The code enforcement officer or such other town employee designated by the town manager shall administer and enforce this chapter. He may be provided with the assistance of such other persons as the town manager may direct. The code enforcement officer or such other town employee designated by the town manager shall have all necessary authority to administer and enforce this chapter, including the ordering in writing of the remedying of any condition found in violation of this chapter, and the bringing of legal action to ensure compliance with this chapter, including injunction, abatement, or other appropriate action or proceeding.

(Code 1990, § 20-21; Ord. No. 89-11, 4-17-1989; Ord. No. 02-21, § 20-21, 10-7-2002)

(a)

If it is found that any of the provisions of this chapter are being violated, the code enforcement officer or such other town employee designated by the town manager shall notify, in writing, the person responsible for such violations, indicating the nature of the violations, and ordering the action necessary to correct it. He shall order discontinuance of illegal use of land, buildings, or structures; removal of illegal buildings or structures or of additions, alterations, or structural changes thereto; discontinuance of any illegal work being done; or shall take any other action authorized by ordinance to ensure compliance with this chapter or to prevent violations of this chapter.

(1)

While any commercial or multifamily site plan is being reviewed by the town planning board or any zoning request is pending before the planning board, if a zoning or subdivision ordinance violation is located on the site being reviewed or which is the subject of the rezoning request, then the planner shall inform the code enforcement officer or such other town employee designated by the town manager who shall investigate and determine:

a.

Whether there is probable cause to believe that a zoning or subdivision violation exists.

b.

If a violation is found or probable cause to believe a violation has occurred is made by the code enforcement officer or such other town employee designated by the town manager, then the owner shall be notified of the nature of the violation and the action required to correct the same within the time period specified by the notice sent by the code enforcement officer or such other town employee designated by the town manager.

c.

If corrective action is not implemented, then the code enforcement officer or such other town employee designated by the town manager shall use any lawful means to terminate the violation.

(2)

Site plan violations. The town manager or his designee shall investigate any alleged violations of an approved site specific development plan, including, but not limited to, any preliminary and final commercial or project site plan, conditions of approval agreed upon by the applicant and contained in the review record during either planning board or council review, and violations of special use permits. If a violation is verified by the investigating town official and an administrative approval has not been granted or is not forthwith granted pursuant to this Code by the town planner or such other town employee designated by the town manager, then the town manager or his designee shall issue a stop order describing the project work or activity and setting forth the action necessary to cure the violation or steps necessary to bring the project into compliance with the town approvals and permits.

(b)

Upon notification to the applicant of the stop order by the town manager or his designee as provided in subsection (a)(2) of this section, the applicant, its employees, agents, contractors, subcontractors, independent contractors and any person or entity engaged in the activity or work described in the stop order shall immediately cease work or activity within the geographical area of the project described in the stop order or cease the specific activity or activities described in the stop order. No project work or activity described in the stop order or in a geographic area described in the stop order shall be continued after notification has been given to the project employee or agent of the applicant, and no work or activity within the scope of the stop order shall be recommenced until the violation has been corrected in accordance with the stop order.

(c)

A violation of the stop order shall be punishable by a civil penalty not exceeding $500.00 per day for each day or portion thereof that work or activity continues after the issuance of the stop order and notification thereof as provided herein. Each day shall constitute a separate and distinct violation. The remedy of a civil action in the nature of a debt to collect the civil penalties shall be in addition to the remedy of injunction for a violation of the stop order or a violation of the town approvals or permits.

(d)

The scope of the stop order shall be that necessary, as determined by the town manager or his designee, to effect compliance by the developer and applicant with the approved site specific development plan, permits and conditions of approval by satisfying the requirements to cure or correct the violation as set forth in the stop order; the scope may include the authority to stop the activity or work on the specific object of the violation or within the geographical area of the violation, or with the phase in which the violation has occurred or within the entire project boundary or any portion thereof as well as stopping the specific and entire activity within the project boundary.

(e)

Until the corrective action has been completed or the violation ceases, the planning board shall make no recommendation of approval, conditional approval or disapproval of the rezoning application or of the site plan or of the multifamily project plan, and any time limits applicable to the review of the site plan or the zoning amendment shall be suspended from the date of the notice of the violation by the town manager or his designee until the violation has been corrected, or a court of final jurisdiction determines there is no violation, or a variance has been granted by the appropriate governmental body or agency.

(Code 1990, § 20-22; Ord. of 8-18-1986, § 8.04; Ord. No. 89-18, 12-19-1988; Ord. No. 89-11, 4-17-1989; Ord. No. 98-8, 3-2-1998; Ord. No. 02-21, § 20-22, 10-7-2002; Ord. No. 07-11, § 20-22, 5-7-2007; Ord. No. 21-03, Att., 4-6-2021)

State Law reference— Remedies for violation of zoning ordinances, 160D-404(c).

(a)

All applications, site plans, planned unit development plans, or other plans required by this chapter to be presented to the town shall be accompanied by a fee. This fee shall be payable to the town. The fee required by this section shall be the amount specified in the regularly adopted fee schedule of the town.

