It is the intent of this article to provide the process by which proposed development is reviewed and the standards by which it is to be evaluated. All development shall require prior authorization from the appropriate person or entity. This article establishes three levels of review: (1) zoning compliance review for small projects is set forth in section 7-2; (2) site plan review for larger projects is set forth in section 7-3; and (3) conditional zoning district review, which is designed for development expected to have the greatest impacts, is set forth in section 7-4. The remaining sections of article VII contain requirements which apply to one or more of the levels of review.

Except as otherwise specifically provided in this article, it shall be unlawful to undertake any development until the city manager has issued for such development a zoning compliance permit certifying that it complies with the applicable provisions of this ordinance.

It shall also be unlawful to change the type of use or type of occupancy of any land or structure until the city manager has issued for such intended use a zoning compliance permit certifying that it complies with the applicable provisions of this ordinance.

When a building permit or sign permit is required, such permit shall not be issued prior to issuance of the zoning compliance permit required for the development, and such building or sign permit shall comply with the approved zoning compliance permit, including all conditions of approval attached thereto.

No building or structure for which a zoning compliance permit has been issued shall be used or occupied until, after final inspection, a certificate of occupancy has been issued indicating compliance with the provisions of this ordinance and all other state and local laws, including conditions of the zoning compliance permit.

The city manager may delegate the authority to issue zoning compliance permits to the planning director or zoning administrator or both.

Some development, due to its type or magnitude, requires thorough review of development plans in order to assure compliance with the provisions of this ordinance. Site plan review and approval in accordance with this section is required prior to issuance of a zoning compliance permit for any development or use described in section 7-2, with the following exceptions:

a)

Development of a single- or two-family dwelling on a zoning lot, or any uses accessory thereto;

b)

Any commercial, industrial, or institutional development consisting of less than 5,000 square feet of floor area;

c)

Addition of not more than 15 percent of previously existing parking spaces, or ten parking spaces, whichever is greater;

d)

Any sign;

e)

Any development undergoing rezoning to a conditional zoning district pursuant to section 7-4, below; and

f)

Major or minor subdivisions.

There are two types of site plan review, preliminary and final, as described below. All applications for site plan approval shall be made to the community development director or a designee on forms prescribed by the community development director. Applications shall include, without limitation, the name and address of the applicant, the name and address of the owner of all the property involved, the relationship of the applicant and property owner(s) in connection with the application, and a site plan conforming to the specifications of subsection 7-3-3 for a preliminary site plan and subsection 7-3-4 for a final site plan. If the applicant is other than the record owner of the property, the consent of the record owner to the application shall be noted on the application or in some other fashion acceptable to the community development director. The application shall also designate an agent for the project to whom notice may be given by the city. The community development director shall prescribe any other material that may reasonably be required to determine compliance with this article and shall require sufficient copies for necessary referrals and records.

A fee shall be paid to the City of Hendersonville for each application for site plan approval to cover the costs of advertising and other administrative expenses. Such fee shall be set by a resolution of city council.

Review of preliminary site plans applies to larger projects where the costs of developing detailed final plans can be substantial. It is designed to provide the applicant an opportunity to obtain at a reasonable cost binding authorization to develop property in a certain fashion. Review of preliminary plans is a function of the planning board. Preliminary plan review is required of all development undergoing site plan review except for the following:

a)

Any commercial, industrial or institutional development consisting of less than 20,000 square feet of floor area;

b)

Addition of not more than 30 parking spaces;

c)

Any development which has already received preliminary site plan approval;

d)

Any minor planned residential development consisting of less than nine dwelling units.

For development projects under a) above, notice of receipt of a development application for commercial or industrial development between 10,000 square feet to less than 20,000 square feet of floor area shall be provided in the following manner. The city shall prominently post a notice of receipt of a development application on the site or on an adjacent public street or highway right-of-way. The notice shall be a minimum of 18 inches by 24 inches in size and shall identify the means to contact an official for information about the development application. The notice shall be posted within ten days of receipt of a development application and remain on the site or on an adjacent public street or highway right-of-way for a minimum of 30 days.

Approval of a preliminary site plan by the planning board does not entitle the applicant to develop property, but it does entitle the applicant to final site plan approval pursuant to subsection 7-3-4, below, upon submittal of an application for final site plan approval, payment of the applicable fee and submittal of a final site plan conforming to the preliminary site plan approval, including any conditions attached thereto.

7-3-3.1 Processing of applications for preliminary site plan approval. The community development director or a designee shall conduct a preliminary review of an application to determine if it is complete, which is to say, all information requested on the application has been provided and the site plan contains all items required by section 7-3-3.2. If the community development director or a designee determines that an application is incomplete, the community development director or a designee shall notify the applicant in writing of all deficiencies. A complete application and site plan must be in the possession of the community development director or a designee at least 32 days prior to a planning board meeting in order to be scheduled for that meeting.

Once the development assistant director or a designee determines the application to be complete, the community development director or a designee shall cause an analysis to be made by qualified representatives of the city and such other agencies or officials as appear appropriate in the circumstances of the case, to determine compliance with applicable provisions of this ordinance. Notice of the completeness determination shall be provided to the applicant(s) as required by chapter 40 of the Code of Ordinances for the City of Hendersonville. The community development director or a designee shall then submit to the planning board a report of their analysis.

Substantial modification of the site plan subsequent to the community development director's determination of completeness may result in the application being deferred to a subsequent meeting of the planning board. Any material modification of the site plan within seven days of the planning board meeting shall result in deferral of the application to the next available meeting.

The city manager may waive these time lines in extraordinary circumstances where strict enforcement would work a substantial hardship on the applicant and where the city's ability to make an informed decision on the application would not be compromised.

