(a)

A local government may adopt zoning regulations. Except as provided in subsections (b) and (c) of this section, a zoning regulation may regulate and restrict the height, number of stories, and size of buildings and other structures; the percentage of lots that may be occupied; the size of yards, courts, and other open spaces; the density of population; the location and use of buildings, structures, and land. A local government may regulate development, including floating homes, over estuarine waters and over lands covered by navigable waters owned by the state pursuant to G.S. 146-12. A zoning regulation shall provide density credits or severable development rights for dedicated rights-of-way pursuant to G.S. 136-66.10 or G.S. 136-66.11. Where appropriate, a zoning regulation may include requirements that street and utility rights-of-way be dedicated to the public, that provision be made of recreational space and facilities, and that performance guarantees be provided, all to the same extent and with the same limitations as provided for in G.S. 160D-804 and G.S. 160D-804.1.

(b)

Any regulation relating to building design elements adopted under this chapter may not be applied to any structures subject to regulation under the North Carolina Residential Code except under one or more of the following circumstances:

(1)

The structures are located in an area designated as a local historic district pursuant to part 4 of article 9 of this chapter.

(2)

The structures are located in an area designated as a historic district on the National Register of Historic Places.

(3)

The structures are individually designated as local, state, or national historic landmarks.

(4)

The regulations are directly and substantially related to the requirements of applicable safety codes adopted under G.S. 143-138.

(5)

Where the regulations are applied to manufactured housing in a manner consistent with G.S. 160D-908 and federal law.

(6)

Where the regulations are adopted as a condition of participation in the National Flood Insurance Program.

Regulations prohibited by this subsection may not be applied, directly or indirectly, in any zoning district or conditional district unless voluntarily consented to by the owners of all the property to which those regulations may be applied as part of and in the course of the process of seeking and obtaining a zoning amendment or a zoning, subdivision, or development approval, nor may any such regulations be applied indirectly as part of a review pursuant to G.S. 160D-604 or G.S. 160D-605 of any proposed zoning amendment for consistency with an adopted comprehensive plan or other applicable officially adopted plan.

For the purposes of this subsection, the phrase "building design elements" means exterior building color; type or style of exterior cladding material; style or materials of roof structures or porches; exterior nonstructural architectural ornamentation; location or architectural styling of windows and doors, including garage doors; the number and types of rooms; and the interior layout of rooms. The phrase "building design elements" does not include any of the following: (i) the height, bulk, orientation, or location of a structure on a zoning lot, (ii) the use of buffering or screening to minimize visual impacts, to mitigate the impacts of light and noise, or to protect the privacy of neighbors, or (iii) regulations adopted pursuant to this article governing the permitted uses of land or structures subject to the North Carolina Residential Code.

Nothing in this subsection affects the validity or enforceability of private covenants or other contractual agreements among property owners relating to building design elements.

(c)

A zoning or other development regulation shall not do any of the following:

(1)

Set a minimum square footage of any structures subject to regulation under the North Carolina Residential Code.

(2)

Set a maximum parking space size larger than nine feet wide by 20 feet long unless the parking space is designated for handicap, parallel, or diagonal parking. (2019-111, § 2.4; 2020-3, § 4.33(a); 2020-25, §§ 15, 51(a), (b), (d); 2022-11, § 10(a).)

(Ord. No. 2024-03, § 1(Exh. A), 3-4-24)

The zoning administrator and enforcement officer shall be appointed by the city manager. He is authorized and it shall be his duty to enforce and administer the provisions of this chapter. If a ruling of the zoning enforcement officer is questioned, the aggrieved party may appeal the ruling to the board of adjustment, if desired.

(Ord. No. 8-85, art. XVII, § 1, 9-23-85; Ord. No. 2024-01, 1-2-24)

Cross reference— Officers and employees, § 2-61 et seq.

No building, sign or other structure shall be erected, moved, extended, enlarged or structurally altered. Nor shall any excavation or filling of any lot for the construction of any building be commenced until the zoning enforcement officer has issued a zoning permit and the inspection department has issued a building permit.

