4.1.1. Procedure. The city council may amend, supplement, or change the text of this ordinance and zoning map following review and recommendation of the planning board according to the procedures established in this article.

4.1.2. Action by applicant. The following action shall be taken by the applicant:

4.1.2.1. Proposed changes or amendments may be initiated by the city council, planning board, or by one or more interested parties.

4.1.2.2. An application for any change or amendment shall contain a description and statement of the present and proposed zoning regulation or district boundary to be applied, the names and addresses of the applicant, the owner of the parcel of land involved in the change if different from the applicant, and all adjacent property owners as shown on the Lenoir County tax listing. One (1) hard copy and one (1) electronic copy of such application shall be filed with the UDO administrator not later than thirty (30) calendar days prior to the planning board meeting at which the application is to be considered.

The UDO administrator shall not accept an application for rezoning on the same property more than once in a twelve-month period unless the following conditions exist:

4.1.2.2.1. Materially changed conditions;

4.1.2.2.2. Clerical error was the basis for the denial of the previous rezoning request;

4.1.2.2.3. Newly discovered evidence of adverse impact of the current zoning which by due diligence could not have been discovered in time for the earlier hearing; or

4.1.2.2.4. Substantially changed rezoning request.

The twelve-month period shall commence on the date a rezoning request is denied by the city council.

4.1.2.3. When a proposed amendment is initiated by individuals or parties other than the city council or planning board, a fee established by the city council shall be paid to the city for each application for an amendment to cover the necessary administrative costs and advertising.

If the UDO administrator determines that the development for which a rezoning is requested will have or may have substantial impact on surrounding properties, he may require that the applicant conduct an informational meeting prior to planning board consideration to discuss the impacts of the proposed rezoning with the adjoining property owners. The purpose of the information meeting is to involve those property owners most likely impacted by a proposed project in the early steps of the development process. Consequently, the information meeting should be held prior to the public hearing date established for the rezoning request.

4.1.3. Action by the planning board. The planning board shall advise and comment on whether the proposed text amendment or map amendment is consistent with the adopted comprehensive plan and any other applicable officially adopted plans. The planning board shall provide a written recommendation to the city council that addresses plan consistency and other matters as deemed appropriate by the planning board, but a comment by the planning board that a proposed amendment is inconsistent with the comprehensive plan shall not preclude consideration or approval of the proposed amendment by the city council. In its deliberations, the planning board shall provide the public an opportunity to comment on consistency with the comprehensive plan.

4.1.4. Action by the city council. Action to consider a rezoning petition, including the scheduling of a public hearing, will be at the discretion of the city council.

4.1.4.1. Notice and public hearings—Zoning text amendment. No amendment shall be adopted by the city council until after public notice and hearing. Notice of such a public hearing shall be published once a week for two successive calendar weeks in a local newspaper of general circulation in the city.

4.1.4.2. Notice and public hearing—Zoning map amendment.

4.1.4.2.1. In any case where the city council will consider a change in the zoning classification of a parcel of land, notice of the proposed petition or application shall be mailed by first class mail to the owner of that parcel of land and all abutting property owners as shown on the Lenoir County tax listing at the last addresses listed for such property owners on the Lenoir County tax abstracts. The party applying for the change in zoning classification shall submit, with the request for rezoning, a list of the names of the owners, their addresses and the tax parcel numbers of the property involved in the change and all properties any portion of which is within two hundred (200) feet of the property to be considered for rezoning, as shown on the Lenoir County tax listing. The application shall be considered incomplete without such material.

4.1.4.2.2. At least ten but no more than twenty-five (25) calendar days prior to the date of the meeting at which the city council will consider the request for rezoning, the city clerk shall mail a letter of notification in the supplied envelopes containing a description of the request and the time, date and location of the public hearing. Additionally, the site proposed for rezoning or an adjacent public right-of-way shall be posted with a notice of the public hearing not less than ten calendar days prior to the city council meeting at which the rezoning is to be considered. When multiple parcels are included in a proposed zoning map amendment, a posting of each individual site is not required, but the city shall post sufficient notices to provide reasonable notice to interested persons. The city clerk shall certify to the city council that such notices have been made and such certification shall be deemed conclusive in the absence of fraud.

4.1.4.2.3. The first class mail notice required under subsections 4.1.4.2.1 and 4.1.4.2.2 of this section shall not be required if the zoning map amendment directly affects more than fifty (50) properties, owned by a total of at least fifty (50) different property owners, and the city elects to use the expanded published notice. In this instance, the city may elect to either make the mailed notice provided for in this section or may as an alternative elect to publish a notice of the hearing as required by N.C.G.S. 160A-364, but provided that each advertisement shall not be less than one-half of a newspaper page in size. The advertisement shall only be effective for property owners who reside in the area of general circulation of the newspaper which publishes the notice. Property owners who reside outside of the newspaper circulation area, according to the address listed on the most recent Lenoir County property tax listing for the affected property, shall be notified according to the provisions of sections 4.1.4.2.1 and 4.1.4.2.2.

4.1.4.3. Recommendations of planning board. Before an item is placed on the consent agenda to schedule a public hearing, the planning board's recommendation on each proposed zoning amendment must be received by the city council. If no recommendation is received from the planning board within sixty (60) days from the date when submitted to the planning board, the petitioner may take the proposal to the city council without a recommendation from the planning board. However, the planning board may request the city council to delay final action on the amendment until such time as the planning board can present its recommendations.