7-3-3.2 Contents of preliminary site plan. Applicants for developments required to undergo preliminary site plan review shall, as a part of the application for such development, submit a preliminary site plan which shall show the following:

a)

The date of the site plan or submittal, including any revisions thereto;

b)

The proposed title of the project and the name of the engineer, architect, landscape architect, planner and/or licensed surveyor; developer; and owner of record;

c)

The north arrow point, scale at not greater than one inch equals 40 feet and such information as the names of adjacent roads, streams, railroads, subdivisions or other landmarks sufficient to clearly identify the location of the property;

d)

Location of site by an insert vicinity map at a scale no less than one inch equals 2,000 feet;

e)

Existing project zoning and zoning of adjacent property, to include properties abutting either side of a public right-of-way;

f)

City limits line or a note indicating that the project site and any adjoining parcels are totally within or without the city limits;

g)

Names of adjacent property owners;

h)

Boundary survey of site and the location of all existing easements, buildings, rights-of-way or other encroachments;

i)

Location of 100-year floodplain and floodway, if applicable. Other significant natural features affecting the site including but not limited to wetlands, major rock outcrops and lakes or streams;

j)

All proposed streets with proposed names, pavement widths and rights-of-way and showing sight distances for all entrances and exits and their relationship to street and driveway intersections within a 200-foot radius of the intersection such entrance and exit with any public right-of-way. All alleys, driveways, curb cuts for public streets and handicap ramps, loading areas and provisions for off-street parking spaces and sidewalks; calculations indicating the number of parking spaces required and the number provided. All streets shall be clearly identified as public or private; a typical cross-section of the public or private street shall be included;

k)

Preliminary utility layout, including location and size of existing and proposed water, sanitary and storm sewer lines;

l)

Location and size of all existing and proposed entrances and exits to the site. All proposed entrance and exit points, regardless of the classification of the roadway facility the entrance and exit points connect to, shall follow the North Carolina Department of Transportation's most current Policy on Street and Driveway Access to NC Highways;

m)

Proposed reservations or dedications for parks, playgrounds, school sites and open spaces and a note indicating ownership and maintenance provisions;

n)

A plan showing tree line before site preparation, identifying existing tree canopy, tree canopy proposed to be preserved, and new canopy installation areas, identifying the acreage of each, as well as areas to be screened, fenced, walled and/or landscaped;

o)

General location and intended use of all buildings with their dimensions, the number of floors, total floor area and maximum height above lowest ground point of each building;

p)

Notations to include the total project area, proposed lot areas (or individual areas owned by a homeowners association), the amount and percentage of the site to be covered by buildings, open space, streets and parking and other facilities;

q)

General location, size, height, orientation and appearance of proposed signs;

r)

General location of proposed project phasing lines and notation including special conditions pertinent to establishing sales or model units, if applicable;

s)

A transportation impact analysis, if one is required by the terms of section 6-19, above, demonstrating the project will comply with the requirements of section 7-11, below.

t)

Proposed limits of land disturbing activity.

The development assistant director or a designee has the authority to waive any application requirement where the type of use or scale of proposal makes providing that information unnecessary or impractical. The community development director or a designee, planning board or city council may require additional information from the applicant where such is necessary to enable a fully informed decision on the matter.

If the project is to be completed in phases, items a), b), and c), above, may be submitted in phases as well.

7-3-3.3 Planning board action. Action on an application for preliminary site plan approval shall be taken by the planning board only after consideration at a regular or special meeting. Notice of the date, time and place of the meeting at which the matter is to be considered shall be published once in a newspaper of general circulation not less than five nor more than 15 days prior to the date of the hearing. Similar notice shall also be mailed to the owner of the property which is the subject of the application and the owners of all parcels of land adjacent thereto. Ownership shall be determined by reference to the Henderson County tax listing. If the community development director or a designee deems that a proposed project is likely to have significant impacts on additional neighboring properties, may mail notice to the owners of such neighboring properties.

7-3-3.4 Standards for review. An application for preliminary site plan approval shall not be approved unless the planning board determines that the application and final site plan demonstrate compliance with this ordinance, including the provisions of section 7-11 below, and other applicable regulations. The planning board may impose such reasonable conditions on an approval as will ensure such compliance with this ordinance.

7-3-3.5 Reserved.

7-3-3.6 Effect of preliminary site plan approval. Approval of a preliminary site plan shall entitle the applicant to the issuance of a zoning compliance permit upon submittal of an application and final site plans meeting the requirements of section 7-3-4, below. Approval of a preliminary site plan shall constitute a site specific vested right pursuant to chapter 40 of the City Code. The applicant shall have two years from the date of such approval to obtain final site plan approval. An applicant who has been granted preliminary site plan approval shall be divested of the right to develop in accordance with such preliminary site plan approval if the applicant fails to obtain final site plan approval in accordance with this section.

All development for which site plan approval is required shall undergo final site plan review, including development which has received preliminary site plan approval pursuant to subsection 7-3-3, above.

Final site plan review is required of smaller projects and projects which have already undergone preliminary or conceptual plan review as a final step prior to issuance of a zoning compliance permit. The process is intended to provide a means for city staff to review detailed plans to ensure the project meets development standards in the zoning ordinance as well as any conditions which may have been imposed as a part of any preliminary or conceptual approval.

7-3-4.1 Processing of applications for final site plan approval. The community development director or a designee shall conduct a preliminary review of an application to determine if it is contains all items required by section 7-3-4.3. If the community development director or a designee determines that an application is incomplete, the community development director or designee shall notify the applicant in writing of all deficiencies. Once the community development director or designee determines the application to be complete, notice of the completeness determination shall be provided to the applicant(s) as required by chapter 40 of the Code of Ordinances for the City of Hendersonville. The community development director or designee shall cause an analysis to be made of the completed application by qualified representatives of the city and such other agencies or officials as appear appropriate in the circumstances of the case, to determine compliance with applicable provisions of this ordinance. The community development director or designee shall then submit to the city manager, or a designee appointed by the city manager, a report of their analysis.