(Ord. No. 8-85, art. XVII, § 2, 9-23-85)

Each application to the zoning enforcement officer for a zoning permit shall be accompanied by plat plans, in duplicate, showing the following:

(1)

The actual dimensions of the lot to be built upon;

(2)

The size of the building to be erected;

(3)

The location of the building on the lot;

(4)

The location of existing structures on the lot, if any;

(5)

The number of dwelling units the building is designed to accommodate;

(6)

The approximate setback lines of buildings on adjoining lots;

(7)

The intended use of the property;

(8)

Any other information that may be essential for determining whether the provisions of this chapter are being observed.

Any zoning permit issued shall expire and be cancelled unless the work authorized by it shall have begun within six months of its date of issue, or if the work authorized by it is suspended or abandoned for a period of one year. Written notice shall be given to the persons affected, including notice that further work as described in the cancelled permit shall not proceed unless or until another building and/or zoning permit has been obtained.

(Ord. No. 8-85, art. XVII, § 3, 9-23-85; Ord. No. 2024-01, 1-2-24)

(a)

A zoning certificate of compliance and/or approval, issued by the zoning enforcement officer, is required after one or more of the following:

(1)

Occupancy or use of a building subsequently erected, altered or moved;

(2)

A change of the use of any building or land and;

(3)

Approval of any rezoning or special use permits granted by the planning board, board of adjustment, or city council.

In addition, a certificate of compliance and/or approval shall be required for each nonconforming use created by the passage and subsequent amendments to this chapter. The owner of the nonconforming use shall obtain a certificate of compliance and/or approval within 30 days of the date of the specified passage or amendments.

(b)

A certificate of compliance and/or approval shall not be issued unless the proposed use of a building or land conforms to the applicable provisions of this chapter. If the certificate of compliance and/or approval is denied, the zoning enforcement officer shall state in writing the reasons for refusal, and the applicant shall be notified of the refusal. A record of all certificates/approvals shall be kept on file in the office of the zoning enforcement officer, and copies shall be furnished on request to any person having a proprietary or tenancy interest in the building or land involved.

(Ord. No. 8-85, art. XVII, § 4(4.2), 9-23-85; Ord. No. 2024-01, 1-2-24)

(a)

When regulations made under authority of this article require a greater width or size of yards or courts, or require a lower height of a building or fewer number of stories, or require a greater percentage of a lot to be left unoccupied, or impose other higher standards than are required in any other statute or local ordinance or regulation, regulations made under authority of this article shall govern. When the provisions of any other statute or local ordinance or regulation require a greater width or size of yards or courts, or require a lower height of a building or a fewer number of stories, or require a greater percentage of a lot to be left unoccupied, or impose other higher standards than are required by the regulations made under authority of this article, the provisions of that statute or local ordinance or regulation shall govern.

(b)

When adopting regulations under this part, a local government may not use a definition of dwelling unit, bedroom, or sleeping unit that is more expansive than any definition of the same in another statute or in a rule adopted by a state agency.

(Ord. No. 8-85, art. XVII, § 5, 9-23-85; Ord. No. 2024-01, 1-2-24)

In any case where a building is constructed or used or land is used in violation of this chapter, the city or neighboring property owner who would be affected may institute injunction, mandamus or other appropriate action or proceedings to prevent the occupancy of the building, structure or land.

(Ord. No. 8-85, art. XVII, § 6, 9-23-85)

(a)

Reserved.

(b)

Civil penalty procedure.

(1)

Offender. An offender is any person or entity whom the zoning enforcement officer reasonably believes has violated any zoning ordinance. An offender may be the occupant, owner, lessee, or lessor, or any person or entity having beneficial use of the affected property, or any or all of the above.

(2)

Warning citation. Prior to issuing a civil citation for violation of these zoning ordinances, except for violations of article VIII of these zoning ordinances relating to signs, the zoning enforcement officer shall issue and serve upon the offender a warning citation which shall provide the following information:

a.

Nature of the violation(s);

b.

The ordinance(s) violated;

c.

A reasonable period of time within which the violation(s) shall be cured, which reasonable time shall be deemed to be 30 days from the date of service of the warning citation unless

1.

There is risk to public safety or health, in which case the warning citation may require the violations to be cured immediately or,

2.

A warning citation has been previously issued to the offender for the same offense within the previous three years, in which case the warning citation may require the violations to be cured within ten days;

d.

