The purpose of this Chapter is to set forth the powers and duties of the Administrator, Board of Adjustment, Planning Board, Town Board of Commissioners, and the Historic Preservation Commission as they relate to this Ordinance. This Chapter also establishes the penalties for violation of the UDO.

(Ord. of 6-20-16(2); Ord. No. FCUDO-2021-05, att., 10-4-21)

15.2.1 Appointment of Administrator.

(A)

The Town Manager shall appoint a Unified Development Ordinance Administrator to enforce the provisions of this Ordinance. The assistance of such other persons may be provided as the Town Manager directs.

(B)

Throughout this Ordinance, the Administrator may be referred to as "Administrator," "Subdivision Administrator," "Floodplain Administrator," or "Planning Director."

15.2.2 Duties of Administrator.

(A)

The various provisions of this Unified Development Ordinance shall be administered by the Administrator and designated staff. It shall be the duty of the Administrator to carry out and enforce this Ordinance, remedy violations of this Ordinance, follow the development approval processes of this Ordinance and issue permits in compliance with this Ordinance.

(B)

The Administrator shall maintain a record of all Zoning Permits, development approvals, Special Use Permits, Variances, Text Amendments, Map Amendments (rezonings) on file at his office, and copies shall be made available on request to interested parties.

(C)

The Administrator shall issue Zoning Permits and Certificates of Zoning Compliance as prescribed herein.

(D)

The Administrator shall maintain in paper and/or digital format the official Zoning Map and any state or federal maps incorporated by reference into the Zoning Map, in accordance with NCGS 160D-105.

(E)

The Administrator shall serve as clerk to the Board of Adjustment and Planning Board.

(F)

If the Administrator finds that any of the provisions of this Ordinance are being violated, he or she shall follow the procedures set forth in Section 15.7.

(G)

The Administrator shall make determinations regarding the development regulations of this Ordinance. The Administrator shall give written notice to the owner of the property that is the subject of the determination and to the party who sought the determination, if different from the owner. The written notice shall be delivered by personal delivery, electronic mail, or by first-class mail. The notice shall be delivered to the last address listed for the owner of the affected property on the county tax abstract and to the address provided in the application or request for a determination if the party seeking the determination is different from the owner.

(H)

In accordance with NCGS 160D-109(c), no staff member shall make a final decision on an administrative decision required by this Chapter if the outcome of that decision would have a direct, substantial, and readily identifiable financial impact on the staff member or if the applicant or other person subject to that decision is a person with whom the staff member has a close familial, business, or other associational relationship.

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

15.3.1 Establishment.

A Board of Planning and Adjustment is hereby established. Said Board shall consist of nine (9) members. Six (6) members shall be residents of the Town and shall be appointed by the Town Board of Commissioners and members, who shall be residents of the Extraterritorial Jurisdiction (ETJ), shall be appointed by the Rutherford County Board of Commissioners upon recommendation by the Town Board of Commissioners. All members shall serve terms of three (3) years, except for the initial appointments where three (3) members shall be appointed for one (1) year term, three (3) members shall be appointed for two (2) year terms and one (1) members shall be appointed for a three (3) year term. Vacancies shall be filled for the unexpired portions of the terms in the same manner as the initial appointment. The term for each appointed member shall begin on the effective date of the adoption of this Ordinance. Members may be appointed for any number of successive terms. All members shall vote on all matters except as otherwise provided for in this Chapter.

15.3.2 Election of Officers.

The Board shall meet within 30 days after appointment and elect a Chairman and Vice-Chairman and create and fill such offices, as it may deem necessary. The term of the offices of Chairman and Vice-Chairman shall be one (1) year, with eligibility for re-election. The Board may adopt rules of procedure not in conflict with this and any other town ordinances or policies. The Board shall keep a record of its member's attendance and of its actions, which record shall be a public record. Such records shall be submitted to the Town Manager and shall be on file at the Town offices for public inspection.

15.3.3 Attendance.

Regular attendance and interest shall be considered prerequisites of membership on the Board of Planning and Adjustment. Failure to attend three (3) consecutive meetings or four (4) meetings in any 12 month period shall be considered as a resignation from the Board unless the Board determines by majority vote that good and sufficient reason has been given for the member's absence.

15.3.4 Duties.

The Board of Planning and Adjustment is created to carry out the powers and duties of the Planning Agency as provided for in NCGS 160D-301 and the Board of Adjustment as provided for in NCGS 160D-302 and to carry out the powers and duties of the Planning Board and the Board of Adjustment as provided for the this Ordinance and any other Ordinances or policies of the Town. In carrying out its function as a Board of Adjustment, the Board of Planning and Adjustment shall be bound by its rules of procedure and Section 15.4. In carrying out its function as a Planning Board, the Board of Planning and Adjustment shall be bound by its rules of procedure and by Section 15.5.