(b)

If a preplanning fee is paid, and a preplanning conference is held and the applicant does not present a final site plan for review with the remainder of the review fee within 18 months, the process is nullified and the initial payment is forfeited.

(c)

The property owner or applicant shall be charged the cost of consultants or specialists required by the planning board for the purpose of reviewing the proposed project and the cost of any special meetings of the planning board held upon the request of the applicant. All review costs and fees shall be paid to the town by the property owner or the applicant prior to the final vote of the planning board. The special meeting fee shall be set forth on the town fee schedule as adopted and amended by the town council.

(Code 1990, § 20-23; Ord. of 8-18-1986, § 8.06; Ord. No. 94-13, 8-1-1994)

(a)

The town council may, on its own motion or upon motion or upon petition by any person within the zoning jurisdiction of the town, after public notice and hearing, amend, supplement, change, modify or repeal this chapter or the maps which are part of this chapter, subject to the rules prescribed in this chapter. No regulation or map shall be amended, supplemented, changed, modified or repealed until after a public hearing in relation thereto, at which parties in interest and citizens shall have an opportunity to be heard. A notice of such hearing shall be given once a week for two successive calendar weeks in a newspaper of general circulation in the town. The notice shall be published for the first time and for the periods required and in accordance with G.S. 160D-601. At a minimum, the owner of the property for which the map amendment is sought (or his agent) and all adjoining property owners shall be mailed notice of the public hearing at least ten days prior to the date of the hearing for any map amendment. For the purpose of applying this standard, an adjoining property is deemed to be any parcel that abuts the subject property or is separated from the subject property by street or other transportation corridor. For a zoning map amendment, notice of the public hearing shall be prominently posted on the subject parcel at least ten, but not more than 25 days prior to the date of the public hearing.

(b)

In case of a protest against an amendment, supplement, change, modification, or repeal signed by the owners of 20 percent or more either of the area of the land included in such proposed change, or of the land immediately adjacent thereto extending 100 feet therefrom, or of the land directly opposite thereto extending 100 feet from the street frontage of such opposite land, such amendment shall not become effective except by favorable vote of three-fourths of all members of the town council.

(c)

Every proposed amendment, supplement, change, modification or repeal to this chapter shall be referred to the planning board for its recommendation and report. If no written report is received from the planning board within 30 days of referral of the amendment to that board, the governing board may act on the amendment without the planning board recommendation. All petitions for a change in the zoning map shall include a legal description of the property involved and the names and addresses of current abutting property owners.

(d)

When conducting a review of proposed zoning text or map amendments, the planning board shall advise and comment on whether the proposed action is consistent with the approved land plan that has been adopted. The planning board shall provide a written recommendation to the governing board 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 governing board.

(e)

A fee shall be paid to the town in accordance with the adopted fee schedule for each application for amendment to this chapter to cover the costs of advertising and other administrative expenses involved.

(Code 1990, § 20-24; Ord. of 8-18-1986, art. X; Ord. No. 89-28, 11-6-1989; Ord. No. 90-5, § 6(j), 4-23-1990; Ord. No. 02-24, § 20-24, 10-7-2002; Ord. No. 07-30, 11-5-2007; Ord. No. 21-03, Att., 4-6-2021)

State Law reference— Amendments, G.S. 160D-601—160D-604.

It is the intention of this division that all questions arising in connection with the enforcement of this chapter shall be presented first to the town planner for consideration and that such questions shall be presented to the board of adjustment only on appeal from a decision of an administrative official charged with the enforcement of this chapter, and that from the decision of the board of adjustment, recourse shall be had to the courts, as provided by law. It is further the intention of this division that appeals from a decision of a building inspector, related to this chapter but not pertaining to the state building code or state building laws shall be taken to the board of adjustment, and that from the decision of the board of adjustment, recourse shall be had to the courts, as provided by law; except that it shall be the duty of the town council to consider any amendments to this chapter, applications for special use permits or site plans as provided by this chapter and any other duty not specifically delegated to the board of adjustment herein.

(Code 1990, § 20-36; Ord. of 8-18-1986, art. IX; Ord. No. 05-06, § 20-36, 4-6-2005; Ord. No. 13-07, 10-7-2013; Ord. No. 21-03, Att., 4-6-2021)

(a)

The board of adjustment is established and shall consist of five members, including the chairperson, who shall be residents of the town. Members shall be appointed by the town council.

(b)

Members shall serve terms of three years, with terms staggered to ensure that all members' terms do not expire concurrently. Vacancies occurring for reasons other than expirations of terms shall be filled as they occur for the period of the unexpired term. Members may be removed for cause by the town council upon presentation of written charges and after providing for a hearing thereon. The members of the board may be compensated for expenses incurred in the performance of their duties according to the reimbursement schedule which may be adopted by the town council from time to time. The board of adjustment is authorized to expend funds to obtain legal advice or other professional services necessary to discharge their duties.