If the violations are not cured within the prescribed time, that subsequent citation(s) shall be issued causing the offender to incur penalties in the amount of $50.00 per day until the violations are cured; and

e.

A time, place and date for a hearing to be held before the zoning enforcement officer, which is no more than 30 days from the date of the warning citation.

(3)

Warning citation hearing. At the hearing noticed in the warning citation, the offender and any party in interest shall have the right to appear before the zoning enforcement officer and give evidence concerning the alleged violations. Rules of evidence applicable in courts of law and equity shall not apply. At the hearing, the zoning enforcement officer can rescind, modify, or take no action with respect to the warning citation. If no action is taken, or if the offender fails to attend the hearing, the warning citation shall remain in full force and effect and the violations cited therein must be cured within the time prescribed by the original warning citation.

(4)

Civil citation. If the violations are not cured within the time prescribed by the warning citation, the zoning enforcement officer may issue a civil citation, which shall be served upon the offender requiring the offender to pay the sum of $50.00 on or before the date that is 15 days after the date of service of the civil citation.

(5)

Subsequent civil citations. Once a warning citation has been issued for an offender concerning a violation, there is no need to issue additional warning citations or to hold additional warning citation hearings with respect to that violation by the offender. Each day's continuing violation shall be a separate and distinct offense irrespective of whether an additional citation is issued to the offender. The citation shall state that each day of the continuing violation shall be a separate and distinct offense, and shall subject the offender to an additional civil penalty of $50.00 per day.

(6)

Failure to comply. If the offender fails to pay the fine assessed in the civil citation within 15 days from the date of service, the city may institute a civil action in the nature of debt, and shall be entitled to collect the fine or fines upon which the suit is brought, interest at the legal rate, costs, and attorneys' fees.

(7)

Service. Warning citations and civil citations shall be served upon the offenders by any manner allowed under Rule 4 of the North Carolina Rules of Civil Procedure. Additionally, if the identities or whereabouts of any offenders are unknown and cannot be ascertained by the zoning enforcement officer after due diligence or if the offenders refuse service, and the zoning enforcement officer makes an affidavit to that effect, then service of the warning citation or civil citation may be made by posting the citation in a conspicuous place on the affected property. With respect to the issuance of a warning citation, service must be perfected ten days prior to the hearing scheduled therein, unless:

a.

The code enforcement officer deems that public health and safety are at risk, in which case service must be perfected 24 hours prior to the time of the hearing, or

b.

The offender has within the previous three years been issued a warning citation for the same offense, in which case service must be perfected at least five days prior to the hearing scheduled therein.

(c)

Civil penalties for violation of article VIII.

(1)

No warning citation shall be required for a violation of article VIII of the zoning ordinance. Upon a violation or article VIII, the zoning enforcement officer shall issue a civil citation to the offender.

(2)

All violations of section 3 of article VIII shall subject the offender to a $10.00 civil penalty. All other violations of article VIII shall subject the offender to a $50.00 civil penalty.

(3)

Each day's continuing violation shall be a separate and distinct offense.

(d)

Injunction and abatement.

(1)

Any provision of this chapter 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.

(2)

Any provision of this chapter or any other city ordinance that makes unlawful a condition existing upon or use made of real property may be enforced by injunction or order of abatement by a general court of justice. When a violation of such a provision occurs the city 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.

(3)

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 this article.

(4)

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 may be cited for contempt, and the city may execute the order of abatement. The city 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.

(e)

Revocation of permit. The city may at any time review any conditional zoning or special use permit for compliance with agreed upon terms and conditions of the original approved permit. If the term(s) and/or condition(s) are not being continuously met the city shall notify the owner(s) of said violation(s) and ask that the term(s) and/or condition(s) be brought into compliance per the permit issued. Failure to do so with in a set time shall cause the city to revoke the permit. If the permit is revoked it must be done after a hearing before the specific board that granted the original permit. A permit may be re-instated by the approving board when proof is shown that the term(s) and/or condition(s) are being met again. G.S. 160D-403(f).

(f)

Method of enforcement. These zoning ordinances may be enforced by any one, all, or a combination of the remedies authorized and prescribed herein.

