishment of a vested right under any subdivision of this subsection does not preclude vesting under one (1) or more other subdivisions of this subsection or vesting by application of common law principles. A vested right, once established as provided for in this section or by common law, precludes any action by a Town that would change, alter, impair, prevent, diminish, or otherwise delay the development or use of the property allowed by the applicable land development regulation or regulations, except where a change in State or federal law mandating Town enforcement occurs after the development application is submitted that has a fundamental and retroactive effect on the development or use.

1.7.3 Duration of Vesting.

(A)

Upon issuance of a development permit, the statutory vesting granted by Section 1.7.2 for a development project is effective upon filing of the application in accordance with NCGS 143-755, for so long as the permit remains valid pursuant to law. Unless otherwise specified by this section or other statute, local development permits expire one (1) year after issuance unless work authorized by the permit has substantially commenced. This Ordinance may provide for a longer permit expiration period for certain development types. For the purposes of this section, a permit is issued either in the ordinary course of business of the applicable governmental agency or by the applicable governmental agency as a court directive.

(B)

Except where a longer vesting period is provided by statute or land development regulation, the statutory vesting granted by this section, once established, expires for an uncompleted development project if development work is intentionally and voluntarily discontinued for a period of not less than twenty-four (24) consecutive months, and the statutory vesting period granted by this section for a nonconforming use of property expires if the use is intentionally and voluntarily discontinued for a period of not less than twenty-four (24) consecutive months. The twenty-four-month discontinuance period is automatically tolled during the pendency of any board of adjustment proceeding or civil action in a State or federal trial or appellate court regarding the validity of a development permit, the use of the property, or the existence of the statutory vesting period granted by this section. The twenty-four-month discontinuance period is also tolled during the pendency of any litigation involving the development project or property that is the subject of the vesting.

1.7.4 Multiple Permits for Development Project.

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

1.7.5 Multi-Phased Development.

(A)

A multi-phased development is vested for the entire development with the land development regulations then in place at the time a site plan approval is granted for the initial phase of the multi-phased development. A right which has been vested as provided for in this subsection remains vested for a period of seven (7) years from the time a site plan approval is granted for the initial phase of the multi-phased development.

(B)

A multi-phased development contains twenty-five (25) acres or more that is submitted for development permit approval to occur in more than one (1) phase and subject to a master development plan with committed elements showing the type and intensity of use of each phase.

1.7.6 Continuing Review.

Following issuance of a development permit, a Town may make subsequent inspections and reviews to ensure compliance with the applicable land development regulations in effect at the time of the original application.

1.7.7 Process to Claim Vested Right.

A person claiming a statutory or common law vested right may submit information to substantiate that claim to the zoning administrator or other officer designated by a land development regulation, who shall make an initial determination as to the existence of the vested right. The decision of the zoning administrator or officer may be appealed under NCGS 160D-405. On appeal, the existence of a vested right shall be reviewed de novo. In lieu of seeking such a determination or pursuing an appeal under NCGS 160D-405, a person claiming a vested right may bring an original civil action as provided by NCGS 160D-1403.1.

1.7.8 Site-Specific Vesting Plan.

(A)

A site-specific vesting plan consists of a plan submitted to a Town in which the applicant requests vesting pursuant to this section, describing with reasonable certainty on the plan the type and intensity of use for a specific parcel or parcels of property. The plan may be in the form of, but not be limited to, any of the following plans or approvals: a planned unit development plan, a subdivision plat, a preliminary or general development plan, a special use permit, a conditional district zoning plan, or any other land-use approval designation as may be utilized by a Town.

(B)

Unless otherwise expressly provided by the Town, the plan shall include the approximate boundaries of the site; significant topographical and other natural features affecting development of the site; the approximate location on the site of the proposed buildings, structures, and other improvements; the approximate dimensions, including height, of the proposed buildings and other structures; and the approximate location of all existing and proposed infrastructure on the site, including water, sewer, roads, and pedestrian walkways.

(C)

What constitutes a site-specific vesting plan under this section that would trigger a vested right shall be finally determined by the Town pursuant to a development regulation, and the document that triggers the vesting shall be so identified at the time of its approval.

(D)

A variance does not constitute a site-specific vesting plan, and approval of a site-specific vesting plan with the condition that a variance be obtained does not confer a vested right unless and until the necessary variance is obtained. If a sketch plan or other document fails to describe with reasonable certainty the type and intensity of use for a specified parcel or parcels of property, it may not constitute a site-specific vesting plan.

1.7.9 Established of Vested Right.

A vested right is established with respect to any property upon the valid approval, or conditional approval, of a site-specific vesting plan as provided in this section. Such a vested right confers upon the landowner the right to undertake and complete the development and use of the property under the terms and conditions of the site-specific vesting plan, including any amendments thereto.

1.7.10 Approval, Amendment, and Continuing Review of Site-Specific Vesting Plans.

(A)

If a site-specific vesting plan is based on an approval required by a local development regulation, the Town shall provide whatever notice and hearing is required for that underlying approval. A duration of the underlying approval that is less than two (2) years does not affect the duration of the site-specific vesting plan established under this section. If the site-specific vesting plan is not based on such an approval, a legislative hearing with notice as required by NCGS 160D-602 shall be held.