7-3-4.2 Standards for review. The city manager, or a designee appointed by the city manager, shall render a decision in writing either approving or denying the application. An application for site plan approval shall not be approved unless the city manager, or a designee appointed by the city manager, determines that the application and site plan demonstrate compliance with this ordinance, including the provisions of section 7-11, below, and other applicable regulations. If the decision is to deny the application, the city manager, or a designee appointed by the city manager, shall recite with specificity the reasons for such denial.

7-3-4.3 Contents of final site plan. A site plan showing the following shall accompany an application for site plan approval:

a)

The date of the site plan or submittal, including any revisions thereto;

b)

The proposed title of the project and the name of the engineer, architect, landscape architect, planner and/or licensed surveyor; developer; and owner of record;

c)

The north arrow point, scale at not greater than one inch equals 40 feet and such information as the names of adjacent roads, streams, railroads, subdivisions or other landmarks sufficient to clearly identify the location of the property;

d)

Location of site by an insert vicinity map at a scale no less than one inch equals 2,000 feet;

e)

Existing project zoning and zoning of adjacent property, to include properties abutting either side of a public right-of-way;

f)

City limits line or a note indicating that the project site and any adjoining parcels are totally within or without the city limits;

g)

Names of adjacent property owners;

h)

Boundary survey of site and the location of all existing easements, buildings, rights-of-way or other encroachments;

i)

Existing topography and proposed finished contours at not more than two-foot intervals, with project bench mark clearly identified. Location of 100-year floodplain and floodway, if applicable. Other significant natural features affecting the site including but not limited to wetlands, major rock outcrops and lakes or streams. The community development director or a designee may require topography at intervals smaller than two feet if such is necessary to permit an informed analysis of the site plan;

j)

All proposed streets and/or driveways with proposed names, pavement widths and rights-of-way, and showing sight distances and their relationship to all street and driveway intersections within a 200-foot radius of the intersection of such entrances and exits with any public road. All alleys, driveways, curb cuts for public streets and handicap ramps, loading areas and provisions for off-street parking spaces and sidewalks; calculations indicating the number of parking spaces required and the number provided. All streets shall be clearly identified as public or private; a typical cross-section of public or private streets and/or driveways shall be included;

k)

Utility layout, including location and size of existing and proposed water, sanitary and storm sewer lines, electrical transmission lines, gas pipelines, street lights, fire hydrants, and garbage disposal facilities;

l)

Proposed reservations or dedications for parks, playgrounds, school sites and open spaces and a note indicating ownership and maintenance provisions. Include a copy of condominium declaration and/or maintenance agreements, if applicable;

m)

A landscape plan showing wood line before site preparation with typical species and average diameter of trees indicated and showing areas to be screened, fenced, walled and/ or landscaped, including required buffers, existing and proposed, with details of fences or walls and plant locations, sizes and species;

n)

Proposed location and intended use of all buildings with their dimensions, the number of floors, total floor area and maximum height above average grade for each building;

o)

Notations to include the total project area, proposed lot areas (or individual areas owned by a homeowners association), the amount and percentage of the site to be covered by buildings, open space, streets and parking and other facilities;

p)

General location, size, height, orientation and appearance of proposed signs;

q)

General location of proposed project phasing lines and notation including special conditions pertinent to establishing sales or model units, if applicable;

r)

Site lighting plan conforming with the standards established in section 6-19. Such plan shall include proposed fixture list including type, orientation, location, height, shielding and rating of fixtures, footcandle map, property lines and stream buffers at a minimum.

s)

Road profiles, if required by the community development director;

t)

A letter from the Henderson County Erosion Control Local Program indicating that plans have been filed and approved. In those instances when a letter from the Henderson County Erosion Control Local Program is not required, the applicant shall demonstrate on the site plan and/or in such accompanying documents as may be necessary that the proposed development will comply with the mandatory standards contained in G.S. 113A-57;

u)

Any other permits required by the project;

v)

Final stormwater management plan meeting the requirements of the City of Hendersonville Code of Ordinances;

w)

A plan showing tree line before site preparation, identifying existing tree canopy, tree canopy proposed to be preserved, and new canopy installation areas, identifying the acreage of each, as well as areas to be screened, fenced, walled and/or landscaped.

x)

Proposed limits of land disturbing activity.

The community development director may establish additional requirements for site plans where necessary for compliance with the terms of this ordinance or any other land development regulation, including but not limited to standards governing density, topography, location, and anticipated traffic volumes on or near the site. In addition, if the community development director determines that one or more of the above submittal requirements is not applicable to the proposed project, it may be waived.

(Ord. No. 23-05, 2-8-2023; Ord. No. O-24-08, § 2, 4-4-24)

Conditional zoning districts are created for the purpose of providing an optional rezoning choice where the owner of property proposes to rezone property and, in order to, among other reasons carry out the purposes of the comprehensive plan, proposes to impose special limitations and conditions on the use of the property proposed for rezoning.

Conditional zoning districts are zoning districts in which the development and use of the property is subject to predetermined standards and the rules, regulations and conditions imposed as part of the legislative decision creating the district and applying it to each individual development project. For the R-40, R-20, R-15, R-10, R-6, C-1, C-2, C-3, C-4, I-1, MIC, CMU, RCT, GHMU, HMU, and CHMU zoning district classifications, there are hereby established parallel conditional zoning district classifications zoned R-40CZD, R-20CZD, R-15CZD, R-10CZD, R-6CZD, C-1CZD, C-2CZD, C-2CZD, C-3CZD, C-4CZD, I-1CZD, MICCZD, CMUCZD, RCTCZD, GHMUCZD, HMUCZD and CHMUCZD. Also established are the PMDCZD, PRDCZD, PMHCZD, UVCZD and URCZD.