15.3.5 Oath of Office.

Members of the Board of Planning and Adjustment, exercising duties as the Board of Adjustment and Planning Board, shall take an oath of office as set forth in NCGS 160D-309 and 160A-61.

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

15.4.1 Board of Adjustment Composition.

When acting as a Board of Adjustment the Board shall consist of five (5) regular members and four (4) alternate members. The Chairman and Vice-Chairman of the Board of Planning and Adjustment shall serve as regular members of the Board of Adjustment and serve as Chairman and Vice-Chairman respectively, of the Board of Adjustment. The Chairman shall appoint three (3) additional members from the remaining members of the Board of Planning and Adjustment to serve as regular members and the remaining four (4) members shall serve as alternate members. At all times, however, at least two (2) ETJ members shall serve as regular members of the Board of Adjustment.

15.4.2 Rules of Conduct.

Members of the Board may be removed by the Board of Commissioners for cause, including violation of the rules stated below:

(A)

In accordance with NCGS 160D-109(d), a member of any board exercising quasi-judicial functions pursuant to this Chapter shall not participate in or vote on any quasi-judicial matter in a manner that would violate affected persons' constitutional rights to an impartial decision maker. Impermissible violations of due process include, but are not limited to, a member having a fixed opinion prior to hearing the matter that is not susceptible to change, undisclosed ex parte communications, a close familial, business, or other associational relationship with an affected person, or a financial interest in the outcome of the matter.

(B)

No Board member shall discuss any case with any parties thereto prior to the public hearing on that case; provided, however, that members may receive and/or seek hearing on that case from the Administrator or any other member of the Board, its secretary or clerk prior to the hearing.

(C)

Members of the Board shall not express individual opinions on the proper judgment of any case prior to its determination on that case.

15.4.3 Proceedings of the Board of Adjustment.

(A)

Pursuant to NCGS 160D-308, the Board shall adopt rules of procedure in accordance with the provisions of this Ordinance and of, Chapter 160D of the General Statutes of North Carolina. Meetings of the Board shall be held at the call of the Chairman and at such other times as the Board may determine. The Chairman, or in his absence, the Vice-Chairman, may administer oaths and compel the attendance of witnesses by subpoena. All meetings of the Board shall be open to the public and minutes shall be kept of the proceedings.

(B)

The Chairman of the Board of Adjustment, or in his absence the Vice-Chairman, may appoint alternates to sit for any regular members in case of the absence or disqualification of any regular members. In such case the alternate members shall have the same powers and duties of the regular members they are replacing during such time. In no case, however, shall more than five (5) regular members or combination of regular members and the alternate members be empowered to make motions or to vote on any matter that comes before the Board involving this Ordinance.

(C)

The concurring vote of four-fifths (4/5) of the members of the Board shall be necessary to grant a variance. A majority of the members shall be required to decide any other quasi-judicial matter or to determine an appeal made in the nature of certiorari. For the purposes of this subsection, vacant positions on the Board and members who are disqualified from voting on a quasi-judicial matter shall not be considered members of the Board for calculation of the requisite majority if there are no qualified alternates to take the place of such members.

(D)

In other Board business, such as procedural and by-law matters, a simple majority of those present and voting shall be required to pass on any matter. A quorum of four (4) of the total seven (7) regular members or alternate members shall be required to act on general Board business whereas a quorum of four (4) of the five (5) regular members, or any combination of four (4) regular members or alternate members sitting as regular members, shall be required to act on any matter involving this Ordinance.

(E)

Although alternate members who are not replacing a regular member on a particular Ordinance matter are not empowered to make motions and vote on such matters, such alternate members in attendance, and who are not otherwise disqualified, may fully participate in the discussion of such matters to the same extent as any other member sitting as one (1) of the five (5) regular voting members.

(F)

Board of Adjustment members 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. If an objection is raised to a member's participation and that member does not recuse himself or herself, the remaining members shall by majority vote rule on the objection.

15.4.4 Powers and Duties of the Board of Adjustment.

The Board of Adjustment shall have the following powers and duties, pursuant to NCGS 160D-302 and subject to quasi-judicial procedures set forth in NCGS 160D-405, 160D-406, and 160D-705:

(A)

Appeals. The Board of Adjustment shall hear and decide appeals from decisions of administrative officials charged with enforcement of this Ordinance and may hear appeals arising out of any other ordinance that regulates land use or development, pursuant to NCGS 160D-405 as outlined below:

(1)

Standing.

Any person who has standing under NCGS 160D-1402(c) or the Town may appeal an administrative decision to the board. An appeal is taken by filing a notice of appeal with the Town clerk or such other Town official as designated by ordinance. The notice of appeal shall state the grounds for the appeal.