(Ord. No. 8-85, art. XVII, § 7, 9-23-85; Ord. No. 8.17-85, §§ 7.1, 7.4, 7.5, 12-5-94; Ord. of 6-13-00 §§ 7-1—7-5; Amend. of 5-7-01; Ord. No. 2024-01, 1-2-24)

Fees shall be paid at the time an application is presented to the zoning enforcement officer at rates determined by the city council.

(Ord. No. 8-85, art. XVII, § 10, 9-23-85)

(a)

Findings. The General Assembly recognizes that local government approval of development typically follows significant investment in site evaluation, planning, development costs, consultant fees, and related expenses. The General Assembly finds that it is necessary and desirable to provide for the establishment of certain vested rights in order to ensure reasonable certainty, stability, and fairness in the development regulation process, to secure the reasonable expectations of landowners, and to foster cooperation between the public and private sectors in land-use planning and development regulation. The provisions of this section and G.S. 160D-108.1 strike an appropriate balance between private expectations and the public interest.

(b)

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

(c)

Vested rights. Amendments in land development regulations are not applicable or enforceable without the written consent of the owner with regard to any of the following:

(1)

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

(2)

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

(3)

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

(4)

A multi-phased development pursuant to subsection (f) of this section.

(5)

A vested right established by the terms of a development agreement authorized by article 10 of this chapter.

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

(d)

Duration of vesting. Upon issuance of a development permit, the statutory vesting granted by subsection (c) of this section for a development project is effective upon filing of the application in accordance with G.S. 143-755, for so long as the permit remains valid pursuant to law. Unless otherwise specified by this section or other statute, local development permits expire one year after issuance unless work authorized by the permit has substantially commenced. A local land development regulation may provide for a longer permit expiration period. For the purposes of this section, a permit is issued either in the ordinary course of business of the applicable governmental agency or by the applicable governmental agency as a court directive. Except where a longer vesting period is provided by statute or land development regulation, the statutory vesting granted by this section, once established, expires for an uncompleted development project if development work is intentionally and voluntarily discontinued for a period of not less than 24 consecutive months, and the statutory vesting period granted by this section for a nonconforming use of property expires if the use is intentionally and voluntarily discontinued for a period of not less than 24 consecutive months. The 24-month discontinuance period is automatically tolled during the pendency of any board of adjustment proceeding or civil action in a state or federal trial or appellate court regarding the validity of a development permit, G.S. 160D-108 Page 2 the use of the property, or the existence of the statutory vesting period granted by this section. The 24-month discontinuance period is also tolled during the pendency of any litigation involving the development project or property that is the subject of the vesting.

(e)

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

(f)

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

(g)

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

(h)

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

(i)

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

(j)

Definitions. As used in this section, the following definitions apply:

(1)

Development. As defined in G.S. 143-755(e)(1).

(2)

Development permit. As defined in G.S. 143-755(e)(2).

(3)

Land development regulation. As defined in G.S. 143-755(e)(3).

(4)

Multi-phased development. A development containing 25 acres or more that is both of the following:

a.

Submitted for development permit approval to occur in more than one phase.

b.

Subject to a master development plan with committed elements showing the type and intensity of use of each phase. (2019-111, § 2.4; 2020-3, § 4.33(a); 2020-25, §§5(a), 50(b), 51(a), (b), (d); 2021-168, § 1(a).)

(Ord. No. 2024-03, § 1(Exh. A), 3-4-24)

The city council shall have the following duties in relation to this chapter:

(1)

Adopt and repeal this chapter.

(2)

Amend this chapter.

(3)

Authorize, amend, or revoke conditional zoning, conventional zoning, and special use permits as specified in this chapter.

(4)

Plan consistency. When adopting or rejecting any zoning text or map amendment, the governing board shall approve a brief statement describing whether its action is consistent or inconsistent with an adopted comprehensive or land-use plan. The requirement for a plan consistency statement may also be met by a clear indication in the minutes of the governing board that at the time of action on the amendment the governing board was aware of and considered the planning board's recommendations and any relevant portions of an adopted comprehensive or land-use plan. If a zoning map amendment is adopted and the action was deemed inconsistent with the adopted plan, the zoning amendment shall have the effect of also amending any future land-use map in the approved plan, and no additional request or application for a plan amendment shall be required. A plan amendment and a zoning amendment may be considered concurrently. The plan consistency statement is not subject to judicial review. If a zoning map amendment qualifies as a "large-scale rezoning" under G.S. 160D-602(b), the governing board statement describing plan consistency may address the overall rezoning and describe how the analysis and policies in the relevant adopted plans were considered in the action taken.