Certain types of zoning districts would be inappropriate at certain locations in the absence of special conditions. Some land uses are of a nature or scale that may have significant impacts on both the immediately surrounding area and the entire community, which cannot be controlled by district standards. There also circumstances in which district designations allow a use by right that would not be appropriate for a particular property though the use could, if properly planned, be appropriate for the property consistent with the objectives of these regulations, the adopted comprehensive plan, and adopted district. The review process established in this section provided for the accommodation of such uses by a reclassification of property into a conditional zoning district, subject to specific conditions, which ensure compatibility of the use with the neighboring properties.

The conditional zoning district is a means by which such special conditions can be imposed. The conditional zoning district classification will be considered for rezoning only with the consent of all of the property owners. If, for any reason, any condition imposes pursuant to these regulations is found to be illegal or invalid or if all of the applicants should fail to accept any condition, it is the intent of this ordinance that the authorization of such conditional zoning district shall be null and void and of no effect and that proceedings shall be instituted to rezone the property to its previous zoning classification.

A fee shall be paid to the City of Hendersonville for each application for a rezoning to a conditional zoning district to cover the costs of advertising and other administrative expenses. The fee shall be set by a resolution or ordinance of city council.

It is recommended that any person desiring to rezone a property to a conditional zoning district schedule a pre-application conference with the community development director or designee to become familiar with the conditional zoning district rezoning process and to identify and correct, if possible, potential problem areas with a development concept. Submittals for a pre-application meeting include a location map and a sketch plan of the project, including property boundaries, building footprints, parking, driveways, entrance locations, and such other information which may be requested by the community development department staff.

Property may be rezoned to a conditional zoning district only in response to, and consistent with, an application (petition) submitted on forms provided by the community development department, by the owners of all of the property to be included in the district. An application for conditional zoning must include a site plan (as described below) and supporting information and text that specifies the actual use or uses intended for the property and any conditions that in addition to predetermined requirements, will govern the development and use of the property.

7-4-3.1 Conceptual plan. To facilitate the discussion during the neighborhood compatibility meeting required by section 7-4-4, the applicant shall submit to the community development department, as a part of the application for a conditional zoning district rezoning, a conceptual plan showing how development is proposed for the site. The conceptual plan shall show the location and boundaries of the property and how individual buildings are to be situated on the site, including distances from these buildings to property lines, as well as proposed drives and parking. The locations of signs and outdoor lighting shall also be shown where appropriate. Proposed restrictive covenants, if available, shall also be presented. The conceptual plan need not be exactly to scale; although, all distances and dimensions shall be shown.

This ordinance provides a process whereby affected property owners, residents and developers have an opportunity to participate in a dialog as to how development is to be integrated into their neighborhoods. This is accomplished by a neighborhood compatibility meeting to be facilitated by the community development director or a designee, within 21 days of receipt of a complete application, including the required fee and conceptual plan.

7-4-4.1. Notification of participants. At least seven calendar days prior to the meeting, notice of the meeting shall be given in the following fashion:

a)

The developer shall be informed of the meeting by mail. Failure of the developer, or their authorized agent, to attend this meeting shall lead to an automatic annulment of the application.

b)

Property owners within 400 feet of any property line of the proposed sites shall be informed of the meeting by mail.

c)

All other persons shall be informed of the meeting by a conspicuously placed standardized on-site sign.

7-4-4.2 The developer's presentation. During the neighborhood compatibility meeting the developer shall explain to the affected property owners the proposed use for the site. The presentation shall include the developer's position on the compatibility of the project. It is always the developer's responsibility to propose a compatible project.

7-4-4.3 Relevant topics to be discussed. Following the developer's presentation, affected property owners and residents shall be permitted time to question the developer about points which remain unclear. Questioning shall center on the proposal's compatibility as presented, not the question of whether the site should be developed or its use changed.

7-4-4.4 Result of neighborhood compatibility meeting. Following the exchange of views between the developer and affected property owners/residents, the community development director or a designee shall review orally the points voiced during the informal compatibility meeting. Included in the review shall be proposals or counter-proposals to which both parties have agreed in an effort to make the project compatible, as well as those points where disagreement still exists. Upon conclusion of the review, the community development director or a designee shall ask those assembled if the positions presented represent an accurate consensus of the opinions expressed by the developer and affected property owners/residents. When they do, the meeting shall be concluded and the community development director or a designee shall record the opinions in the community development director's report. The community development director's report shall become a part of the application file.

7-4-4.5 Final site plan and completeness review. Upon completion of the neighborhood compatibility meeting, it shall be the responsibility of the applicant to submit a final site plan meeting the requirements of section 7-3-4.3, above. Notice of the completeness determination shall be provided to the applicant(s) as required by chapter 40 of the Code of Ordinances for the City of Hendersonville.

The completion date for the application shall be the date of receipt of all information requested by the community development director pursuant to section 7-3-4.3 including the TIA if required. The applicant will be scheduled for the next planning board meeting which is at least 24 days in the future. Substantial modification of the application subsequent to the complete date may result in the application being deferred to a subsequent meeting of the planning board. Any material modification of the application within seven days prior to the planning board meeting shall result in deferral of the application to the next available meeting.