(c)

In addition to the five regular members of the board of adjustment, the town council may appoint two alternate members for terms of three years. Alternate members shall be appointed for the same term, at the same time, and in the same manner as regular members. An alternate member may sit and deliberate in the place of an absent regular member, and an alternate member sitting on the board in place of an absent member shall have all the rights, privileges, and duties, including the right and power to vote, as the absent regular member, except that an alternate member sitting for an absent chairperson shall not exercise the duties, rights and privileges of the position of chairperson unless the vice-chairperson is also absent. Alternate members may be removed for cause by the town council upon presentation of written charges and after providing for a hearing.

(d)

It shall be the duty of any regular board member to notify the chairperson and an alternate of an anticipated absence from any duly called meeting of the board of adjustment.

(Code 1990, § 20-37; Ord. of 8-18-1986, § 9.01; Ord. No. 05-06, § 20-37, 4-6-2005; Ord. No. 13-07, 10-7-2013; Ord. No. 18-05, 6-4-2018; Ord. No. 21-03, Att., 4-6-2021)

State Law reference— Board of adjustments, G.S. 160D-302.

(a)

The town council shall designate one of the board of adjustment members as chairperson and another as vice-chairperson, each of whom shall serve for one year, or until a successor is designated. The board may adopt from time to time such rules and regulations as it may deem necessary to carry into effect the provisions of this subsection.

(b)

All meetings of the board shall be held at a regular place and shall be open to the public. A quorum of four members shall be present at the designated meeting place before a vote is taken or final disposition of any appeal is made upon which the board is required to pass. The board shall keep minutes of its proceedings, showing the vote of each member upon each question, or if absent or failing to vote, an indication of such fact; and the final disposition of appeals shall be by recorded resolution indicating the reasons of the board therefor all of which shall be a public record.

(Code 1990, § 20-38; Ord. of 8-18-1986, §§ 9.02, 9.03; Ord. No. 13-07, 10-7-2013)

(a)

The jurisdiction of the board of adjustment is limited to questions and issues concerning this chapter, and the board shall hear administrative appeals and variance requests related thereto.

(b)

Voting. The concurring vote of four-fifths of the board shall be necessary to grant a variance. A majority of the board members shall be required to reverse any decision of an administrative official charged with the enforcement of this chapter or decide in favor of the applicant a matter upon which the board is required to pass under this chapter.

(c)

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 with the clerk to the board. 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.

(d)

The board of adjustment may not pass on any question, issue, appeal or variance request related to amendments of this chapter, the issuance of a conditional or special use permit or violations or orders related thereto, or review of site plans, such powers having been specifically reserved by the town council and not delegated to the board. Decisions rendered by the town council are not subject to review by the board of adjustment.

(e)

The chairperson of the board of adjustment or any member temporarily acting as chairperson, and the clerk to the board are authorized to administer oaths to witnesses in any matter coming before the board.

(f)

The board of adjustment through the chair, or any member temporarily acting as chair, may subpoena witnesses and compel the production of evidence. To request issuance of a subpoena, persons 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/she determines to be relevant, reasonable in nature and scope, and not oppressive. The chair shall rule on any motion to quash or modify a subpoena. Decisions regarding subpoenas made by the chair may be appealed to the full board of adjustment.

(Code 1990, § 20-39; Ord. of 8-18-1986, § 9.04; Ord. No. 89-11, 4-17-1989; Ord. No. 05-06, § 20-39, 4-6-2005; Ord. No. 06-14, § 20-39, 8-7-2006; Ord. No. 13-07, 10-7-2013; Ord. No. 14-03, 3-3-2014; Ord. No. 21-03, Att., 4-6-2021)

State Law reference— Similar provisions, G.S. 160D-302, G.S. 160D-405, G.S. 160D-406, G.S. 160D-705.

(a)

Interpretations. The board shall interpret zoning maps and pass upon disputed questions of lot lines or district boundary lines and similar questions that may arise in the administration of this chapter. The board shall hear and decide all matters referred to it or upon which it is required to pass under this chapter.

(b)

Appeals. Pursuant to its powers and duties, the board of adjustment shall hear and decide appeals decisions of administrative officials charged with the enforcement of this chapter. As used in this section, the term "decision" includes any final and binding order, requirement, or determination.

(1)

Any person who has standing under G.S. 160D-1402(c) or the Town of Kitty Hawk may appeal a decision to the board of adjustment. A written notice of appeal stating the grounds for the appeal must be filed with the town clerk.

(2)

The official who made the decision must 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 must be delivered by personal delivery, electronic mail, or by first-class mail.

(3)

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 that is the subject of the decision, provided the sign remains on the property for at least ten 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.

(4)

The owner or other party shall have 30 days from receipt of the written notice 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 decision within which to file an appeal. In the absence of evidence to the contrary, notice given 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.

(5)

The official who made the decision must transmit to the board all the documents and exhibits constituting the record upon which the action appealed is taken. The official must 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.