4.1.4.3.1. After receiving a recommendation from the planning board on a proposed amendment, the city council may proceed to vote on the proposed ordinance, refer it to a committee for further study, or take any other action consistent with its usual rules of procedure.

4.1.4.3.2. The city council is not required to take final action on a proposed amendment within any specific period of time, but it should proceed as expeditiously as practicable on petitions for amendments since inordinate delays can result in the petitioner incurring unnecessary costs.

4.1.4.3.3. No member of the city council shall vote on any zoning map amendment or text amendment where the outcome of the matter being considered is reasonably likely to have a direct, substantial and readily identifiable financial impact on the member.

4.1.4.3.4. Prior to adopting or rejecting any zoning amendment, the city council shall adopt a statement describing whether the action is consistent with the adopted comprehensive plan and any other applicable officially adopted plans and explaining why the city council considers the action taken to be reasonable and in the public interest.

4.1.4.3.5. The city council shall adopt a statement of reasonableness for all small scale re-zonings as defined by the state statutes.

4.1.4.3.6. In deciding whether to adopt a proposed amendment to this ordinance, the central issue before the city council is whether the proposed amendment advance the public health, safety, or welfare. All other issues are irrelevant and all information related to other issues at the public hearing may be declared irrelevant by the mayor and excluded. When considering proposed map amendments:

4.1.4.3.6.1. The city council shall not consider any representations made by the petitioner that, if the change is granted, the rezoned property will be used for only one of the possible range of uses permitted in the requested classification. Rather, the city council shall consider whether the entire range of permitted uses in the requested classification is more appropriate than the range of uses in the existing classification.

4.1.4.3.6.2. The city council shall not regard as controlling any advantages or disadvantages to the individual requesting the change, but shall consider the impact of the proposed change on the public at large.

4.1.4.4. Qualified protests—Zoning map amendment.

4.1.4.4.1. In case of a protest against a zoning map amendment, that amendment shall not become effective except by favorable vote of three-fourths (¾) of all the members of the city council. For the purposes of this division, vacant positions on the city council and members who are excused from voting shall not be considered "members of the council" for calculation of the requisite supermajority. NOTE: Protest petitions do not apply to text amendments.

4.1.4.4.2. To qualify as a protest under this section, the petition must be signed by the owners of either (i) twenty (20) percent or more of the area included in the proposed change; or (ii) five (5) percent of a one-hundred-foot-side buffer extending along the entire boundary of each discrete or separate area proposed to be rezoned (see Figure 1). A street right-of-way shall not be considered in computing the one-hundred-foot buffer area as long as that street right-of-way is one hundred (100) feet wide or less. When less than an entire parcel of land is subject to the proposed zoning map amendment, the one-hundred—foot buffer shall be measured from the property line of that parcel. In the absence of evidence to the contrary, the city may rely on the county tax listing to determine the "owners" of potentially qualifying areas.

Figure 1. Qualified Protests - Zoning Map Amendment

4.1.4.4.3. The foregoing provisions concerning protests shall not be applicable to any amendment which initially zones property added to the territorial coverage of the ordinance as a result of annexation or otherwise, or to an amendment to an adopted (i) special use district, (ii) conditional use district, or (iii) conditional district if the amendment does not change the types of uses that are permitted within the district or increase the approved density for residential development, or increase the total approved size of nonresidential development, or reduce the size of any buffers or screening approved for the special use district, conditional use district, or conditional district.

4.1.4.4.4. No protest against any change in or amendment to a zoning ordinance or zoning map shall be valid or effective for the purposes of N.C.G.S. 160A-385 unless it be in the form of a written petition actually bearing the signatures of the requisite number of property owners and stating that the signers do protest the proposed change or amendment, and unless it shall have been received by the city clerk in sufficient time to allow the city at least two normal work days, excluding Saturdays, Sundays and legal holidays, before the date established for a public hearing on the proposed change or amendment to determine the sufficiency and accuracy of the petition. All protest petitions shall be on a form prescribed and furnished by the city. Such form shall prescribe any reasonable information deemed necessary to permit the city to determine the sufficiency and accuracy of the petition. A person who has signed a protest petition may withdraw his or her name from the petition at any time prior to the vote on the proposed zoning amendment. Only those protest petitions that meet the qualifying standards set forth in N.C.G.S. 160A-385 at the time of the vote on the zoning amendment shall trigger the supermajority voting requirement.

4.1.4.5. Statement of consistency. Prior to adopting or rejecting any zoning text and/or map amendment, the city council shall adopt a statement describing whether its action is consistent with an adopted comprehensive plan and explaining why the city council considers the action taken to be reasonable and in the public interest. This statement is not subject to judicial review.

4.1.5. Withdrawal of application. An applicant may withdraw his or her application at any time by written notice to the UDO administrator and may resubmit at a subsequent date in compliance with the submittal schedule contained herein.

4.2.1. A vested right shall be established upon the approval or conditional approval of a site-specific development plan by the city council in accordance with the provisions outlined in this section. A right which has been vested as provided for in this section shall, as a general rule, remain valid for two (2) years and shall attach to and run with the land. The two (2) years may be extended up to five (5) years where warranted in light of all relevant circumstances, including, but not limited to, the size and phasing of development, the level of investment, the need for the development, economic cycles, and market conditions. These determinations shall be in the sound discretion of the city.