In considering an application for the reclassification of property to a conditional zoning district, the planning board may recommend, and the city council may recommend that reasonable and appropriate conditions be attached to the approval of the rezoning. Conditions and site specific standards shall be limited to those that address the conformance of the development and use of the site to City of Hendersonville ordinances and comprehensive plan. Any such conditions should relate to the impact of the proposed use on surrounding properties, support facilities, pedestrian and vehicular circulation systems, screening and buffering areas, timing of development, road and right-of-way improvements, water and sewer improvements, stormwater drainage, open space and other matters that the planning board and/or city council may find appropriate or the applicant may propose. The applicant shall have a reasonable opportunity to consider and respond to any such conditions prior to the final action by the city council. Only those conditions mutually approved by the city council and the applicant may be incorporated into the rezoning approval.

Based on the level of contentiousness concerning the application, the city may recommend mediation. Even if the city does not recommend mediation, the opposing parties may choose to mediate at any point in the process.

If mediation is employed, which is wholly voluntary, the planning director, in consultation with the applicant and one or more representatives of those contesting the application, shall choose a mediator. The mediator should consult with the planning department on the past history of the property, visit the site of the proposed land development, and review the proposed plan.

The mediator then works with the planning staff, the applicant and other parties, to arrange a meeting space, set ground rules and time limits, and to attempt to negotiate a mediated agreement. The planners participate in the mediation, representing the interests and concerns of the city.

If the mediation results in a mutually acceptable settlement among the interested parties, the mediator prepares a written agreement which all parties sign. Copies of the mediated agreement are given to all parties.

The time requirements of this section are suspended for the time an application is in the mediation process.

Within 45 days of receiving the recommendation of the planning board or receipt of the mediator's report, whichever last occurs, city council shall conduct a public hearing on the application. Notice of the date, time and place of the public hearing shall be published in a newspaper of general circulation once a week for two successive weeks with the first notice to be published not less than ten nor more than 25 days prior to the date of the hearing.

Notice of the date, time and place of the public hearing shall also be mailed to the owner of the property which is the subject of the application, the person or entity whose application or request is the subject of the hearing, and the owners of all parcels of land situated within 400 feet of any of the boundaries of the subject parcel. Ownership shall be determined by reference to the Henderson County tax listing. The notice shall be deposited in the mail not less than ten nor more than 25 days prior to the date of the hearing. Within that same time period, the city shall prominently post a notice of the public hearing on the site that is the subject of the hearing or on an adjacent street or highway right-of-way.

The city council may request that reasonable and appropriate conditions be attached to the reclassification of a property to a conditional zoning district. If a reclassification of a property to a conditional zoning district is approved, the development and use of the property shall be governed by the existing zoning ordinance requirements applicable to the district's category, the approved site plan for the district, and any additional approved rules, regulations, and conditions, all of which shall constitute zoning regulations for the approved district and are binding on the property as an amendment to these regulations and to the official zoning map. All conditions imposed must be consented to in writing by all applicants, otherwise the conditional rezoning will be invalid as provided in section 7-4 above.

Only those uses and structures indicated in the approved rezoning application and site plan shall be allowed on the subject property. A change of location of the structures may be authorized pursuant to section 7-6 of this ordinance.

7-4-9.1 Conditions to approval of rezoning to a conditional zoning district. In approving a petition for the reclassification of property to a conditional zoning district, the planning board may recommend and city council may request that reasonable and appropriate conditions be attached to approval of the petition. Any such conditions should relate to the relationship of the proposed use to surrounding property, proposed support facilities such as parking areas and driveways, pedestrian and vehicular circulation systems, screening and buffer areas, the timing of development, street and right-of-way improvements, water and sewer improvements, stormwater drainage, the provision of open space, and other matters that city council may find appropriate or the petitioner may propose. Such conditions to approval of the petition may include dedication to the city, county or state, as appropriate, of any rights-of-way or easements for streets, water, sewer, or other public utilities necessary to serve the proposed development. The petitioner shall have a reasonable opportunity to consider and respond to any such conditions prior to final action by city council.

7-4-9.2 Effect of approval. If a petition is approved under this section, the district that is established, the approved petition, and all conditions which may have been attached to the approval, are binding on the property as an amendment to this ordinance and to the zoning map. All subsequent development and use of the property shall be in accordance with the standards for the approved conditional zoning district, the approved petition, including the conceptual site plan, and all conditions attached to the approval, unless such approval shall lapse or the property is rezoned.

If a petition is approved, the petitioner shall comply with all requirements established for obtaining a zoning compliance permit, a building permit and certificate of occupancy. Only those uses and structures indicated in the approved petition and site plan shall be allowed on the subject property. Any development in the district shall comply with all provisions of and conditions to the approved petition and site plan.

Revised final site plans shall be reviewed by the community development director or a designee to ensure conformance with any modifications agreed to as conditions of a petition for the reclassification of property to a conditional zoning district.

A zoning compliance permit shall be issued upon certification by the community development director or a designee that a revised final site plan demonstrating compliance with any modifications agreed to as conditions of the petition for reclassification of the property to a conditional zoning district has been received.

(Ord. No. 19-1075, § 1, 10-3-19; Ord. No. O-24-08, § 2, 4-4-24)

If a project is to be developed in phases, the plan for the entire development will be used to determine the nature of review it will receive. Before development may commence, the entity with power to issue development authorization, that is, the city manager, planning board, or city council, as the case may be, must approve a master plan for the entire development site.

Final plans for the development may be submitted in stages and may be approved by the entity which approved the master plan provided that the following requirements are met:

a)

All stages shall be shown with precise boundaries on the master plan and shall be numbered in the expected order of development.

b)

Each phase must be able to function independently of subsequent phases.

c)

All the data required for the project as a whole shall be given for each stage shown on the plan.

d)

A proportionate share of open space shall be included in each stage of the development.

e)

The phasing shall be consistent with the traffic circulation, drainage, and utilities plan for the entire development.