(2)

Time to Appeal.

The owner or other party has thirty (30) days from receipt of the written notice of the determination within which to file an appeal. Any other person with standing to appeal has thirty (30) days from receipt from any source of actual or constructive notice of the determination within which to file an appeal. In the absence of evidence to the contrary, notice given pursuant to NCGS 160D-403(b) by first-class mail is deemed received on the third business day following deposit of the notice for mailing with the United States Postal Service.

(3)

Record of Decision.

The official who made the decision shall transmit to the board all documents and exhibits constituting the record upon which the decision appealed from is taken. The official shall also provide a copy of the record to the appellant and to the owner of the property that is the subject of the appeal if the appellant is not the owner.

(4)

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 during the pendency of the appeal to the board of adjustment and any subsequent appeal in accordance with NCGS 160D-1402 or during the pendency of any civil proceeding authorized by law or appeals therefrom, unless the official who made the decision certifies to the board after notice of appeal has been filed that, because of the facts stated in an affidavit, a stay would cause imminent peril to life or property or, because the violation is transitory in nature, a stay would seriously interfere with enforcement of the development regulation. In that case, enforcement proceedings are not stayed except by a restraining order, which may be granted by a court. If enforcement proceedings are not stayed, the appellant may file with the official a request for an expedited hearing of the appeal, and the board shall meet to hear the appeal within fifteen (15) days after the request is filed. Notwithstanding any other provision of this section, appeals of decisions granting a development approval or otherwise affirming that a proposed use of property is consistent with the development regulation does not stay the further review of an application for development approvals to use the property; in these situations, the appellant or Town may request and the board may grant a stay of a final decision of development approval applications, including building permits affected by the issue being appealed.

(5)

Alternative Dispute Resolution.

The parties to an appeal that has been made under this section may agree to mediation or other forms of alternative dispute resolution. The development regulation may set standards and procedures to facilitate and manage such voluntary alternative dispute resolution.

(6)

No Estoppel.

NCGS 160D-1403.2, limiting a Town's use of the defense of estoppel, applies to proceedings under this section.

(B)

Variances.

(1)

When unnecessary hardships would result from carrying out the strict letter of a zoning ordinance, the Board of Adjustment shall vary any of the provisions of the ordinance upon a showing of all of the following, in accordance with NCGS 160D-705(d):

(a)

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

(b)

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

(c)

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

(d)

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

(2)

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 ordinance that regulates land use or development may provide for variances consistent with the provisions of this subsection.

(C)

Special Use Permits.

Subject to NCGS 160D-705(c), upon application, the Board of Adjustment may grant in particular cases and subject to the appropriate conditions and safeguards, permits for special uses as authorized by this Ordinance and set forth as special uses in the Permitted Uses Table in Chapter 3. A Special Use Permit may be granted by the Board of Adjustment in accordance with the requirements of Section 11.4.

(D)

Alternative Design Plans.

Alternative design plans may be approved by the Board of Adjustment as set forth in Section 5.5.

(E)

Certificate of Nonconformity Adjustment. A Certificate of Nonconformity Adjustment may be granted by the Board of Adjustment in accordance with the requirements of Section 13.11.

15.4.5 Hearing Process.

(A)

Notice of Hearing.

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

(B)

Administrative Materials.

The Administrator shall transmit to the Board all applications, reports and written materials relevant to the matter being considered. The administrative materials may be distributed to the members of the Board prior to the hearing if at the same time they are distributed to the board a copy is also provided to the appellant or applicant and to the landowner if that person is not the appellant or applicant. The administrative materials shall become a part of the hearing record. The administrative materials may be provided in written or electronic form. Objections to inclusion or exclusion of administrative materials may be made before or during the hearing. Rulings on unresolved objections shall be made by the Board at the hearing.

(C)

Presentation of Evidence.

The applicant, the Town, and any person who would have standing to appeal the decision under NCGS 160D-1402(c) shall have the right to participate as a party at the evidentiary hearing. Other witnesses may present competent, material, and substantial evidence that is not repetitive as allowed by the Board. Objections regarding jurisdictional and evidentiary issues, including, but not limited to, the timeliness of an appeal or the standing of a party, may be made to the board. The board chair shall rule on any objections, and the chair's rulings may be appealed to the full board. These rulings are also subject to judicial review pursuant to G.S. 160D-1402. Objections based on jurisdictional issues may be raised for the first time on judicial review.

(D)

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 of Adjustment, willfully swears falsely is guilty of a Class 1 misdemeanor.

(E)

Subpoenas.