(5)

Additional reasonableness statement for rezonings. When adopting or rejecting any petition for a zoning map amendment, a statement analyzing the reasonableness of the proposed rezoning shall be approved by the governing board. This statement of reasonableness may consider, among other factors: (i) the size, physical conditions, and other attributes of the area proposed to be rezoned, (ii) the benefits and detriments to the landowners, the neighbors, and the surrounding community, (iii) the relationship between the current actual and permissible development on the tract and adjoining areas and the development that would be permissible under the proposed amendment; (iv) why the action taken is in the public interest; and (v) any changed conditions warranting the amendment. If a zoning map amendment qualifies as a "large-scale rezoning" under G.S. 160D-602(b), the governing board statement on reasonableness may address the overall rezoning.

(6)

Single statement permissible. The statement of reasonableness and the plan consistency statement required by this section may be approved as a single statement.

(7)

Provisions of ordinance. The zoning or unified development ordinance may provide that the board of adjustment, planning board, or governing board hear and decide quasi-judicial zoning decisions. The board shall follow quasi-judicial procedures as specified in G.S. 160D-406/section 32-129 when making any quasi-judicial decision.

(8)

Ordinance required. A development regulation adopted pursuant to this chapter shall be adopted by ordinance.

(9)

Down-zoning. No amendment to zoning regulations or a zoning map that down-zones property shall be initiated nor is it enforceable without the written consent of all property owners whose property is the subject of the down-zoning amendment, unless the down-zoning amendment is initiated by the local government. For purposes of this section, "down-zoning" means a zoning ordinance that affects an area of land in one of the following ways:

a.

By decreasing the development density of the land to be less dense than was allowed under its previous usage.

b.

By reducing the permitted uses of the land that are specified in a zoning ordinance or land development regulation to fewer uses than were allowed under its previous usage. (2019-111, § 2.4; 2020-3, § 4.33(a); 2020-25, §§ 12, 50(a), 51(a), (b), (d).)

(Ord. No. 8-85, art. XIII, § 1, 9-23-85; Ord. No. 2024-01, 1-2-24; Ord. No. 2024-03, § 1(Exh. A), 3-4-24)

(a)

Request for a public hearing. When an applicant makes a request to change the zoning on a parcel(s) of land and request must be made prior to the city council acting on the request. The request for a public hearing will be placed on the agenda and council will review the request for rezoning and then schedule a public hearing to hear the request. All request[s] for rezoning must be made by application no later than the first Monday of each month. In the event Monday is a holiday then the following Tuesday will become the deadline.

(b)

Public notice. Before amending, adopting, or repealing any ordinance or development regulation authorized by this chapter, the governing board shall hold a legislative hearing. A notice of the hearing shall be given once a week for two consecutive calendar weeks in a newspaper having general circulation in the area. The notice shall be published for the first time not less than ten days nor more than 25 days before the date scheduled for the hearing. In computing such period, the day of publication is not to be included but the day of the hearing shall be included. No such action on the amendment, adoption, or repeal shall be taken until the proposal has been submitted to the planning board for their recommendation.

(c)

Notification by mail. In addition to a legislative hearing when property is rezoned, the parcel owner and the adjoining parcel owners, as shown on the county tax abstracts, shall be notified by first class mail at least ten but not more than 25 days prior to the date of the hearing. The person giving notice shall certify to the city council that the property owners have been notified.

(d)

Posted notice. When a zoning map amendment is proposed, the local government shall prominently post a notice of the hearing on the site proposed for the amendment or on an adjacent public street or highway right-of-way. The notice shall be posted within the same time period specified for mailed notices of the hearing. When multiple parcels are included within a proposed zoning map amendment, a posting on each individual parcel is not required but the local government shall post sufficient notices to provide reasonable notice to interested persons.