Development may only take place in accordance with approvals granted hereunder. Any deviation from approved development requires review and approval pursuant to this section.

In general, the entity which approved the development for which modification is sought will be responsible for deciding whether to approve modifications to such development. There are two exceptions to this rule. First, in some circumstances, as defined herein, the city manager, or a designee appointed by the city manager, may authorize modifications which are deemed minor. Second, if the intensity of the entire development, taking into consideration the proposed modification and any previous modifications, would exceed the threshold for a higher level of review and if such modifications, viewed cumulatively, do not qualify as de minimis, as defined herein, the entire development will be required to undergo the higher level of review.

Proposed modifications shall qualify as de minimis if the cumulative effect of such modifications would not alter any development standard by more than ten percent as allowed by G.S. 160D-403(d) for administrative decisions, G.S. 160D-703 for conditional district rezonings, and G.S. 160D-705 for quasi-judicial decisions. No change in density nor in permitted uses may be approved as a de minimis modification, but may only be approved as an amendment approved by the original approval authority.

De minimis (ten percent) increases or reductions in developmental intensity for nonresidential development may be approved pursuant to this section. Intensity shall be measured in terms gross floor area. The established intensity shall be intensity as originally approved, or in existence as of September 6, 1996, whichever is later. By way of illustration, if the owner of a commercial development with an established intensity of 45,000 square feet of floor area proposed a 6,000 square feet addition, the entire development, including that which is existing or previously approved, will be required to undergo rezoning to a conditional zoning district in accordance with section 7-4. If the owner of such development proposed a 4,000 square feet addition, the modification would qualify as de minimis and would be processed under site plan review.

The city manager may approve minor modifications to developments authorized under zoning compliance review so long as the total development, including all modifications, complies with applicable provisions of the zoning ordinance and so long as the total development does not exceed the thresholds for site plan review.

The city manager may approve a minor modification of a zoning compliance permit for changes to plans approved under site plan review as long as such changes continue to comply with the approving action of the planning board and all other applicable requirements and so long as the total development, including all modifications, does not exceed the threshold for rezoning to a conditional zoning district. The city manager shall not have the authority to approve a modification for any substantial changes to plans approved under site plan review unless such changes are specifically required by a condition of approval.

If a substantial change is proposed, the city manager shall require the filing of an application for approval of the modification which shall be reviewed in accordance with the procedures established in section 7-3.

The city manager is authorized to approve minor modifications to the approved final plans of developments authorized under special use permit review and conditional zoning districts but major modifications may only be authorized by city council in accordance with procedures set forth herein. A modification shall be deemed minor if it is not a major modification. A modification shall be deemed major if it proposes a substantial departure from the approving action of city council with regard to the original application or any subsequent modifications. Substantial departure from such approving action shall exist whenever the proposed modification would result in one or more of the following:

a)

A substantial change in the boundaries of the site approved by city council;

b)

A substantial change from the use(s) approved by city council;

c)

A substantial increase in the floor area approved by city council;

d)

A substantial increase in the number of residential dwelling units;

e)

A substantial increase in the density of nursing homes, rest homes, congregate care facilities or progressive care facilities;

f)

A substantial change in the location of one or more principal and/or accessory structures approved by city council;

g)

Structural alterations significantly affecting the basic size, form, style, ornamentation, and appearance of principal and/or accessory structures as shown on the plans approved by city council;

h)

A substantial change in pedestrian or vehicular access or circulation approved by city council; and

i)

A substantial change in the amount or location of open space, landscaping or buffer screens approved by city council.

If the proposed action is determined to be a major modification, the city manager shall require the filing of a request for a map amendment. The city manager shall prescribe the form(s) of application as well as any other material reasonably required to determine compliance with this article.

This section governs the expiration and revocation of zoning compliance permits issued subsequent to zoning compliance review or site plan review. The expiration and revocation of zoning compliance permits issued subsequent to rezoning to a conditional zoning district are governed by the provisions of subsection 7-4-12.

If a building permit for the use, construction, or activity authorized by approval of an application for a zoning compliance permit or modification of a zoning compliance permit is not obtained within six months of the date of approval, or within such further time stipulated in the approval, the approval shall expire and any city permit issued pursuant to the approval shall be void. The city manager may grant a single extension of the starting time limit for up to 12 months unless the city manager determines that paramount considerations of health, the general welfare, or public safety require reconsideration by the entity which granted development authorization. The city manager shall determine whether the use, construction, or activity has started.

If all construction and actions authorized or required by a zoning compliance permit or modification thereof are not completed within 18 months or such other completion date stipulated in the permit or modification, the permit holder may request an extension of the completion time limit from the city manager. The city manager may grant extensions of the time limit for periods of up to 12 months if the city manager determines the following: a) the permit holder requested the extension prior to the expiration of the completion time limit; b) the permit holder has proceeded with due diligence and good faith; and c) conditions have not changed so substantially as to warrant reconsideration of the approved development. The city manager shall determine whether or not all construction and actions authorized or required have been completed.

If any conditions of a zoning compliance permit or modification, including completion time limits, or requirements of this ordinance applicable to the permit or modification are violated, permit, as modified, may be revoked by the original approving authority, following the same procedure as the original approval of the zoning compliance permit.

The original approval authority may reinstate a revoked zoning compliance permit or modification of zoning compliance permit if the city manager determines the following: a) the holder of the revoked permit or modification submitted a request for reinstatement within 90 days of revocation; b) the violations that were the cause of the revocation have been corrected; and c) the development fully complies with all conditions of the permit or modification and all applicable requirements of this ordinance.