The Board of Adjustment 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, persons with standing under NCGS 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 appealed to the full Board of Adjustment. If a person fails or refuses to obey a subpoena issued pursuant to this subsection, the Board of Adjustment or the party seeking the subpoena may apply to the General Court of Justice for an order requiring that its subpoena be obeyed, and the court shall have jurisdiction to issue these orders after notice to all proper parties.

(F)

Appeals in the Nature of Certiorari.

When hearing an appeal pursuant to G.S. 160D-947(e) or any other appeal in the nature of certiorari, the hearing shall be based on the record below, and the scope of review shall be as provided in G.S. 160D-1402(j).

(G)

Voting.

The concurring vote of four-fifths (4/5) of the Board shall be necessary to grant a Variance. A majority of the members shall be required to decide any other quasi-judicial matter or to determine an appeal made in the nature of certiorari. For the purposes of this subsection, vacant positions on the board and members who are disqualified from voting on a quasi-judicial matter under G.S. 160D-109(d) shall not be considered members of the board for calculation of the requisite majority if there are no qualified alternates available to take the place of such members.

(H)

Decisions.

The Board shall determine contested facts and make its decision within a reasonable time. When hearing an appeal, the board may reverse or affirm, wholly or partly, or may modify the decision appealed from and shall make any order, requirement, decision, or determination that ought to be made. The board shall have all the powers of the official who made the decision. Every quasi-judicial decision shall be based upon competent, material, and substantial evidence in the record. Each quasi-judicial decision shall be reduced to writing and reflect the Board's determination of contested facts and their application to the applicable standards. The written decision shall be signed by the chair or other duly authorized member of the Board. A quasi-judicial decision is effective upon filing the written decision with the clerk to the Board or such other office or official as the ordinance specifies. The decision of the Board shall be delivered by personal delivery, electronic mail, or by first-class mail to the applicant, property owner, and to any person who has submitted a written request for a copy, prior to the date the decision becomes effective. The person required to provide notice shall certify that proper notice has been made.

(I)

Judicial Review.

Every quasi-judicial decision shall be subject to review by the superior court by proceedings in the nature of certiorari pursuant to NCGS 160D-947(e). Appeals shall be filed within the times specified in NCGS 160D-1405(d).

15.4.6 Application Fees.

The Town Board of Commissioners shall set a fee, payable to the Town of Forest City, North Carolina, to cover the necessary administrative costs and advertising of each application for the proceeding. The set fee shall be posted in the Town Clerk's office.

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

15.5.1 Planning Board Composition.

When acting as a Planning Board, five (5) of the nine (9) members of the Board of Planning and Adjustment shall constitute a quorum and a simple majority of those voting shall be required to act favorably on any matter that comes before the Planning Board.

15.5.2 Power and Duties of the Planning Board.

(A)

The Planning Board shall serve in an advisory capacity to the Town Board and shall provide recommendations to the board including recommendations pertaining to zoning amendments and other matters as designated in NCGS 160D-301 including:

(1)

To prepare, review, maintain, monitor, and periodically update and recommend to the governing board a Comprehensive Plan, and such other plans as deemed appropriate, and conduct ongoing related research, data collection, mapping and analysis;

(2)

To facilitate and coordinate citizen engagement and participation in the planning process;

(3)

To develop and recommend to the Town Board of Commissioners policies, ordinances, development regulations, administrative procedures and other means for carrying out plans in a coordinated and efficient manner;

(4)

To advise the Town Board of Commissioners concerning the use and amendment of means for implementation of plans;

(5)

To exercise such functions in the administration and enforcement of various means for carrying out plans as may be assigned by this article or other ordinances of the Town; and

(6)

To perform other related duties as may be assigned by this article or other ordinances.

15.5.3 Proceedings of the Planning Board.

(A)

Pursuant to NCGS 160D-308, the Board shall adopt rules of procedure in accordance with the provisions of this Ordinance and of Chapter 160D of the General Statutes of North Carolina. Meetings of the Board shall be held at the call of the Chairman and at such other times as the Board may determine. The Chairman, or in his absence, the Vice-Chairman, may administer oaths and compel the attendance of witnesses by subpoena. All meetings of the Board shall be open to the public and minutes shall be kept of the proceedings.

(B)

In accordance with NCGS 160D-109(b), members of the Planning Board shall not vote on any advisory or legislative decision regarding a development regulation adopted pursuant to this Chapter where the outcome of the matter being considered is reasonably likely to have a direct, substantial, and readily identifiable financial impact on the member. An appointed board member shall not vote on any zoning amendment if the landowner of the property subject to a rezoning petition or the applicant for a text amendment is a person with whom the member has a close familial, business, or other associational relationship.