4.2.2. Unless otherwise specifically provided, or unless clearly required by the context, the words and phrases defined in this section shall have the meaning indicated when used in this section.

4.2.2.1. Landowner. Any owner of a legal or equitable interest in real property, including the heirs, devisees, successors, assigns, and personal representative of such owner. The landowner may allow a person holding a valid option to purchase to act as his agent or representative for purposes of submitting a proposed site-specific development plan.

4.2.2.2. Property. All real property subject to the regulations and restrictions of this ordinance as well as the zoning district boundaries established by this ordinance and depicted on the official zoning map.

4.2.2.3. Site-specific development plan. A site-specific development plan which has been submitted to t he City of Kinston by a landowner describing in detail the type and intensity of use for a specific parcel or parcels of property. Such plan shall be in the form of a site plan required to obtain a conditional use permit and shall include the information required by subsection 4.5.2 and subsection 5.6.4. All site-specific development plans shall be approved by the city council.

4.2.2.4. Vested right. The right to undertake and complete the development and use of property under the terms and conditions of an approved site specific development plan.

4.2.3. A vested right shall be deemed established upon the effective date of approval by the city council of a site-specific development plan. Following the approval of a site-specific development plan, the UDO administrator shall issue a vested right certificate to the landowner which indicates the duration of the vesting period, the conditions, if any, imposed on the approval of the site-specific development plan, and any other information determined by the UDO administrator to be necessary to administer the vested right.

4.2.4. A vested right shall confer upon the landowner the right to undertake and complete the development and use of the property as delineated in the approved site-specific development plan. The city council may approve a site-specific development plan upon such terms and conditions as may be determined necessary to protect the public health, safety, and welfare. Failure to comply with the approved terms and conditions shall result in a forfeiture of vested rights.

4.2.5. Approval by the city council of a site-specific development plan shall follow the procedural requirements for the issuance of a conditional use permit as outlined in section 4.5. Changes in or modifications to an approved site-specific development plan shall be made only with the concurrence of the city council in accordance with the provisions of subsection 4.5.8.

4.2.6. A vested right obtained under this section runs with the land and is valid for two (2) years from the effective date of approval by the city council of a site-specific development plan. A vested right shall not be extended by any amendments or modifications to an approved site-specific development plan unless expressly provided for by the city council. A vested right shall expire at the end of two (2) years if no building permit applications have been filed with the city to construct the use or uses proposed in the approved site-specific development plan. If building permits are issued, the provisions of N.C.G.S. 160A-418 and N.C.G.S. 160A-422 shall apply, except that a building permit shall not expire or be revoked because of the lack of progress during the two-year vesting period.

4.2.7. A vested right, once established or provided for in this section, precludes any zoning action by the city which would change, alter, impair, prevent, diminish, or otherwise delay the development or use of the property as set forth in this approved site-specific development plan, except:

4.2.7.1. With the written consent of the affected landowner;

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

4.2.7.3. To the extent that the affected landowner receives compensation for all costs, expenses, and other losses incurred by the landowner, including, but not limited to, all fees paid in consideration of financing, and all architectural, planning, marketing, legal, and other consultant's fees incurred after approval by the city, together with interest thereon at the legal rate until paid. Compensation shall not include any diminution in the value of the property which is caused by such action;

4.2.7.4. Upon findings, by ordinance after notice and a public hearing, that the landowner or his representative intentionally supplied inaccurate information or made material misrepresentations which made a difference in the approval by the city of the site-specific development plan; or

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

4.2.8. The establishment of a vested right shall not preclude the application of overlay zoning which imposes additional requirements but does not affect the allowable type or intensity of use, or ordinances or regulations which are general in nature and are applicable to all property subject to land use regulation by the city, including, but not limited to, building, fire, plumbing, electrical, and mechanical codes.

4.2.9. Notwithstanding any provisions of this section, the establishment of a vested right shall not preclude, change, or impair the authority of the city to enforce provisions of this ordinance governing nonconforming situations or uses.

4.2.10. A vested right obtained under this section is not a personal right, but shall attach to and run with the applicable property. After approval of a site-specific development plan, all successors to the original landowner shall be entitled to exercise such vested rights.

4.2.11. The city shall not require a landowner to waive his vested rights as a condition of developmental approval.

4.3.1. Temporary moratorium. The city may adopt temporary moratoria on any city development approval required by law. The duration of any moratorium shall be reasonable in light of the specific conditions that warrant imposition of the moratorium and may not exceed the period of time necessary to correct, modify, or resolve such conditions. Except in cases of imminent and substantial threat to public health or safety, before adopting an ordinance imposing a development moratorium with a duration of sixty (60) days or any shorter period, the governing board shall hold a public hearing and shall publish a notice of the hearing in a newspaper having general circulation in the area not less than seven days before the date set for the hearing. A development moratorium with a duration of sixty-one (61) days or longer, and any extension of a moratorium so that the total duration is sixty-one (61) days or longer, is subject to the notice and hearing requirements of N.C.G.S. 160A-364. Absent an imminent threat to public health or safety, a development moratorium adopted pursuant to this section shall not apply to any project for which a valid building permit issued pursuant to N.C.G.S. 160A-417 is outstanding, to any project for which a conditional use permit application or special use permit application has been accepted, to development set forth in a site-specific or phased development plan approved pursuant to N.C.G.S. 160A-385.1, to development for which substantial expenditures have already been made in good faith reliance on a prior valid administrative or quasi-judicial permit or approval, or to preliminary or final subdivision plats that have been accepted for review by the city prior to the call for public hearing to adopt the moratorium. Any preliminary subdivision plat accepted for review by the city prior to the call for public hearing, if subsequently approved, shall be allowed to proceed to final plat approval without being subject to the moratorium.