(B)

A Town may approve a site-specific vesting plan upon any terms and conditions that may reasonably be necessary to protect the public health, safety, and welfare. Conditional approval results in a vested right, although failure to abide by the terms and conditions of the approval will result in a forfeiture of vested rights. A Town shall not require a landowner to waive the landowner's vested rights as a condition of developmental approval. A site-specific vesting plan is deemed approved upon the effective date of the Town's decision approving the plan or another date determined by the governing board upon approval. An approved site-specific vesting plan and its conditions may be amended with the approval of the owner and the Town as follows: any substantial modification must be reviewed and approved in the same manner as the original approval; minor modifications may be approved by staff, if such are defined and authorized by local regulation.

(C)

Following approval or conditional approval of a site-specific vesting plan, a Town may make subsequent reviews and require subsequent approvals by the Town to ensure compliance with the terms and conditions of the original approval, provided that these reviews and approvals are not inconsistent with the original approval. The Town may, pursuant to G.S. 160D-403(f), revoke the original approval for failure to comply with applicable terms and conditions of the original approval or the applicable local development regulations.

1.7.11 Duration and Termination of Vested Right for Site-Specific Vesting Plans.

(A)

A vested right for a site-specific vesting plan remains vested for a period of two (2) years. This vesting shall not be extended by any amendments or modifications to a site-specific vesting plan unless expressly provided by the Town.

(B)

Notwithstanding the provisions of Subsection (A), the Town may provide for rights to be vested for a period exceeding two (2) years but not exceeding five (5) years where warranted in light of all relevant circumstances, including, but not limited to, the size and phasing of development, the level of investment, the need for the development, economic cycles, and market conditions or other considerations. These determinations are in the sound discretion of the Town and shall be made following the process specified for the particular form of a site-specific vesting plan involved in accordance with subsection (a) of this section.

(C)

Upon issuance of a building permit, the provisions of NCGS 160D-1111 and NCGS 160D-1115 apply, except that a permit does not expire and shall not be revoked because of the running of time while a vested right under this section is outstanding.

(D)

A right vested as provided in this section terminates at the end of the applicable vesting period with respect to buildings and uses for which no valid building permit applications have been filed.

1.7.12 Subsequent Changes Prohibited; Exceptions.

(A)

A vested right, once established as provided for in this section, precludes any zoning action by a Town which would change, alter, impair, prevent, diminish, or otherwise delay the development or use of the property as set forth in an approved site-specific vesting plan, except under one (1) or more of the following conditions:

(1)

With the written consent of the affected landowner.

(2)

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

(3)

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

(4)

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

(5)

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

(B)

The establishment of a vested right under this section does not preclude the application of overlay zoning or other development regulations which impose additional requirements but do not affect the allowable type or intensity of use, or ordinances or regulations which are general in nature and are applicable to all property subject to development regulation by a Town, including, but not limited to, building, fire, plumbing, electrical, and mechanical codes. Otherwise applicable new regulations become effective with respect to property which is subject to a site-specific vesting plan upon the expiration or termination of the vesting rights period provided for in this section.

(C)

Notwithstanding any provision of this section, the establishment of a vested right does not preclude, change, or impair the authority of a Town to adopt and enforce development regulations governing nonconforming situations or uses.

1.7.13 Miscellaneous Provisions.

The vested rights granted by this section run with the land except for the use of land for outdoor advertising governed by NCGS 136-131.1 and NCGS 136-131.2 in which case the rights granted by this section run with the owner of a permit issued by the North Carolina Department of Transportation. Nothing in this section precludes judicial determination, based on common law principles or other statutory provisions, that a vested right exists in a particular case or that a compensable taking has occurred. Except as expressly provided in this section, nothing in this section shall be construed to alter the existing common law.

(Ord. of 6-20-16(2); Ord. No. FCUDO-2021-03, att., 6-21-21)

Editor's note— Ord. No. FCUDO-2021-03, att., adopted June 21, 2021, amended § 1.7 and in doing so changed the title of said section from "Vested Rights" to "Permit Choice and Vested Rights," as set out herein.

If any section, subsection, sentence, clause, or phrase of this Ordinance is for any reason held to be invalid by the courts, such decision shall not affect the validity of the remaining portions of this Ordinance. The Board of Commissioners hereby declares that it has passed this Ordinance and each section, subsection, clause and phrase thereof, irrespective of the fact that any one (1) or more sections, subsections, sentences, clauses, or phrases be declared invalid.

(Ord. of 6-20-16(2))

These regulations shall become effective on July 1, 2013, and each date subsequently amended. Upon such date, these regulations shall supersede, repeal and replace the Town of Forest City Zoning Ordinance and Subdivision Ordinance.

(Ord. of 6-20-16(2); Ord. No. FCUDO-2021-03, att., 6-21-21)