(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 imminent peril to life or property or because the violation is transitory in nature, a stay would seriously interfere with enforcement of this chapter. 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 must meet to hear the appeal within 15 days after such request is filed. Notwithstanding the foregoing, appeals of decisions granting a permit or otherwise affirming that a proposed use of property is consistent with this chapter 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 may grant a stay of a final decision of permit applications or building permits affected by the issue being appealed.

(7)

The board of adjustment must hear and decide the appeal within a reasonable time.

(8)

Notice of the public hearing must be mailed to the person or entity whose application is the subject of the hearing; to the owner of the property that is subject of the hearing if the owner did not initiate the hearing; to the owners of all parcels of land adjoining the property that is subject of the hearing; and to any other persons entitled to receive notice at least ten days, but not more than 25 days, prior to the hearing for any appeal. For the purpose of applying this standard, an adjoining property is deemed to be any parcel that abuts the subject property or is located directly across a public right-of-way from the subject property. In the absence of evidence to the contrary, the town may rely on Dare County tax listings to determine owners of the property entitled to mailed notice.

(9)

The official who made the decision must be present at the hearing as a witness.

(10)

The appellant shall not be limited at the hearing to matters stated in the notice of appeal. If any party or the town would be unduly prejudiced by the presentation of matters not presented in the notice of appeal, the board shall continue the hearing.

(11)

Voting on appeals. A majority of the board members shall be required to reverse any decision of an administrative official charged with the enforcement of this chapter. The board may reverse or affirm, in whole or in part, or may modify the decision appealed from, and shall make any order, requirement, decision or determination that ought to have been made. To this end, the board shall have all the powers of the official who made the decision.

(Code 1990, § 20-40; Ord. of 8-18-1986, § 9.01(A); Ord. No. 89-11, 4-17-1989; Ord. No. 05-06, § 20-40, 4-6-2005; Ord. No. 07-26, 8-6-2007; Ord. No. 13-07, 10-7-2013; Ord. No. 14-03, 3-3-2014; Ord. No. 21-03, Att., 4-6-2021)

State Law reference— Similar provisions, G.S. 160D-302, G.S. 160D-405, G.S. 160D-406, G.S. 160D-705.

(a)

When unnecessary hardships would result from carrying out the strict letter of this chapter, the board of adjustment shall vary any of the provisions upon a showing of the following:

(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.

(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.

(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 granting of a variance shall not be regarded as a self-created hardship.

(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.

(5)

The variance is the minimum variance that will make possible the reasonable use of the land, building, or structure.

(b)

Notice of the public hearing shall be posted on the subject property at least ten days, but not more than 25 days, in advance of public hearing at which the board is to consider the variance. Notice of the public hearing must be mailed to the person or entity whose application is the subject of the hearing; to the owner of the property that is subject of the hearing if the owner did not initiate the hearing; to the owners of all parcels of land adjoining the property that is subject of the hearing; and to any other persons entitled to receive notice at least ten days, but not more than 25 days, prior to the hearing for any variance. For the purpose of applying this standard, an adjoining property is deemed to be any parcel that abuts the subject property or is located directly across a public right-of-way from the subject property. In the absence of evidence to the contrary, the town may rely on Dare County tax listings to determine owners of the property entitled to mailed notice.

(c)

Voting on variances. A concurring vote of four-fifths of the board members shall be required to grant a variance. The board may grant the variance as requested, deny the variance, or grant the variance with conditions.

(1)

The board of adjustment may impose appropriate conditions on any variance, provided the conditions are reasonably related to the variance.

(2)

A violation of such conditions and safeguards, when made a part of the terms under which the variance is granted, shall be a violation of this chapter.

(d)

Under no circumstances shall the board of adjustment grant a variance to allow a use not permissible under the terms of this chapter in the district involved, or any use expressly or by implication prohibited by the terms of this chapter in the district.

(Code 1990, § 20-41; Ord. of 8-18-1986, §§ 2.02, 9.01(B); Ord. No. 05-06, § 20-41, 4-6-2005; Ord. No. 07-30, 11-5-2007; Ord. No. 13-07, 10-7-2013; Ord. No. 21-03, Att., 4-6-2021)

State Law reference— Variances, G.S. 160D-705(d).

(a)

The board of adjustments for the town shall hear and decide requests for variances from the requirements of the flood damage prevention provisions outlined in chapter 14.

(b)

Any person aggrieved by the decision of the board of adjustments may appeal such decision to the court, as provided in G.S. 7A-1 et seq.

(c)

Variances may be issued for:

(1)

The repair or rehabilitation of historic structures upon the determination that the proposed repair or rehabilitation will not preclude the structure's continued designation as a historic structure and that the variance is the minimum necessary to preserve the historic character and design of the structure.

(2)

Functionally dependant facilities, if determined to meet the definition as stated in section 14-5; provided that the provisions of section 14-65(i)(2), (3), and (5) have been satisfied, and such facilities are protected by methods that minimize flood damages.

(3)

Any other type of development; provided that it meets the requirements stated in this section.