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

15.6.1 Commission Composition.

(A)

The Commission shall consist of nine (9) members to be appointed from time to time by the Town Board of Commissioners. The Town Board may choose to appoint the Board of Planning and Adjustment to also serve as the Historic Preservation Commission.

15.6.2 Powers and Duties.

The Commission may, within the planning and development regulation jurisdiction of the local government, do any of the following:

(A)

Undertake an inventory of properties of historical, prehistorical, architectural, and/or cultural significance.

(B)

Recommend to the governing board areas to be designated by ordinance as "Historic Districts" and individual structures, buildings, sites, areas, or objects to be designated by ordinance as "Landmarks," subject to NCGS 160D-944 and 160D-945.

(C)

Acquire by any lawful means the fee or any lesser included interest, including options to purchase, to properties within established districts or to any such properties designated as landmarks to hold, manage, preserve, restore, and improve such properties, and to exchange or dispose of the property by public or private sale, lease or otherwise, subject to covenants or other legally binding restrictions that will secure appropriate rights of public access and promote the preservation of the property.

(D)

Restore, preserve, and operate historic properties.

(E)

Recommend to the governing board that designation of any area as a historic district or part thereof, or designation of any building, structure, site, area, or object as a landmark, be revoked or removed for cause.

(F)

Conduct an educational program regarding historic properties and districts within its jurisdiction.

(G)

Cooperate with the State, federal, and local governments in pursuance of the purposes of this Part. The governing board or the commission, when authorized by the governing board, may contract with the State, or the United States of America, or any agency of either, or with any other organization provided the terms are not inconsistent with State or federal law.

(H)

Enter, solely in performance of its official duties and only at reasonable times, upon private lands for examination or survey thereof. However, no member, employee, or agent of the commission may enter any private building or structure without the express consent of the owner or occupant thereof.

(I)

Prepare and recommend the official adoption of a preservation element as part of the local government's comprehensive plan.

(J)

Review and act upon proposals for Certificates of Appropriateness for alterations, demolitions, or new construction within historic districts, or for the alteration or demolition of designated landmarks, in accordance with NCGS 160D-947.

(K)

Negotiate at any time with the owner of a building, structure, site, area, or object for its acquisition or its preservation, when such action is reasonably necessary or appropriate.

15.6.3 Proceedings of the Cultural Resources and Historic Preservation Commission.

(A)

The commission shall adopt rules of procedure for the conduct of business.

(B)

The commission shall establish a meeting time, and shall meet at least annually and more often as it shall determine and require. All meetings of the Commission shall be open to the public and reasonable notice of the time and place thereof shall be given to the public. All meetings shall conform to the North Carolina Open Meetings Law, NCGS 143-33B.

(C)

Any member of the Commission who misses more then three (3) consecutive regular meetings or more than half the regular meetings in a calendar year shall lose his status as a member of the Commission and shall be replaced or reappointed by the board of commissioners. Absence due to sickness, out of town business, or other emergencies of like nature shall be recognized as approved absences and shall not affect the member's status on the commission.

(D)

As a part of its deliberations and review procedure, the Commission may seek the advice of the State Department of Cultural Resources or such other expert advice as it may deem necessary under the circumstances.

(E)

The Administrator shall serve as staff support for the Commission.

(F)

In accordance with NCGS 160D-109(b), members of the Cultural Resources and Historic Preservation Commission shall not vote on any advisory or legislative decision regarding a development regulation adopted pursuant to this Chapter where the outcome of the matter being considered is reasonably likely to have a direct, substantial, and readily identifiable financial impact on the member. An appointed board member shall not vote on any zoning amendment if the landowner of the property subject to a rezoning petition or the applicant for a text amendment is a person with whom the member has a close familial, business, or other associational relationship.

15.6.4 Certificates of Appropriateness.

(A)

Exterior Features.

(1)

After the designation of a landmark or a historic district, no exterior portion of any building or other structure, including masonry walls, fences, light fixtures, steps and pavement, or other appurtenant features, nor above-ground utility structure nor any type of outdoor advertising sign shall be erected, altered, restored, moved, or demolished on the landmark or within the district until after an application for a certificate of appropriateness as to exterior features has been submitted to and approved by the preservation commission. The local government shall require such a certificate to be issued by the commission prior to the issuance of a building permit granted for the purposes of constructing, altering, moving, or demolishing structures, which certificate may be issued subject to reasonable conditions necessary to carry out the purposes of this Part. A certificate of appropriateness is required whether or not a building or other permit is required.

(2)

For purposes of this Part, "exterior features" include the architectural style, general design, and general arrangement of the exterior of a building or other structure, including the kind and texture of the building material, the size and scale of the building, and the type and style of all windows, doors, light fixtures, signs, and other appurtenant fixtures. In the case of outdoor advertising signs, "exterior features" mean the style, material, size, and location of all such signs. Such "exterior features" may, in the discretion of the local governing board, include historic signs, color, and significant landscape, archaeological, and natural features of the area.