This section applies to all planned developments regardless of use district or classification and regardless of the development review process required. A planned development consists of land that is under unified control and planned and developed as a whole and which includes principal and accessory structures and uses substantially related to the character and purposes of the planned development. A planned development shall be constructed according to comprehensive and detailed plans which include not only streets, utilities, lots or building sites, and the like, but also site plans and floor plans for all buildings as intended to be located, constructed, used, and related to each other, and detailed plans for other uses and improvements on the land as related to the buildings, provided that floor plans shall not be required for single-family or two-family dwelling units unless consented to by the applicant.

A planned development shall include a program for the provision, operation, and maintenance of such areas, facilities, and improvements as will be for common use by some or all of the occupants of the planned development district, but which will not be provided, operated, or maintained at general public expense.

The purpose of this section is to promote the efficient and well-planned use of land through unified development of sites while providing the city with open space, compatible uses, optimum service of community facilities and adequate vehicular access and circulation. A planned development must be situated, designed, landscaped and buffered in such a manner that it will be compatible with environmentally sensitive areas, such as flood plains or steep slopes, and with existing or proposed land uses in adjoining neighborhoods.

The land in a planned development shall be under single ownership or management at the time of construction or proper assurances shall be provided that the project can be successfully completed.

Except for minor planned residential developments, which may be developed in certain use district as specified herein, planned developments may only be established in one of the planned development conditional zoning district classifications, that is, PRDCZD, PCDCZD, PMDCZD, PIDCZD, or PMHCZD. Planned developments shall be appropriately located with respect to intended functions, to the pattern and timing of development indicated in the comprehensive plan and to public and private facilities existing or clearly to be available by the time the development reaches the stage where they will be needed.

This section applies only to development which has undergone site plan or is within a conditional zoning district. "As-built" or record drawings shall be submitted prior to the issuance of the last certificate of occupancy for the project. These drawings shall be submitted in two parts. The first, at a scale not greater than one inch equals 40 feet, shall show all features on the site plan. The second, at a scale not greater than one inch equals 200 feet, may show only all underground facilities on the site and the depth of bury. Plans and verifications shall be signed and sealed by an architect, engineer or surveyor licensed to practice in the State of North Carolina.

Project infrastructure refers to the improvements, such as water and wastewater lines, streets and roads, stormwater management facilities, sidewalks and street lighting, which are necessary to sustain the intended use of a project.

Upon approval of the final site plan by the city council, the applicant shall proceed with the construction of project infrastructure, including but not limited to, roads, water and sewer facilities, drainage, sedimentation and erosion control facilities, and lighting.

Except as provided in section 7-10-2 below, and prior to issuance of a building permit, the applicant shall complete, install and provide for the dedication of all project infrastructure as specified on the approved final site plan. The applicant shall certify the dedication of said improvements in a form acceptable to the city.

All construction undertaken pursuant to the final site plan shall be inspected and approved by the City of Hendersonville and/or appropriate local, state, and federal agencies prior to issuance of a certificate of occupancy for the development.

In lieu of requiring the completion, installation and dedication of all project infrastructure prior to the issuance of a building permit, the City of Hendersonville may accept a bond with approved surety or a letter of credit payable to the City of Hendersonville in an amount equal to 120 percent of the estimated cost of the installation of the required improvements, whereby the improvements may be constructed and utilities installed without cost to the city in the event of default of the developer.

The letter of credit or bond shall remain in full force and effect until such time as the construction of project infrastructure is completed and accepted by the City of Hendersonville. No bond or letter of credit may be called without 60 days prior written notice to the city.

Failure to maintain in effect a city-approved financial guarantee of any incomplete improvement shall suspend the approval of the plan and any permits issued as a result of the plan approval.

All financial guarantees must contain language requiring the completion of all project infrastructure as shown on the approved final site plan and the guarantee of these improvements for an 18-month warranty after they have been accepted by the city.

All financial guarantees must either be issued from a financial institution incorporated in the State of North Carolina or be redeemable at a financial institution incorporated in the State of North Carolina.

Certain developments, due to their type, size and/or location, tend to have greater impacts on public services and facilities than does development generally. In order to ensure that such development is undertaken only when there are adequate public facilities to serve it, no development undergoing site plan review or conditional zoning district review shall be approved unless city staff, the planning board or city council, as the case may be, first determines that adequate facilities and services will be available to such development before it is occupied. Specifically, no development undergoing site plan review or rezoning to a conditional zoning district shall be approved unless city staff, the planning board or city council, as the case may be, finds that all of the following conditions exist or will exist on or before the date that buildings or land in the proposed development will be occupied:

a)

Water supply. There will be an adequate potable water supply available for the proposed occupancy. An adequate public water supply shall include adequate potable water for consumption and other inside and outside uses, and adequate water pressure and fire flow to meet established standards of the city for fire protection.

b)

Wastewater. There will be adequate connections to public wastewater disposal systems with adequate capacity to handle the type and volume of flow from the proposed occupancy.

c)

Roads. The road system in the development will connect to segments of the public road system with adequate capacity to handle the projected traffic flow, both on an average basis and at peak hours. Furthermore, the development shall be so located with respect to major street, bicycle and pedestrian networks, or public transportation facilities, and shall be so designed, as to provide direct access to the development without creating substantial additional traffic in residential neighborhoods outside the development.

Developments failing to meet these criteria may be approved if the applicant a) provides private facilities, utilities, and services approved by appropriate public agencies as substituting on an equivalent basis, and assures their satisfactory continuing operation, permanently or until similar public utilities, facilities, or services are available and used; or b) makes provision acceptable to the city for offsetting any added net public cost of early commitment of public funds made necessary by such development.