(d)

In passing upon variances, the board of adjustments shall consider all technical evaluations, all relevant factors, all standards specified in other sections of this chapter, and:

(1)

The danger that materials may be swept onto other lands to the injury of others;

(2)

The danger to life and property due to flooding or erosion damage;

(3)

The susceptibility of the proposed facility and its contents to flood damage and the effect of such damage on the individual owner;

(4)

The importance of the services provided by the proposed facility to the community;

(5)

The necessity to the facility of a waterfront location as defined in section 14-5 as a functionally dependent facility, where applicable;

(6)

The availability of alternative locations, not subject to flooding or erosion damage, for the proposed use;

(7)

The compatibility of the proposed use with existing and anticipated development;

(8)

The relationship of the proposed use to the comprehensive plan and floodplain management program for that area;

(9)

The safety of access to the property in times of flood for ordinary and emergency vehicles;

(10)

The expected height, velocity, duration, rate of rise, and sediment transport of the floodwaters and the effects of wave action, if applicable, expected at the site; and

(11)

The costs of providing governmental services during and after flood conditions, including maintenance and repair of public utilities and facilities such as sewer, gas, electrical and water systems, and streets and bridges.

(e)

A written report addressing each of the factors in subsection (d) of this section shall be submitted with the application for a variance.

(f)

Upon consideration of the factors listed in subsection (d) of this section and the purposes of this chapter, the board of adjustments may attach such conditions to the granting of variances as it deems necessary to further the purposes of this chapter.

(g)

Any applicant to whom a variance is granted shall be given written notice specifying the difference between the base flood elevation (BFE) and the elevation to which the structure is to be built and that such construction below the base flood elevation increases risks to life and property, and that the issuance of a variance to construct a structure below the base flood elevation will result in increased premium rates for flood insurance up to $25.00 per $100.00 of insurance coverage. Such notification shall be maintained with a record of all variance actions, including justification for their issuance.

(h)

The floodplain administrator shall maintain the records of all appeal actions and report any variances to the Federal Emergency Management Agency and the state upon request.

(i)

Conditions for variances. The conditions for variances are as follows:

(1)

Variances shall not be issued when the variance will make the structure in violation of other federal, state, or local laws, regulations, or ordinances.

(2)

Variances shall not be issued within any designated floodway or nonencroachment area if the variance would result in any increase in flood levels during the base flood discharge.

(3)

Variances shall only be issued upon a determination that the variance is the minimum necessary, considering the flood hazard, to afford relief.

(4)

Variances shall only be issued prior to development permit approval.

(5)

Variances shall only be issued upon:

a.

A showing of good and sufficient cause;

b.

A determination that failure to grant the variance would result in exceptional hardship; and

c.

A determination that the granting of a variance will not result in increased flood heights, additional threats to public safety, or extraordinary public expense, create nuisance, cause fraud on or victimization of the public, or conflict with existing local laws or ordinances.

(j)

A variance may be issued for solid waste disposal facilities, hazardous waste management facilities, salvage yards, and chemical storage facilities that are located in special flood hazard areas, provided that all of the following conditions are met:

(1)

The use serves a critical need in the community.

(2)

No feasible location exists for the use outside the special flood hazard area.

(3)

The reference level of any structure is elevated or floodproofed to at least the regulatory flood protection elevation.

(4)

The use complies with all other applicable federal, state, and local laws.

(5)

The town has notified the secretary of the state department of crime control and public safety of its intention to grant a variance at least 30 calendar days prior to granting the variance.

(Ord. No. 06-14, § 20-42, 8-7-2006)

(a)

No building or other structure shall be erected or moved, nor shall any existing building or structure hereafter be altered in any manner, and no land disturbing activity undertaken preliminary to construction of a structure for which a building permit is required, until a building permit therefor has been issued by the building inspector. Each building permit shall expire six months from the date of issuance if work authorized by the permit has not commenced. If, after commencement, the work is discontinued for a period of 12 months, the permit therefor shall immediately expire. The building permit shall expire if less than 80 percent of the work authorized has been completed within 24 months from the date the permit was issued. No work authorized by any permit that has expired shall thereafter be performed until a new permit has been secured.

(b)

Single-family residential structures shall comply with the following requirements:

(1)

The structure shall not have more than one full kitchen and food preparation area;

(2)

The structure shall not exceed a total height of 35 feet, as provided in the standards of the zoning district regulations;

(3)

Building plans or blueprints and specifications showing utility systems, outlets, and maximum loads of each system shall be filed with the building inspector in addition to the building permit application. The system shall meet or exceed any minimum requirements for the state in addition to the requirements of this chapter. A change in utility system layouts or maximum loads will require the building permit holder or owner to file an amendment to the original building permit describing the change or modification in the utility system. The amendment must be approved in writing by the building inspector; and

(4)

A building site plan prepared by a licensed surveyor or engineer showing the building foundation footprint (perimeter) and the mean elevation of undisturbed land area at the building location.