(3)

The Commission shall take no action under this section except to prevent the construction, reconstruction, alteration, restoration, moving, or demolition of buildings, structures, appurtenant fixtures, outdoor advertising signs, or other significant features in the district that would be incongruous with the special character of the landmark or district.

(4)

Nothing in this Ordinance shall be construed to prevent the ordinary maintenance or repair of any exterior architectural feature in a historic district or of a landmark that does not involve a change in design, material, or appearance thereof, nor to prevent the construction, reconstruction, alteration, restoration, moving, or demolition of any such feature which the building inspector or similar official shall certify is required by the public safety because of an unsafe or dangerous condition. Nothing in this Ordinance shall be construed to prevent a property owner from making any use of his or her property that is not prohibited by other law. Nothing in this Ordinance shall be construed to prevent the maintenance or, in the event of an emergency, the immediate restoration of any existing above-ground utility structure without approval by the Commission.

(B)

Interior Features.

Jurisdiction of the Commission over interior spaces is limited to specific interior features of architectural, artistic, or historical significance in publicly owned landmarks and of privately owned historic landmarks for which consent for interior review has been given by the owner. The consent of an owner for interior review binds future owners and/or successors in if the consent has been filed in the office of the register of deeds of the county in which the property is located and indexed according to the name of the owner of the property in the grantee and grantor indexes. The landmark designation shall specify the interior features to be reviewed and the specific nature of the Commission's jurisdiction over the interior.

(C)

Design Standards.

The Town of Forest City hereby adopts the "Secretary of Interior's Standards for Rehabilitation" as the principles to guide the commission in determining congruity with the special character of the landmark or district for new construction, alterations, additions, moving, and demolition.

(D)

Procedures.

(1)

Commission decisions on Certificates of Appropriateness are quasi-judicial and shall follow the procedures of NCGS 160D-406.

(2)

All applications for certificates of appropriateness shall be reviewed and acted upon within a reasonable time, not to exceed one hundred eighty (180) days from the date the application for a certificate of appropriateness is filed, as defined by the regulation or the Commission's rules of procedure. As part of its review procedure, the Commission may view the premises and seek the advice of the Division of Archives and History or such other expert advice as it may deem necessary under the circumstances.

15.6.5 Appeals.

(A)

All decisions of the Commission in granting or denying a certificate of appropriateness may, be appealed to the Town Board of Commissioners, acting as a Board of Adjustment in the nature of certiorari within times prescribed for appeals of administrative decisions in NCGS 160D-405(d). To the extent applicable, the provisions of NCGS 160D-1402 apply to appeals in the nature of certiorari to the Town Board of Commissioners, acting as a Board of Adjustment.

(B)

Appeals from the Town Board of Commissioners acting as a Board of Adjustment may be made pursuant to NCGS 160D-1402.

(C)

If the regulation does not provide for an appeal to the board of adjustment, appeals of decisions on certificates of appropriateness may be made to the superior court as provided in NCGS 160D-1402.

(D)

Petitions for judicial review shall be taken within times prescribed for appeal of quasi-judicial decisions in NCGS 160D-1405. Appeals in any such case shall be heard by the superior court of the county in which the local government is located.

(Ord. No. FCUDO-2021-05, att., 10-4-21)

Editor's note— Ord. No FCUDO-2021-05, att., adopted Oct. 4, 2021, renumbered the former § 15.6 as § 15.7 and enacted a new § 15.6 as set out herein. The historical notation has been retained with the amended provisions for reference purposes.

15.7.1 Powers and Duties.

The Town Board of Commissioners shall hold the following powers and duties related to this Ordinance:

(A)

To review, hold public hearings and make decisions for Text Amendments and Map Amendments (Standard and Conditional Zoning requests).

(B)

To make decisions on all issues related to the Unified Development Ordinance, Zoning Map, Comprehensive Land Use Plan and other land use plans which may be adopted from time to time.

(C)

To review and approve Preliminary Plats for Major Subdivisions.

(D)

To act as the Board of Adjustment on appeals from administrative decisions by the Planning Board of alternate design plans set forth in Section 5.5.

(E)

To designate, by Ordinance, Historic Landmarks and Historic Districts in accordance with the standards and procedures set forth in NCGS 160D-944, 160D-945, and 160D-946.

(F)

The duties of the Town Board in connection with this Ordinance shall not include the hearing and passing upon of disputed questions that may arise in connection with the enforcement thereof, but the procedure for determining such questions shall be as prescribed in this Ordinance.