In determining net public costs, the difference in anticipated public installation, operation, and maintenance costs and the difference in anticipated public revenue shall be considered. Expenses involved in making such determinations shall be paid by the applicant. Determinations shall be made by the city or by experts acceptable to the city.

Two or more developments shall be aggregated and treated as a single development under this ordinance when they are determined to be part of a unified plan of development and are physically proximate to one another. Each of the criteria listed below is indicative of a unified plan of development. Whenever one or more are found to exist, the reviewing authority may, but is not required to, determine that two or more projects are part of a unified plan of development:

a)

The same person has control of the developments;

b)

The same person has ownership or a significant legal or equitable interest in the developments;

c)

There is common management controlling the form of physical development or disposition of parcels of the development;

d)

There is a reasonable closeness in time between the completion of some or all of one development and the submission of an application for authorization of other development which is indicative of a common developmental effort;

e)

A master plan or series of plans or drawings exists covering the developments sought to be aggregated;

f)

There is a voluntary sharing of infrastructure that is indicative of a common development effort or is designated specifically to accommodate the developments sought to be aggregated;

g)

There is a common advertising scheme or promotional plan in effect for the developments sought to be aggregated.

Development approvals and determinations rendered pursuant to this article are subject to review in the manner set forth herein.

There are two separate bodies charged with responsibility for review of administrative decisions: City council and the board of adjustment. In no case will decisions of either of those bodies be subject to review by the other. Judicial review from their decisions shall be as provided in G.S. ch. 160D.

The following decisions are subject to review in the manner indicated:

a)

Zoning compliance permits. Administrative decisions regarding applications for issuance of zoning compliance permits under section 7-2 are subject to review by the board of adjustment upon the timely filing of an appeal pursuant to section 10-7, below.

b)

Preliminary site plans. Administrative decisions of the planning board regarding applications for preliminary site plan approval under section 7-3-3 are subject to review by or to a legal challenge file with the Henderson County Superior Court in accordance with the provisions of G.S. ch. 160D, art. 14. If the decision of the planning board is a quasi-judicial decision made after an evidentiary hearing, then the decision will be subject to an appeal in the nature of certiorari to Superior Court in accordance with G.S. 160D-1402 or may be subject to a legal challenge as authorized by G.S. 160D-1403.1.

c)

Final site plans. Administrative decisions regarding applications for final site plan approval under section 7-3-4 are subject to review by are subject to review by or to a legal challenge file with the Henderson County Superior Court in accordance with the provisions of G.S. ch. 160D, art. 14. If the decision of the planning board is a quasi-judicial decision made after an evidentiary hearing, then the decision will be subject to an appeal in the nature of certiorari to Superior Court in accordance with G.S. 160D-1402 or may be subject to a legal challenge as authorized by G.S. 160D-1403.1.

Judicial review of development decisions rendered pursuant to this article shall be in accordance with this section and with G.S. In no event shall a party be entitled to judicial review until such time as all administrative remedies have been exhausted.

a)

Zoning compliance permits. Decisions of the board of adjustment regarding appeals from development decisions concerning applications for zoning compliance permits may be appealed to the Superior Court in accordance with section 10-11, below. Such appeals shall be in the nature of certiorari.

b)

Preliminary site plans. Decisions of the city council regarding appeals from development decisions concerning applications for preliminary site plan approval may be appealed to the Superior Court by any aggrieved party. Such appeals shall be in the nature of certiorari and must be filed within 30 days after the filing of the decision in the office of the city clerk or after a written copy thereof is delivered to every aggrieved party who has filed a written request for such copy with the clerk at the time of the hearing, whichever is later. The copy of the decision of the council may be delivered to aggrieved parties either by personal service or by registered mail or certified mail return receipt requested.

b)

Final site plans. Decisions of the city council regarding appeals from development decisions concerning applications for final site plan approval may be appealed to the Superior Court by any aggrieved party in the same manner as decisions regarding preliminary site plans set forth in the preceding paragraph.

Notice of the following types of decisions, development approvals or determinations that are made under this ordinance shall be provided as stated:

a)

Administrative decisions, development approvals and determinations by staff. Written notice of administrative decisions, development approvals and determinations made by city staff shall be given in accordance with the requirements of G.S. 160D-403(b). Posting of the property by the applicant or owner(s) (if not the applicant) with notice of the administrative decision, development approvals and determinations made by city staff shall not be required, but is recommended in order to provide constructive notice to the public of the administrative decision, development approval, or determination made. The person giving the written notice of the decision shall certify in writing that the required notices were given.

b)

Administrative decisions, development approvals and determinations by the planning board or city council. Written notice of administrative decisions, development approvals and determinations made by the planning board or city council shall be given in accordance with the requirements of G.S. 160D-403(b) as required by G.S. 160D-1403(b). Posting of the property by the applicant or owner(s) (if not the applicant) with notice of the administrative decision, development approvals and determinations made by the planning board or city council shall not be required, but is recommended in order to provide constructive notice to the public of the administrative decision, development approval, or determination made. The person giving the written notice of the decision shall certify in writing that the required notices were given.

c)

Decisions regarding evidentiary hearings by the zoning board of adjustment or by city council. A copy the written decisions, development approvals and determinations made by the zoning board of adjustment or city council following an evidentiary hearing shall be given in accordance with the requirements of G.S. 160D-406(j). Posting of the property by the applicant or owner(s) (if not the applicant) with notice of the decision, development approvals and determinations made by the zoning board of adjustment or city council shall not be required, but is recommended in order to provide constructive notice to the public of the decision, development approval, or determination made. The staff member person delivering the written decision required by G.S. 160D-406(j) shall certify in writing that the written decision was delivered as required.