(e)

Actual notice. Except for a government-initiated zoning map amendment, when an application is filed to request a zoning map amendment and that application is not made by the landowner or authorized agent, the applicant shall certify to the local government that the owner of the parcel of land as shown on the county tax listing has received actual notice of the proposed amendment and a copy of the notice of the hearing. Actual notice shall be provided in any manner permitted under G.S. 1A-1, Rule 4(j). If notice cannot with due diligence be achieved by personal delivery, certified mail, or by a designated delivery service authorized pursuant to 26 U.S.C. § 7502(f)(2), notice may be given by publication consistent with G.S. 1A-1, Rule 4(j1). The person or persons required to provide notice shall certify to the local government that actual notice has been provided, and such certificate shall be deemed conclusive in the absence of fraud.

(f)

Optional communication requirements. When a zoning map amendment is proposed, a zoning regulation may require communication by the person proposing the map amendment to neighboring property owners and residents and may require the person proposing the zoning map amendment to report on any communication with neighboring property owners and residents.

(Ord. No. 8-85, art. XIII, § 2, 9-23-85; Ord. No. 2024-01, 1-2-24)

Subject to the limitations of this chapter, zoning regulations may from time to time be amended, supplemented, changed, modified, or repealed. If any resident or property owner in the local government submits a written statement regarding a proposed amendment, modification, or repeal to a zoning regulation, including a text or map amendment that has been properly initiated as provided in G.S. 160D-601, to the clerk to the board at least two business days prior to the proposed vote on such change, the clerk to the board shall deliver such written statement to the governing board. If the proposed change is the subject of a quasi-judicial proceeding under G.S. 160D-705 or any other statute, the clerk shall provide only the names and addresses of the individuals providing written comment, and the provision of such names and addresses to all members of the board shall not disqualify any member of the board from voting. (2019-111, § 2.4; 2020-3, § 4.33(a); 2020-25, §§ 14, 50(b), 51(a), (b), (d).)

(Ord. No. 8-85, art. XIII, § 3, 9-23-85; Ord. No. 2015-04, 11-2-15; Ord. No. 2024-01, 1-2-24; Ord. No. 2024-03, § 1(Exh. A), 3-4-24)

The governing board shall not hear any appeals from the zoning enforcement officer or the board of adjustment. When the governing board, as authorized by this article and specified in the various zoning districts in article II or III of this chapter, shall review and decide conventional rezonings, conditional zonings and some special use permits, any appeal from their decision shall be taken to the superior court within 30 days.

(Ord. No. 8-85, art. XIII, § 4, 9-23-85; Ord. No. 2024-01, 1-2-24)

A petition or application for amendment of the zoning requirements of the city as set out in this chapter and/or the official zoning map, that has been denied by the governing board or withdrawn by the applicant after the planning board has made a recommendation on the requested amendment, shall not be accepted for reconsideration by the governing board until 12 months have elapsed from the date of the denial or withdrawal of the application. A change in the applicant or in the ownership of the affected property during the 12-month waiting period will not alter or interrupt the waiting period. However, the governing board may allow a reapplication if, after receiving a recommendation from the planning board, the governing board determines that there have been substantial changes in conditions or circumstances which may relate to the request and justify reconsideration.

(Ord. No. 8.7-85, § 2, 6-5-89; Ord. No. 2024-01, 1-2-24)

A local government may by ordinance provide for the appointment and compensation of a planning board or may designate one or more boards or commissions to perform the duties of a planning board. A planning board established pursuant to this section may include, but shall not be limited to, one or more of the following:

(a)

Composition.

(1)

A planning board of any size or composition deemed appropriate, organized in any manner deemed appropriate; provided, however, the board shall have at least three members.

(2)

A joint planning board created by two or more local governments pursuant to part 1 of article 20 of G.S. ch. 160A.

(b)

Duties. A planning board may be assigned the following powers and duties:

(1)

To prepare, review, maintain, monitor, and periodically update and recommend to the governing board a comprehensive or land-use 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 policies, ordinances, development regulations, administrative procedures, and other means for carrying out plans in a coordinated and efficient manner;

(4)

To advise the governing board concerning the implementation of plans, including, but not limited to, review and comment on all zoning text and map amendments as required by G.S. 160D-604;

(5)

To exercise any functions in the administration and enforcement of various means for carrying out plans that the governing board may direct;

(6)

To provide a preliminary forum for review of quasi-judicial decisions, provided that no part of the forum or recommendation may be used as a basis for the deciding board and in some cases issue final decisions on special use permits (see section 32-129);

(7)

To perform any other related duties that the governing board may direct.