(c)

All building and occupancy permits shall be conditioned upon continued compliance with the statements set forth in the building permit, and this chapter shall be binding upon the original owner (or building permit applicants if different than the owner), their heirs, successors or assigns. No building shall be occupied or used if the condition of the building permit or occupancy permit has been breached and is not corrected or cured by the owner or otherwise approved by the board of adjustments. The issuance of a building or occupancy permit by the town without approval shall not constitute a waiver of the right of the town to enforce its right to revoke, cancel or terminate the permit due to the violation or breach of any statement contained therein.

(d)

The owner of any building to be constructed in the town shall certify on a form approved by the town that all statements, representations, plans and specifications are material representations of fact made to procure the issuance of a building, improvement, or occupancy permit for the building described therein. Any variance therefrom not approved in writing on the permit by the town building inspector or granted by the board of adjustments shall terminate the improvement, building, or occupancy permits and the same shall become null and void.

(e)

The town clerk shall maintain a record of all building permits, applications and information required by this section. A separate record shall be maintained by the town clerk, listing those buildings which are in noncompliance with the original building permit or occupancy permit and cause written notice of such noncompliance to be filed with the county register of deeds under the name of the owner of the property.

(Code 1990, § 20-51; Ord. of 8-18-1986, § 1.05; Ord. No. 90-5, § 6(k), 4-23-1990; Ord. No. 01-9, 4-2-2001; Ord. No. 01-10, 4-2-2001; Ord. No. 19-07, 11-4-2019)

(a)

Governing board. A governing board member shall not vote on any legislative decision regarding a development regulation adopted pursuant to this chapter where the outcome of the matter being considered is reasonably likely to have a direct, substantial, and readily identifiable financial impact on the member. A governing board member shall not vote on any zoning amendment if the landowner of the property subject to a rezoning petition or the applicant for a text amendment is a person with whom the member has a close familial, business, or other associational relationship.

(b)

Appointed boards. Members of appointed boards shall not vote on any advisory or legislative decision regarding a development regulation adopted pursuant to this chapter where the outcome of the matter being considered is reasonably likely to have a direct, substantial, and readily identifiable financial impact on the member. An appointed board member shall not vote on any zoning amendment if the landowner of the property subject to a rezoning petition or the applicant for a text amendment is a person with whom the member has a close familial, business, or other associational relationship.

(c)

Administrative staff. No staff member shall make a final decision on an administrative decision required by this chapter if the outcome of that decision would have a direct, substantial, and readily identifiable financial impact on the staff member or if the applicant or other person subject to that decision is a person with whom the staff member has a close familial, business, or other associational relationship. If a staff member has a conflict of interest under this section, the decision shall be assigned to the supervisor of the staff person or such other staff person as may be designated by the development regulation or other ordinance.

No staff member shall be financially interested or employed by a business that is financially interested in a development subject to regulation under this chapter unless the staff member is the owner of the land or building involved. No staff member or other individual or an employee of a company contracting with a local government to provide staff support shall engage in any work that is inconsistent with his or her duties or with the interest of the local government, as determined by the local government.

(d)

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

(e)

Resolution of objection. If an objection is raised to a board member's participation at or prior to the hearing or vote on a particular matter and that member does not recuse himself or herself, the remaining members of the board shall by majority vote rule on the objection.

(f)

Familial relationship. For purposes of this section, a "close familial relationship" means a spouse, parent, child, brother, sister, grandparent, or grandchild. The term includes the step, half, and in-law relationships.

(Ord. No. 21-03, Att., 4-6-2021)

Editor's note— Ord. No 21-03, Att., adopted April 6, 2021, renumbered the former §§ 42-95—42-99 as 42-96—42-100 and enacted a new § 42-95 as set out herein. The historical notation has been retained with the amended provisions for reference purposes.

State Law reference— Conflicts of interest, G.S. 160D-109

The building inspector shall not approve a building permit for any building for which county health department approval is required, until such approval has been given by the health department.

(Code 1990, § 20-52; Ord. of 8-18-1986, § 1.06; Ord. No. 21-03, Att., 4-6-2021)

Editor's note— See the editor's note to § 42-95.

(a)

No land shall be used or occupied and no building structurally altered, erected or moved shall be used or the commercial use of a building changed until a certificate of occupancy has been issued by the building inspector stating that the building and/or the proposed use thereof complies with the provisions of this chapter. A certificate shall be issued for the purpose of renewing, changing, or extending a nonconforming use. A certificate of occupancy, either for the whole or a part of a building, shall be applied for coincident with the application for a building permit and shall be issued within ten days after the erection or structural alterations of such building, or part, shall have been completed in conformity with the provisions of this chapter. A record of all certificates shall be kept on file in the office of the building inspector.

(b)

A temporary certificate of occupancy may be issued by the building inspector for a period not exceeding six months during alterations or partial occupancy of a building pending its completion, provided that such temporary certificate may require such conditions and safeguards as will protect the safety of the occupants and the public.