4.3.2. Ordinance establishing a development moratorium. Any ordinance establishing a development moratorium must expressly include at the time of adoption each of the following:

4.3.2.1. A clear statement of the problems or conditions necessitating the moratorium and what courses of action, alternative to a moratorium, were considered by the city and why those alternative courses of action were not deemed adequate.

4.3.2.2. A clear statement of the development approvals subject to the moratorium and how a moratorium on those approvals will address the problems or conditions leading to imposition of the moratorium.

4.3.2.3. An express date for termination of the moratorium and a statement setting forth why that duration is reasonably necessary to address the problems or conditions leading to imposition of the moratorium.

4.3.2.4. A clear statement of the actions, and the schedule for those actions, proposed to be taken by the city during the duration of the moratorium to address the problems or conditions leading to imposition of the moratorium.

4.3.3. Renewal or extension of moratorium. No moratorium may be subsequently renewed or extended for any additional period unless the city shall have taken all reasonable and feasible steps proposed to be taken by the city in its ordinance establishing the moratorium to address the problems or conditions leading to imposition of the moratorium and unless new facts and conditions warrant an extension. Any ordinance renewing or extending a development moratorium must expressly include, at the time of adoption, the findings set forth in sections 4.3.2.1 through 4.3.2.4, including what new facts or conditions warrant the extension.

4.3.4. Persons aggrieved by imposition of moratorium. Any person aggrieved by the imposition of a moratorium on development approvals required by law may apply to the appropriate division of the General Court of Justice for an order enjoining the enforcement of the moratorium, and the court shall have jurisdiction to issue that order. Actions brought pursuant to this section shall be set down for immediate hearing, and subsequent proceedings in those actions shall be accorded priority by the trial and appellate courts. In any such action, the city shall have the burden of showing compliance with the procedural requirements of this section.

4.4.1. Appeals.

4.4.1.1. Any person who has standing under N.C.G.S. 160A-393(d) or the city may appeal a decision to the board of adjustment. An appeal is taken by filing a notice of appeal with the city clerk. The notice of appeal shall state the grounds for the appeal. A notice of appeal shall be considered filed with the city clerk when delivered to the city hall, and the date and time of filing shall be entered on the notice by the city staff.

4.4.1.2. The official who made the decision shall give written notice to the owner of the property that is the subject of the decision and to the party who sought the decision, if different from the owner. The written notice shall be delivered by personal delivery, electronic mail, or by first-class mail.

4.4.1.3. The owner or other party shall have thirty (30) days from receipt of the written notice within which to file an appeal. Any other person with standing to appeal shall have thirty (30) days from receipt from any source of actual or constructive notice of the decision within which to file an appeal.

4.4.1.4. It shall be conclusively presumed that all persons with standing to appeal have constructive notice of the decision from the date a sign containing the words "Zoning Decision" or "Subdivision Decision" in letters at least six inches high and identifying the means to contact an official for information about the decision is prominently posted on the property for at least ten (10) days. Posting of signs is not the only form of constructive notice. Any such posting shall be the responsibility of the landowner or applicant. Verification of the posting shall be provided to the official who made the decision. Absent an ordinance provision to the contrary, posting of signs shall not be required.

4.4.1.3[5]. The official who made the decision shall transmit to the board of adjustment all documents and exhibits constituting the record upon which the action appealed from is taken. The official shall also provide a copy of the record to the appellant and to the owner of the property that is the subject of the appeal if the appellant is not the owner.

4.4.1.4[6]. An appeal of a notice of violation or other enforcement order stays enforcement of the action appealed from unless the official who made the decision certifies to the board of adjustment after notice of appeal has been filed that because of the facts stated in an affidavit, a stay would cause immediate peril to life or property or because the violation is transitory in nature, a stay would seriously interfere with enforcement of the ordinance. 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 of adjustment shall meet to hear the appeal within fifteen (15) days after such a request is filed. Notwithstanding the foregoing, appeals of decisions granting permit or otherwise affirming that a proposed use of property is consistent with the ordinance shall not stay the further review of an application for permits or permissions to use such property; in these situations, the appellant may request and the board of adjustment may grant a stay of a final decision of permit applications or building permits affected by the issue being appealed.

4.4.1.6[7]. Subject to the provisions of subsection 4.4.1.5, the board of adjustment shall hear and decide the appeal within a reasonable time.

4.4.1.5[8]. The official who made the decision shall be present at the hearing as a witness. The appellant shall not be limited at the hearing to matters stated in the notice of appeal. If any party or the city would be unduly prejudiced by the presentation of matters not presented in the notice of appeal, the board of adjustment shall continue the hearing. The board of adjustment 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 of adjustment shall have all the powers of the official who made the decision.

4.4.1.6[9]. When hearing an appeal pursuant to N.C.G.S. 160A-400.9(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 N.C.G.S. 160A-393(k).

4.4.1.7[10]. The parties of an appeal that has been made under this section may agree to mediation or other forms of alternative dispute resolution. The ordinance may set standards and procedures to facilitate and manage such voluntary alternative dispute resolution.