(Ord. No. 8-85, art. XIV, § 1, 9-23-85; Ord. No. 8.2-85, § 5, 4-7-86; Amend. of 4-1-19(1); Ord. No. 2024-01, 1-2-24; Ord. No. 2024-03, § 1(Exh. A), 3-4-24)

In addition to the duties listed in section 32-96, the planning board shall function as the board of adjustment.

(Ord. No. 8-85, art. XIV, § 2, 9-23-85)

The planning board shall function as the board of adjustment. The rules governing the planning board shall apply equally to the board of adjustment. Particularly, the number of members and the length of their terms are the same for both bodies.

(Ord. No. 8-85, art. XV, § 1, 9-23-85)

The board of adjustment shall be organized according to the bylaws of the planning board, as established in chapter 22, section 22-38.

(Ord. No. 8-85, art. XV, § 2, 9-23-85; Ord. No. 2015-03, 6-1-15)

The board of adjustment shall conduct meetings according to the planning board bylaws, as established in section 22-40. The board shall keep minutes of its proceedings showing the vote of each member on each question or a notation indicating absence or failure to vote. The final disposition of appeals shall be made by recorded resolution indicating the reasons of the board. All the information presented shall be a matter of public record.

(Ord. No. 8-85, art. XV, § 3, 9-23-85; Ord. No. 2024-01, 1-2-24)

Process required. Boards shall follow quasi-judicial procedures in determining appeals of administrative decisions, special use permits, certificates of appropriateness, variances, or any other quasi-judicial decision per 160D-406.

(Ord. No. 2024-03, § 1(Exh. A), 3-4-24)

(a)

Except as provided in subsection (c) of this section, appeals of decisions made by the staff under this chapter shall be made to the board of adjustment unless a different board is provided or authorized otherwise by statute or an ordinance adopted pursuant to this chapter.

(b)

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

(c)

Judicial challenge. A person with standing may bring a separate and original civil action to challenge the constitutionality of an ordinance or development regulation, or whether the ordinance or development regulation is ultra vires, preempted, or otherwise in excess of statutory authority, without filing an appeal under subsection (a) of this section.

(d)

Time to appeal. The owner or other party shall have 30 days from receipt of the written notice of the determination within which to file an appeal. Any other person with standing to appeal shall have 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 G.S. 160D-403(b) by first-class mail shall be deemed received on the third business day following deposit of the notice for mailing with the United States Postal Service.

(e)

Record of decision. The 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.

(Ord. No. 8-85, art. XV, § 5, 9-23-85; Ord. No. 2024-01, 1-2-24)

An appeal of a notice of violation or other enforcement order stays enforcement of the action appealed from and accrual of any fines assessed unless the 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 shall not be stayed except by a restraining order, which may be granted by a court. If enforcement proceedings are not stayed, the appellant may file with the official a request for an expedited hearing of the appeal, and the board shall meet to hear the appeal within 15 days after such a request is filed. Notwithstanding the foregoing, appeals of decisions granting a development approval or otherwise affirming that a proposed use of property is consistent with the development regulation shall not stay the further review of an application for development approvals to use such property; in these situations, the appellant or local government 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.

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.

(Ord. No. 8-85, art. XV, § 6, 9-23-85; Ord. No. 2024-01, 1-2-24)

The zoning board of adjustment shall have the following powers and duties:

(1)

The board shall hear and decide all matters upon which it is required to pass under any statute or development regulation adopted under this chapter. The ordinance may designate a planning board or governing board to perform any of the duties of a board of adjustment in addition to its other duties and may create and designate specialized boards to hear technical appeals. If any board other than the board of adjustment is assigned decision-making authority for any quasi-judicial matter that board shall comply with all of the procedures and the process applicable to a board of adjustment in making quasi-judicial decisions. See section 32-129 (2019-111, § 2.4.).

(2)

Variances. When unnecessary hardships would result from carrying out the strict letter of a zoning regulation, the board of adjustment shall vary any of the provisions of the zoning regulation upon a showing of all of the following:

a.

Unnecessary hardship would result from the strict application of the regulation. 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 regulation, such that public safety is secured and substantial justice is achieved.