15.7.2 Conflict of Interest.

In accordance with NCGS 160D-109(a), a governing board member shall not vote on any 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 governing board member shall not vote on any zoning amendment if the landowner of the property subject to a rezoning petition or the applicant for a text amendment is a person with whom the member has a close familial, business, or other associational relationship.

(Ord. of 6-20-16(2); Ord. No. FCUDO-2021-03, att., 6-21-21; Ord. No. FCUDO-2021-05, att., 10-4-21)

Editor's note— Ord. No FCUDO-2021-05, att., adopted Oct. 4, 2021, renumbered the former §§ 15.6 and 15.7 as §§ 15.7 and 15.8, respectively, as set out herein. The historical notation has been retained with the amended provisions for reference purposes. See also editor's notes at §§ 15.6 and 15.8.

15.8.1 Violations.

Any of the following shall be a violation of this Ordinance and shall be subject to the enforcement remedies and penalties provided by this Section and by State law.

(A)

Development Without Permit. To engage in any development, use, construction, remodeling, or other activity of any nature upon land or improvements thereon subject to the jurisdiction of this Ordinance without all required permits, certificates, or other forms of authorization as set forth in this Ordinance.

(B)

Development Inconsistent With Permit. To engage in any development, use, construction, remodeling, or other activity of any nature in any way inconsistent with any approved plan, permit, certificate, or other form or authorization granted for such activity.

(C)

Violation by Act or Omission. To violate, by act or omission, any term, variance, modification, condition, or qualification placed by the Town Board or its agent boards upon any required permit, certificate, or other form of authorization for the use, development, or other activity upon land or improvements thereon.

(D)

Use in Violation. To erect, construct, reconstruct, alter, repair, convert, maintain, or use any building or structure or to use any land in violation or contravention of this Ordinance or any other regulation made under the authority conferred thereby.

(E)

Continue a Violation. Each day's continuance of any of the above violations is a separate and distinct offense.

15.8.2 Inspection and Investigation.

Administrative staff may inspect work undertaken pursuant to a development approval to assure that the work is being done in accordance with applicable State and local laws and of the terms of the approval. In exercising this power, staff are authorized to enter any premises within the jurisdiction of the Town at all reasonable hours for the purposes of inspection or other enforcement action, upon presentation of proper credentials; provided, however, that the appropriate consent has been given for inspection of areas not open to the public or that an appropriate inspection warrant has been secured.

15.8.3 Enforcement Procedure.

(A)

Notice of Violation.

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

The notice shall include the following information:

(1)

That the land, building, structure, sign, or use is in violation of this Ordinance;

(2)

The nature of the violation and citation of the Section(s) of this Ordinance violated; and

(3)

The measures necessary to remedy the violation.

(4)

The time period to correct the violation and penalties that may be incurred as set forth in Section 15.8.5 and 15.8.6.

(B)

Appeal. Any owner or occupant who has received a Notice of Violation may appeal in writing the decision of the Administrator to the Board of Adjustment within thirty (30) days following the date of the Notice of Violation, in accordance with NCGS 160D-405 and Section 15.4 of this Ordinance. In the absence of an appeal, the decision of the Administrator shall be final.

15.8.4 Failure to Comply with Notice.

If the owner or occupant of a property fails to comply with a Notice of Violation from which no appeal has been taken, or a final decision by the Board of Adjustment following an appeal, the owner or occupant shall be subject to the penalties and remedies as set forth in Section 15.8.5 or to such remedies and penalties as may be provided by the State law.

15.8.5 Remedies.

Subject to the provisions of the development regulation, any development regulation adopted pursuant to authority conferred by NCGS Chapter 160D may be enforced by any remedy provided by NCGS 160A-175. If a building or structure is erected, constructed, reconstructed, altered, repaired, converted, or maintained, or any building, structure, or land is used or developed in violation of this Chapter or of any development regulation or other regulation made under authority of this Chapter, the Town, in addition to other remedies, may institute any appropriate action or proceedings to prevent the unlawful erection, construction, reconstruction, alteration, repair, conversion, maintenance, use, or development; to restrain, correct or abate the violation; to prevent occupancy of the building, structure, or land; or to prevent any illegal act, conduct, business, or use in or about the premises. Any or all of the following procedures may be used to enforce the provisions of this Ordinance.

(A)

Injunction and Order of Abatement.