4.4.2. Variances.

4.4.2.1. An application for a variance shall be submitted to the board of adjustment by filing a copy of the application with the UDO administrator. Applications shall be handled in the same manner as applications for permits.

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

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

4.4.2.2.2. 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.

4.4.2.2.3. 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.

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

4.4.2.3. No change in permitted uses may be authorized by variance. Appropriate conditions may be imposed on any variance, provided that the conditions are reasonably related to the variance. Any other ordinance that regulates land use or development may provide for variances consistent with the provisions of this section.

4.4.2.4. The nature of the variance and any conditions attached to it shall be entered on the face of the zoning permit, or the zoning permit may simply note the issuance of the variance and refer to the written record of the variance for further information. All such conditions are enforceable in the same manner as any other applicable requirement of this ordinance.

4.4.3. Interpretations.

4.4.3.1. The board of adjustment is authorized to interpret the zoning map and to act upon disputed questions of lot lines or district boundary lines and similar questions. If such questions arise in the context of an appeal from a decision of the UDO administrator, they shall be handled as provided in subsection 4.4.1.

4.4.3.2. An application for a map interpretation shall be submitted to the board of adjustment by filing an appeal form with UDO administrator. The application shall contain sufficient information to enable the board of adjustment to make the necessary interpretation.

4.4.3.3. Where uncertainty exists as to the boundaries of districts as shown on the official zoning map, the rules of interpretation as specified in section [2.5] shall be applied. Where uncertainties continue to exist after application of the above rules, appeal may be taken to the board of adjustment as provided in subsection 4.4.1 of this ordinance.

4.4.3.4. Interpretations of the location of floodway and floodplain boundary lines may be made by the UDO administrator as provided in article 9, part IX.

4.4.4. Requests to be heard expeditiously. As provided in article 3, the planning board and board of adjustment (as applicable) shall hear and decide all applications, appeals, variance requests, and requests for interpretations, including map boundaries, as expeditiously as possible, consistent with the need to follow regularly established agenda procedures, provide notice in accordance with subsection 4.4.6, and obtain the necessary information to make sound decisions.

4.4.5. Hearing required on appeals, variances, and interpretations.

4.4.5.1. Before making a decision on an appeal or an application for a variance or interpretation, the board of adjustment shall hold a hearing on the appeal or application within thirty (30) days of the submittal of a completed appeal or application.

4.4.5.2. Subject to subsection 4.4.5.3, the hearing shall be open to the public and all persons interested in the outcome of the appeal or application shall be given an opportunity to present evidence and arguments. All persons presenting evidence or arguments shall be sworn in prior to the presentation of any evidence or arguments. The oath may be administered by the chairperson, any member acting as chairperson, or the clerk to the board.

4.4.5.3. The board of adjustment may place reasonable and equitable limitations on the presentation of evidence and arguments and the cross-examination of witnesses so that the matter at issue may be heard and decided without undue delay.

4.4.5.4. The board of adjustment may continue the hearing until a subsequent meeting and may keep the hearing open to take additional information up to the point a final decision is made. No further notice of a continued hearing need be published unless a period of six (6) weeks or more elapses between hearing dates.

4.4.5.5. The required application fee and all supporting materials must be received by the UDO administrator before an application is considered complete and a hearing scheduled.

4.4.6. Notice of hearing. The UDO administrator shall give notice of any hearing required by subsection 4.4.5 as follows:

4.4.6.1. Notice of hearings conducted pursuant to this section 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 this ordinance. In the absence of evidence to the contrary, the city may [rely] on the county tax listing to determine owners of property entitled to mailed notice. The notice must be deposited in the mail at least ten (10) days, but not more than twenty-five (25) days, prior to the date of the hearing. Within that same time period, the city 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.

4.4.6.2. In the case of conditional use permits, notice shall be given to other potentially interested persons by publishing a notice in a newspaper having general circulation in the area one (1) time not less than ten (10) nor more than twenty-five (25) days prior to the hearing.

4.4.6.3. The notice required by this section shall state the date, time, and place of the hearing, reasonably identify the lot that is the subject of the application or appeal, and give a brief description of the action requested or proposed.

4.4.7. Burden of proof in appeals and variances.

4.4.7.1. When an appeal is taken to the board of adjustment in accordance with subsection 4.4.1, the UDO administrator shall have the initial burden of presenting to the board of adjustment sufficient evidence and argument to justify the order or decision appealed from. The burden of presenting evidence and argument to the contrary then shifts to the appellant, who shall also have the burden of persuasion.

4.4.7.2. The burden of presenting evidence sufficient to allow the board of adjustment to reach the conclusions set forth in subsection 4.4.2.2, as well as the burden of persuasion on those issues, remains with the applicant seeking the variance.

4.4.8. Board of adjustment action. The concurring vote of four-fifths ( 4/5 ) of the board of adjustment 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 section, vacant positions on the board and members who are disqualified from voting on a quasi-judicial matter shall not be considered members of the board for calculation of the requisite majority.

4.4.9. Evidence/presentation of evidence.

4.4.9.1. The provisions of this section apply to all hearings for which a notice is required by subsection 4.4.6.

4.4.9.2. All persons who intend to present evidence to the board of adjustment shall be sworn in by the chairperson. The chairperson of the board or any member acting as chairperson and the clerk to the board are authorized to administer oaths to witnesses in any matter coming before the board. Any person who, while under oath during a proceeding before the board of adjustment, willfully swears falsely is guilty of a Class 1 misdemeanor.