No change in permitted uses may be authorized by variance. Appropriate conditions may be imposed on any variance, provided that the conditions are reasonably related to the variance. Any other development regulation that regulates land use or development may provide for variances from the provisions of those ordinances consistent with the provisions of this subsection. (2019-111, § 2.4.)

(Ord. No. 8-85, art. XV, § 7, 9-23-85; Ord. No. 8.2-85, § 6, 4-7-86; Ord. No. 2024-01, 1-2-24)

Except as otherwise provided by this chapter, the board of adjustment shall hear and decide appeals from administrative decisions regarding administration and enforcement of the zoning regulation or unified development ordinance and may hear appeals arising out of any other ordinance that regulates land use or development. The provisions of G.S. 160D-405 and G.S. 160D-406 are applicable to these appeals.

(Ord. No. 8-85, art. XV, § 8, 9-23-85; Ord. No. 2024-01, 1-2-24)

A special use permit shall be issued in when in certain zoning uses have unique characteristics and cannot be properly classified in any particular district, without consideration, of the impact of those uses upon neighboring land and of the particular use in the proposed location. The governing board, planning board, or board of adjustment shall follow the following quasi-judicial rules when issuing a special use permit:

(a)

Process required. Boards shall follow quasi-judicial procedures in determining appeals of administrative decisions, special use permits, certificates of appropriateness, variances, or any other quasi-judicial decision.

(b)

Notice of hearing. Notice of evidentiary hearings conducted pursuant to this chapter 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; to the owners of all parcels of land abutting the parcel of land that is the subject of the hearing; and to any other persons entitled to receive notice as provided by the local development regulation. In the absence of evidence to the contrary, the local government 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 days, but not more than 25 days, prior to the date of the hearing. Within that same time period, the local government 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. The board may continue an evidentiary hearing that has been convened without further advertisement. If an evidentiary hearing is set for a given date and a quorum of the board is not then present, the hearing shall be continued until the next regular board meeting without further advertisement.

(c)

Administrative materials. The administrator or staff to the board 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.

(d)

Presentation of evidence. The applicant, the local government, and any person who would have standing to appeal the decision under G.S. 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.

(e)

Appearance of official new issues. The official who made the decision or the person currently occupying that position, if the decision maker is no longer employed by the local government, shall be present at the evidentiary hearing as a witness. The appellant shall not be limited at the hearing to matters stated in a notice of appeal. If any party or the local government would be unduly prejudiced by the presentation of matters not presented in the notice of appeal, the board shall continue the hearing.

(f)

Oaths. The chair of the board or any member acting as chair and the clerk to the board are authorized to administer oaths to witnesses in any matter coming before the board. Any person who, while under oath during a proceeding before the board determining a quasi-judicial matter, willfully swears falsely is guilty of a Class 1 misdemeanor.

(g)

Subpoenas. The board making a quasi-judicial decision under this chapter through the chair or, in the chair's absence, anyone acting as chair may subpoena witnesses and compel the production of evidence. To request issuance of a subpoena, the applicant, the local government, and any person with standing under G.S. 160D-1402(c) may make a written request to the chair explaining why it is necessary for certain witnesses or evidence to be compelled. The chair shall issue requested subpoenas he or she determines to be relevant, reasonable in nature and scope, and not oppressive. The chair shall rule on any motion to quash or modify a subpoena. Decisions regarding subpoenas made by the chair may be immediately appealed to the full board. If a person fails or refuses to obey a subpoena issued pursuant to this subsection, the board or the party seeking the 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.

(h)

Appeals in 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).

(i)

Voting. The concurring vote of four-fifths 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.

(j)

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, reflect the board's determination of contested facts and their application to the applicable standards, and be approved by the board and 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 development regulation specifies. The decision of the board shall be delivered within a reasonable time by personal delivery, electronic mail, or first-class mail to the applicant, landowner, and 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 to the local government that proper notice has been made, and the certificate shall be deemed conclusive in the absence of fraud.

(k)

Judicial review. Every quasi-judicial decision shall be subject to review by the superior court by proceedings in the nature of certiorari pursuant to G.S. 160D-1402. Appeals shall be filed within the times specified in G.S. 160D-1405(d). (2019-111, § 2.4.)