(c)

Prior to May 1, 1996, all restaurants operating on the effective date of this amendment (June 5, 1995) shall prepare a restaurant seating plan containing the maximum number of seats approved by the county board of health and the approximate location of the seats within the building. The plan shall be signed by the appropriate county health department official to indicate county health department approval, and the original and one signed copy shall be presented to the town planner for his approval which shall be evidenced by the town planner's signature or such other town employee's signature as designated by the town manager to make such approval. One copy will be filed with the town planner and the original shall be posted at the restaurant but in no event no more than 15 feet from either side of the main entrance. The seating plan must be visibly displayed at all times and must be accessible to county or town officials for the purpose of inspecting the seating plan and the premises.

(d)

The applicant of a commercial restaurant site plan being reviewed by the town shall submit the seating plan as provided by subsection (c) of this section to the town planner before an occupancy permit is issued by the town. The original seating plan shall be posted as required by subsection (c) of this section within ten days of the occupancy permit date. The applicant shall designate on the commercial restaurant site plan the approximate location where the original seating plan will be posted.

(Code 1990, § 20-53; Ord. of 8-18-1986, § 1.07; Ord. No. 95-10, 6-5-1995; Ord. No. 02-21, § 20-53, 10-7-2002; Ord. No. 21-03, Att., 4-6-2021)

Editor's note— See the editor's note to § 42-95.

(a)

All applications for building permits for new construction of single-family detached and two-family residences shall require submission of the following application materials:

(1)

All information and materials listed on a current residential building permit application as of the date that the application is submitted.

(2)

Other information as may be lawfully required by the building inspector.

(3)

Any additional information and materials that are necessary to determine conformance with and provide for the enforcement of this chapter.

(b)

One copy of the plans shall be returned to the applicant by the building inspector, after the building inspector has marked the copy as either approved or disapproved and attested to the same by his signature on such copy. The second copy of the plans, similarly marked, shall be retained by the town.

(Code 1990, § 20-54; Ord. of 8-18-1986, § 8.02(A); Ord. No. 90-5, § 6(l), 4-23-1990; Ord. No. 08-13, 6-2-2008; Ord. No. 21-03, Att., 4-6-2021)

Editor's note— See the editor's note to § 42-95.

(a)

Site plans. Site plans are required for the following:

(1)

A site plan review is required for multifamily, and commercial buildings and commercial sites as well as changes of use on existing commercial sites or changes from a residential use to a commercial use of an existing structure.

(2)

Every applicant seeking review of commercial and multifamily site plans and subdivision plans may have a preplanning board review conference with the town planning staff for the purpose of reviewing and identifying any technical errors, mistakes, or unsatisfied zoning or subdivision ordinance standards shown on the plan or plat under review. Any such errors, mistakes, or unsatisfied standards must be corrected and corrected plats resubmitted to the town planning staff before the application is processed for review by the town.

(3)

Site plans and modifications to site plans for the following uses when listed as permitted uses or special uses within a district must be approved by the planning board and the town council (or the town planning staff as authorized by this chapter) before a building permit for construction may be issued:

a.

Multiple-family residential dwellings containing three or more dwelling units.

b.

Commercial buildings and use.

c.

Apartment buildings and duplexes of two or more buildings.

d.

Condominiums.

e.

Townhouses.

f.

Hotels, motels or motor lodges.

g.

Business, commercial or industrial buildings.

h.

All other uses similar to but not included in this subsection.

(b)

Procedure. Submission requirements are as follows:

(1)

Fifteen copies of a site plan prepared, stamped and endorsed by a registered engineer, surveyor, or other person duly authorized by the state to practice as such shall be submitted no later than 30 days prior to the next regular meeting of the planning board.

a.

Additional copies of each site plan may be requested, as needed, and may be delivered by the planning staff to such town, county and state officials and departments as the planning board or town council may direct. Each department, agency or staff representing such agency or department shall review the site plan and report any recommendations or comments to the planning staff.

b.

The planning staff shall review the application for compliance with submission requirements, and if the application is complete and all fees paid, schedule a staffing meeting with all participating departments.

c.

The planning staff will notify the applicant of any technical errors, omissions, mistakes or unsatisfied standards which must be corrected before scheduling a review by the planning board.

(2)

In addition to any other requirements of the town staff or planning board, the site plan shall contain the following information:

a.

Property and ownership information.

1.

The present recorded owner and the map book reference of the site property.

2.

The owners, lot numbers or map book and page reference of all adjacent properties.

3.

The boundary of the entire lot by course and distance.

4.

The width of the existing rights-of-way.

5.

The nature or purpose, location and size of existing easements.

6.

Iron pins three-eighths-inch in diameter and 36 inches in length at all lot corners, points of tangents, and any angle point along a given court on the lot. Such pins shall be installed at all lot corners.

7.

The plan shall be drawn to a scale of at least one inch equals 100 feet and shall show a north arrow.

b.

Existing features information.

1.

Streets showing the type and width of pavement, curbs and sidewalks.

2.

Topographic features of the lot and existing grades for the lot, streets, storm drainage, etc.

3.

All other underground utilities and facilities, including gasoline tanks.

4.

Each site plan with wetlands (as defined under the Federal Clean Water Act, as amended from time to time, and the rules and regulations published thereunder) within the site plan boundaries shall have the following certificate of a registered surveyor or engineer printed on the plat:

5.