4.4.9.3. All findings and conclusions necessary to the issuance or denial of the requested permit or appeal (necessary findings) shall be based upon competent, material, and substantial evidence.

4.4.9.4. The entirety of a quasi-judicial hearing and deliberation shall be conducted in open session.

4.4.9.5. Parties to a quasi-judicial hearing have a right to cross-examine witnesses.

4.4.9.6. Factual findings must not be based on hearsay evidence which would be inadmissible in a court of law.

4.4.9.7. If a board of adjustment member has prior or specialized knowledge about a case, that knowledge should be disclosed to the rest of the board of adjustment and parties at the beginning of the hearing.

4.4.9.8. The board of adjustment through the chairperson, or in the chairperson's absence, anyone acting as the chairperson may subpoena witnesses and compel the production of evidence. To request issuance of a subpoena, persons with standing under N.C.G.S. 160A-393(d) may make a written request to the chairperson explaining why it is necessary for certain witnesses or evidence to be compelled. The chairperson shall issue requested subpoenas he or she determines to be relevant, reasonable in nature and scope, and not oppressive. The chairperson shall rule on any motion to quash or modify a subpoena. Decisions regarding subpoenas made by the chairperson may be appealed to the full board of adjustment. If a person fails or refuses to obey a subpoena issued pursuant to this section, the board of adjustment or the party seeking the subpoena may apply to the general court of justice for an order requiring that its subpoena be obeyed, and the court shall have jurisdiction to issue these orders after notice to all property parties.

4.4.10. Modification of application at hearing.

4.4.10.1. In response to questions or comments made in sworn testimony at the hearing, the applicant may agree to modify his application, including the plans and specifications submitted.

4.4.10.2. Unless such modifications are so substantial or extensive that the board of adjustment cannot reasonably be expected to perceive the nature and impact of the proposed changes without revised plans before it, the board of adjustment may approve the application with the stipulation that the permit will not be issued until plans reflecting the agreed upon changes are submitted to the UDO administrator.

4.4.11. Record.

4.4.11.1. A record shall be made of all hearings required by subsection 4.4.5 and such recordings shall be kept as provided by state law, but a transcript need not be made. Minutes shall also be kept of all such proceedings, but a transcript need not be made.

4.4.11.2. Whenever practicable, all documentary evidence, including any exhibits, presented at a hearing as well as all other types of physical evidence shall be made a part of the record of the proceedings and shall be kept by the city in accordance with the North Carolina Department of Cultural Resources requirements (N.C.G.S. 132-8).

4.4.12. Quasi-judicial decision. The board shall determine contested facts and make its decision within a reasonable time. Every quasi-judicial decision shall be based upon competent, material, and substantial evidence in the record. Each quasi-judicial decision shall be reduced to writing and reflect the board's determination of contested facts and their application to the applicable standards. The written decision shall be signed by the chair or other duly authorized member of the board. A quasi-judicial decision is effective upon filing the written decision within the clerk to the board or such other office or official as this ordinance species. The decision of the board shall be delivered by personal delivery, electronic mail, or by first-class mail to the applicant, property owner, and to any person who has submitted a written request for a copy, prior to the date the decision becomes effective. The person required to provide notice shall certify that proper notice has been made.

4.5.1. Purpose and applicability. This ordinance provides for a number of uses to be located by right in each general zoning district subject to the use meeting certain area, height, yard, and off-street parking and loading requirements. In addition to these uses, this ordinance allows some uses to be allowed in these districts as a conditional use subject to issuance of a conditional use permit by the city council upon recommendation of the planning board. The purpose of having the uses being conditional is to ensure that they would be compatible with surrounding development and in keeping with the purposes of the general zoning district in which they are located and would meet other criteria as set forth in this section. All conditional use permits require some form of a site plan as outlined in subsection 5.6.4.

4.5.2. Application process/completeness.

4.5.2.1. The deadline for which a conditional use permit application shall be filed with the UDO administrator is twenty (20) calendar days prior to the meeting at which the application will be heard. Permit application forms shall be provided by the UDO administrator. In the course of evaluating the proposed conditional use, the planning board or city council may request additional information from the applicant. A request for any additional information may stay any further consideration of the application by the planning board or city council.

4.5.2.2. No application shall be deemed complete unless it contains or is accompanied by a site plan drawn to scale which complies with the requirements contained in subsection 5.6.4 and a fee, in accordance with a fee schedule approved by the city council for the submittal of conditional use permit applications.

4.5.2.3. One (1) hard copy of the application, and all attachments and maps, for a conditional use permit shall be submitted to the UDO administrator.

4.5.3. Planning board review and comment.

4.5.3.1. The planning board may, in its review, suggest reasonable conditions to the location, nature, and extent of the proposed use and its relationship to surrounding properties, parking areas, driveways, pedestrian and vehicular circulation systems, screening and landscaping, timing of development, and any other conditions the planning board may find appropriate. The conditions may include dedication of any rights-of-way or easements for streets, water, sewer, or other public utilities necessary to serve the proposed development.

4.5.3.2. The planning board shall forward its recommendation to the city council within forty-five (45) days of reviewing the application. If a recommendation is not made within forty-five (45) days, the application shall be forwarded to the city council without a recommendation from the planning board.