The Ordinance may be enforced by injunction and order of abatement, and the General Court of Justice shall have jurisdiction to issue such orders. When a violation of such an ordinance occurs the Town may apply to the appropriate division of the General Court of Justice for a mandatory or prohibitory injunction and order of abatement commanding the defendant to correct the unlawful condition upon or cease the unlawful use of the property. The action shall be governed in all respects by the laws and rules governing civil proceedings, including the Rules of Civil Procedure in general and Rule 65 in particular. In addition to an injunction, the court may enter an order of abatement as a part of the judgment in the cause. An order of abatement may direct that buildings or other structures on the property be closed, demolished, or removed; that fixtures, furniture, or other movable property be removed from buildings on the property; that grass and weeds be cut; that improvements or repairs be made; or that any other action be taken that is necessary to bring the property into compliance with the ordinance. If the defendant fails or refuses to comply with an injunction or with an order of abatement within the time allowed by the court, he or she may be cited for contempt, and the Town may execute the order of abatement. The Town shall have a lien on the property for the cost of executing an order of abatement in the nature of a mechanic's and materialman's lien. The defendant may secure cancellation of an order of abatement by paying all costs of the proceedings and posting a bond for compliance with the order. The bond shall be given with sureties approved by the Clerk of Superior Court in an amount approved by the judge before whom the matter is heard and shall be conditioned on the defendant's full compliance with the terms of the order of abatement within a time fixed by the judge. Cancellation of an order of abatement shall not suspend or cancel an injunction issued in conjunction therewith.

(B)

Criminal and Civil Penalties.

Any person who violates any provision of this Ordinance shall be subject to the assessment of a civil penalty under the procedures provided in Section 15.8.6.

(C)

Equitable Remedy.

The Ordinance may be enforced by an appropriate equitable remedy issuing from a court of competent jurisdiction. In such case, the General Court of Justice shall have jurisdiction to issue such orders as may be appropriate, and it shall not be a defense to the application of the city for equitable relief that there is an adequate remedy at law.

(D)

Stop Work Orders.

Whenever any work or activity subject to regulation pursuant to this Chapter or other applicable local development regulation or any State law delegated to the Town for enforcement purposes in lieu of the State is undertaken in substantial violation of any State or local law, or in a manner that endangers life or property, staff may order the specific part of the work or activity that is in violation or presents such a hazard to be immediately stopped. The order shall be in writing, directed to the person doing the work or activity, and shall state the specific work or activity to be stopped, the reasons therefor, 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 owner of the property involved (if that person is not the holder of the development approval) by personal delivery, electronic delivery, or first-class mail. The person or persons delivering the stop work order shall certify to the Town that the order was delivered and that certificate shall be deemed conclusive in the absence of fraud. Except as provided by G.S. 160D-1112 and G.S. 160D-1208, a stop work order may be appealed pursuant to G.S. 160D-405. No further work or activity shall take place in violation of a stop work order pending a ruling on the appeal. Violation of a stop work order shall constitute a Class 1 misdemeanor.

(E)

Revocation of Development Approval.

Development approvals may be revoked by the Town by notifying the holder in writing stating the reason for the revocation. The Town shall follow the same development review and approval process required for issuance of the development approval, including any required notice or hearing, in the review and approval of any revocation of that approval. 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 applicable local development regulation or any State law delegated to the Town for enforcement purposes in lieu of the State; 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 also be revoked. The revocation of a development approval by a staff member may be appealed pursuant to NCGS 160D-405. If an appeal is filed regarding a development regulation adopted by a Town pursuant to this Chapter, the provisions of NCGS 160D-405(e) regarding stays apply.

(F)

Cumulative Remedies.

The provisions of this Ordinance may be enforced by one (1), all or a combination of the remedies authorized and prescribed by this section.

15.8.6 Penalty.

(A)

Violations of this Ordinance shall constitute either a misdemeanor as provided by NCGS 14-4, or, at the election of the Town, shall subject the offender to a civil penalty upon the issuance of a citation for said violations as hereinafter provided. The civil penalty, if not paid to the Town within fifteen (15) days of the issuance of a citation, may be recovered by the Town in a civil action in the nature of debt. Said civil penalties shall be in the amounts shown below for each violation and each day any single violation continues shall be a separate violation.

(B)

Where the Administration determines that the period of time stated in the original warning citation is not sufficient for abatement based upon the work required or Consent Agreement, the Administrator may amend the warning citation to provide additional time. The warning citation shall specify that a second citation shall incur civil penalty, together with costs and attorney fees.

(Ord. of 6-20-16(2); Ord. No. FCUDO-2021-03, att., 6-21-21; Ord. No. FCUDO-2021-05, att., 10-4-21)

Editor's note— Ord. No. FCUDO-2021-03, att., adopted June 21, 2021, amended § 15.7 and in doing so changed the title of said section from "Violations and Remedies" to "Enforcement," as set out herein.

Editor's note— Ord. No FCUDO-2021-05, att., adopted Oct. 4, 2021, renumbered the former § 15.7 as § 15.8. The historical notation has been retained with the amended provisions for reference purposes. See also editor's note at § 15.7.