4.5.3.3. All comments prepared by the planning board shall be submitted by a planning board representative to the city council as evidence at the public hearing required by this section. This representative of the planning board shall be subject to the same scrutiny as other witnesses. Review of the conditional use application by the planning board shall not be a quasi-judicial procedure. The planning board shall include in its comments a statement as to the consistency of the application with the city's currently adopted comprehensive plan. Comments of the planning board shall be considered with other evidence submitted at the public hearing.

4.5.4. City council action.

4.5.4.1. City council consideration of conditional use permits are quasi-judicial decisions approved by a simple majority vote. Quasi-judicial decisions must be conducted in accordance with sections 4.4.9 through 4.4.12. For the purposes of this section, vacant positions on the city council and members who are disqualified from voting on a quasi-judicial matter shall not be considered (members of the council) for calculation of the requisite majority if there are no qualified alternates available to take the place of such members.

4.5.4.2. Once the comments of the planning board have been made, or the forty-five-day period elapses without a recommendation, the city council shall hold a public hearing to consider the application at its next regularly scheduled meeting. A quorum of the city council is required for this hearing. Notice of the public hearing shall be as specified in subsection 4.4.6. In addition, notice shall be given to other potentially interested persons by publishing a notice one time in a newspaper having general circulation in the area not less than ten (10) nor more than twenty-five (25) days prior to the hearing.

4.5.4.3. In approving an application for a conditional use permit in accordance with the principles, conditions, safeguards, and procedures specified herein, the city council may impose reasonable and appropriate conditions and safeguards upon the approval. The petitioner will have a reasonable opportunity to consider and respond to any additional requirements prior to approval or denial by the city council.

4.5.4.4. The applicant has the burden of producing competent, material and substantial evidence tending to establish the facts and conditions which subsection 4.5.4.5 below requires.

4.5.4.5. The city council shall issue a conditional use permit if it has evaluated an application through a quasi-judicial process and determined that:

4.5.4.5.1. The establishment, maintenance, or operation of the conditional use will not be detrimental to or endanger the public health, safety, or general welfare.

4.5.4.5.2. The conditional use will not be injurious to the use and enjoyment of other property in the immediate vicinity for the purposes already permitted, nor diminish or impair property values within the neighborhood.

4.5.4.5.3. The establishment of the conditional use will not impede the normal and orderly development and improvement of the surrounding property for uses permitted in the district.

4.5.4.5.4. The exterior architectural appeal and functional plan of any proposed structure will not be so at variance with either the exterior architectural appeal and functional plan of the structures already constructed or in the course of construction in the immediate neighborhood or the character of the applicable district, as to cause a substantial depreciation in the property values within the neighborhood.

4.5.4.5.5. Adequate utilities, access roads, drainage, parking, or necessary facilities have been or are being provided.

4.5.4.5.6. Adequate measures have been or will be taken to provide ingress and egress so designed as to minimize traffic congestion in the public streets.

4.5.4.5.7. The conditional use shall, in all other respects, conform to all the applicable regulations of the district in which it is located.

4.5.4.5.8. Public access shall be provided in accordance with the recommendations of the city's land use plan and access plan or the present amount of public access and public parking as exists within the city now. If any recommendations are found to conflict, the system requiring the greatest quantity and quality of public access, including parking, shall govern.

4.5.4.5.9. The proposed use shall be consistent with recommendation and policy statements as described in the adopted land use plan.

4.5.4.6. Conditions and guarantees. Prior to the granting of any conditional use, the planning board may recommend, and the city council may require, conditions and restrictions upon the establishment, location, construction, maintenance, and operation of the conditional use as is deemed necessary for the protection of the public interest and to secure compliance with the standards and requirements specified above. In all cases in which conditional uses are granted, the city council shall require guarantees as specified in subsection 5.7.4.7.1.1 or 5.7.4.7.1.2 to ensure compliance with the conditional use permit conditions.

4.5.4.7. In the event that a rezoning is sought in conjunction with a conditional use permit, such deliberation would be legislative in nature and not part of the quasi-judicial process.

4.5.5. Effect of approval. If an application for a conditional use permit is approved by the city council, the owner of the property shall have the ability to develop the use in accordance with the stipulations contained in the conditional use permit, or develop any other use listed as a permitted use for the general zoning district in which it is located.

4.5.6. Binding effect. Any conditional use permit so authorized shall be binding to the property included in the permit unless subsequently changed or amended by the city council.

4.5.7. Certificate of occupancy. No certificate of occupancy for a use listed as a conditional use shall be issued for any building or land use on a piece of property which has received a conditional use permit for the particular use unless the building is constructed or used, or the land is developed or used, in conformity with the conditional use permit approved by the city council. In the event that only a segment of a proposed development has been approved, the certificate of occupancy shall be issued only for that portion of the development constructed or used as approved.

4.5.8. Change in conditional use permit. An application to materially change a conditional use permit once it has been issued must first be submitted, reviewed, and approved in accordance with subsection 4.5.3 and 4.5.4, including payment of a fee in accordance with the fee schedule approved by the city council.

4.5.9. Additional requirements on conditional use permits.

4.5.9.1. Subject to subsection 4.5.9.2, in grant[ing] a conditional use permit, the city council may attach to the permit such reasonable requirements in addition to those specified in this ordinance as will ensure that the development in its proposed location:

4.5.9.1.1. Will not endanger the public health or safety;

4.5.9.1.2. Will not injure the value of adjoining or abutting property;

4.5.9.1.3. Will be in harmony with the existing development and uses within the area in which it is to be located; and

4.5.9.1.4. Will be in conformity with the land use plan, thoroughfare plan, or other plan officially adopted by the city council.

4.5.9.2. The city council may not attach additional conditions that modify or alter the specific requirements set forth in this ordinance unless the development in question presents extraordinary circumstances that justify the variation from the specified requirements.

4.5.9.3. Without limiting the foregoing, the city council may attach to a permit a condition limiting the permit to a specified duration.

4.5.9.4. All additional comments or requirements shall be entered on the permit.

4.5.9.5. All additional conditions or requirements authorized by this section are enforceable in the same manner and to the same extent as any other applicable requirements of this ordinance.

4.5.10. Implementation of conditional use permit. A conditional use permit, after approval by the planning board and city council shall expire six (6) months after the approval date if work has not commenced or in the case of a change of occupancy the business has not opened; however, it may be, on request, continued in effect for a period not to exceed six (6) months by the UDO administrator. No further extension shall be added except on approval of the city council. If such use or business is discontinued for a period of twelve (12) months, the conditional use permit shall expire. Any expiration as noted or any violation of the conditions stated on the permit shall be considered unlawful and the applicant will be required to submit a new conditional use application to the appropriate agencies for consideration and the previously approved conditional use permit shall become null and void.

4.6.1. Zoning and conditional use permits shall expire automatically if, within one (1) year after the issuance of such permits:

4.6.1.1. The use authorized by such permits has not commenced, in circumstances where no substantial construction, erection, alteration, excavation, demolition, or similar work is necessary before commencement of such use; or

4.6.1.2. Less than ten (10) percent of the total cost of all construction, erection, alteration, excavation, demolition, or similar work on any development authorized by such permits has been completed on the site. With respect to phased development, this requirement shall apply only to the first phase.

4.6.2. If after some physical alteration to land or structures begins and such work is discontinued for a period of one (1) year, then the zoning or conditional use permit authorizing such work shall immediately expire. However, expiration of the permit shall not affect the provisions of section 4.7.

4.6.3. The permit-issuing authority may extend for a period up to six (6) months the date when a zoning or conditional use permit would otherwise expire pursuant to sections 4.6.1 or 4.6.2 if it concludes that (i) the permit has not yet expired, (ii) the permit recipient has proceeded with due diligence and in good faith, and (iii) conditions have not changed so substantially as to warrant a new application. Successive extensions may be granted for periods up to six (6) months (for a total period not to exceed two (2) years) upon the same findings. All such extensions may be granted without resort to the formal processes and fees required for a new permit.

4.6.4. For purposes of this section, the conditional use permit within the jurisdiction of the board of adjustment is issued when such board votes to approve the application and issue the permit. A zoning permit within the jurisdiction of the zoning administrator is issued when the earlier of the following takes place:

4.6.4.1. A copy of the fully executed permit is delivered to the permit recipient and delivery is accomplished when the permit is hand delivered or mailed to the permit applicant; or

4.6.4.2. The UDO administrator notifies the permit applicant that the application has been approved and that all that remains before a fully executed permit can be delivered is for the applicant to take certain specified actions, such as having the permit executed by the property owner so it can be recorded if required.

4.6.5. Notwithstanding any of the provisions of article 8 (Nonconforming situations), this section shall be applicable to permits issued prior to the date this section becomes effective.

4.6.6. Conditional use permits shall expire at the end of the two-year vesting period established in accordance with section 4.2, Vested right.

4.7.1. Zoning and conditional use permits authorize the permittee to make use of land and structures in a particular way. Such permits are transferable. However, so long as the land or structures or any portion thereof covered under a permit continues to be used for the purposes for which the permit was granted, then:

4.7.1.1. No person (including successors or assigns of the person who obtained the permit) may make use of the land or structures covered under such permit for the purposes authorized in the permit except in accordance with all the terms and requirements of that permit; and

4.7.1.2. The terms and requirements of the permit apply to and restrict the use of land or structures covered under the permit, not only with respect to all persons having any interest in the property at the time the permit was obtained, but also with respect to persons who subsequently obtain any interest in all or part of the covered property and wish to use it for or in connection with purposes other than those for which the permit was originally issued, so long as the persons who subsequently obtain an interest in the property had actual or record notice (as provided in subsection 4.7.2) of the existence of the permit at the time they acquired their interest.

4.7.2. Whenever a special use or conditional use permit is issued to authorize development (other than single-family or two-family residences) on a tract of land in excess of one (1) acre, nothing authorized by the permit may be done until the record owner of the property signs a written acknowledgment that the permit has been issued so that the permit may be recorded in the Lenoir County Registry and indexed under the record owner's name as grantor.

When an application involving a quasi-judicial procedure/petition is denied by the city council or board of adjustment, reapplication involving the same property, or portions of the same property, may not be submitted unless the petitioner can demonstrate a substantial change in the proposed use, conditions governing the use of the property, or conditions surrounding the property itself.

4.9.1. Every quasi-judicial decision shall be subject to review by the Superior Court of Lenoir County by proceedings in the nature of certiorari pursuant to G.S. 160A-393.

4.9.2 A petition for review shall be filed with the Lenoir County Clerk of Superior Court by the later of thirty (30) days after the decision is effective or after a written copy thereof is given in accordance with subsection 4.4.12. When first class mail is used to deliver notice, three (3) days shall be added to the time to file the petition.

4.9.3. A copy of the writ of certiorari shall be served upon the City of Kinston.