A recordable restrictive covenant containing the following provisions and approved by the town attorney shall be signed by the owners of property subject to commercial site plan review by the planning board prior to final approval by either the town staff or planning board and town council, whichever is appropriate, before commencing the subsequent different commercial use:

"The undersigned, their heirs, successors and assigns, hereby covenant and agree that the property herein described shall be used for the commercial use of (designate commercial use) as allowed by the Kitty Hawk Zoning Ordinance and no other commercial use thereof shall be made without the prior approval of the town of Kitty Hawk pursuant to the Kitty Hawk Zoning Ordinance. Any changes in the site plan required by the change in commercial use shall be shown on an amended site plan which shall be approved by the planning board and town council."

c.

Site improvements.

1.

The proposed building type (brick or frame).

2.

The floor plans and dimensions.

3.

The uses and/or narrative of uses within the structure.

4.

The proposed first floor elevation.

5.

The location and type of all sidewalks and curbs within the site.

6.

The location of all wells, as well as size and depth thereof, water lines, water services, fire hydrants, and any other information the planning board may require.

7.

The location of sanitary sewer facilities with connection to sewer system or septic tank.

8.

The layout and number of parking stalls. The same shall be shown in accordance with article VI, division 2 of this chapter.

9.

The finished grades for the entire site.

10.

A tabulation of the total number of dwelling units of various types in the project and the overall project density in dwelling units per acre.

d.

Before any proposed site plan shall be approved, tentative approval of the proposed sewage treatment and disposal facilities, by the county board of health or the state department having jurisdiction, shall be demonstrated to the planning board along with any dredge and fill permits required by law.

e.

The applicant must submit building elevations of each side of the building proposed to be built together with the site plan for the town to review. The building elevations cannot be changed after town approval of the elevations without subsequent town approval of the revised elevations. The review of revised elevations may be conducted by the town staff or the planning board in accordance with the policies for review of site plan amendments.

f.

Proposed lighting plan in accordance with section 42-515(f).

g.

Right-of-way improvements. Such improvements shall be made in accordance with the policy of the town council.

h.

Storm drainage. The same shall be provided in accordance with the policy of the town council.

i.

On-site advertising. The location of on-site advertising signs and the distance of the signs from the closest property line.

j.

Zoning, etc., information. A statement or certificate of the owner or the owner's agent stating the zoning district classification in which the property is located and, if the property has been previously subdivided, the plat cabinet, and slide number designation assigned by the register of deeds to the recorded subdivision plat.

k.

A reduced site plan 8½ inches by 11 inches that can be shown on an overhead projector.

l.

In addition to the building permit covered elsewhere, a permit for any construction within the public right-of-way shall be obtained prior to commencing any work as well as any permits required by chapter 12, article II, pertaining to the environment and chapter 32, pertaining to soil erosion.

m.

Inspections of sites involving public rights-of-way and inspections of any on-site construction shall be made by the town.

n.

Dimensional requirements and development standards shall be in accordance with the district in which the building is to be located, and shall be shown on the site plan.

o.

Wetlands identification and mapping.

1.

Each applicant seeking planning board review of any proposed subdivision, resubdivision, commercial site plan or multifamily dwelling development shall have the Corps of Engineers verify the location of all wetlands within the property boundaries and the location of the wetland perimeters (404 lines) as flagged by the applicant. Thereafter, three plats prepared by a registered surveyor or engineer shall be filed with the town depicting the boundaries of the wetlands as verified by the Corps or other designated responsible agency along with a written letter or other certification acceptable to the town that the Corps or other designated agency has verified the location of the wetlands as shown on the plats filed with the town.

2.

The 404 or wetland plats shall be filed prior to or at the time the applicant files his application for planning board review. In the event any project contains wetlands and the applicant has not filed the wetlands plat with the town, then the time period for planning board review before town council review shall be automatically suspended and further planning board review forthwith terminated and deferred until the required plats are filed with the town with the appropriate certification. Thereafter, planning board review shall be reinstated without the payment of an additional fee; however, all zoning and subdivision ordinance amendments adopted by the town council during the interim period shall apply in all respects to the applicant's site or development. Any amendments or modifications to the site plan or development plan under review required by zoning or subdivision ordinance amendments shall be incorporated into the site plan or development plan filed with the town before further review by the planning board. If planning board review is terminated under this section and not reinstated within six months of the date of termination, then the applicant's right to reinstate planning board review shall automatically cease and the planning board shall not review the project until the applicant has refiled his application with the town and paid the appropriate fee.

(c)

Site plan review process. All commercial site plans shall be reviewed by the staff in accordance with the administrative procedures and standards established by the town.

(d)

Planning board review. The planning board review is as follows:

(1)

The planning board may recommend approval, conditional approval or recommend denial of any proposed site plan. Upon completion of its review, the planning board will transmit its recommendations to the town council.

(2)

The applicant shall make appropriate revisions to comply with planning board recommendations. The applicant shall submit 15 copies of any revised site plan.

(e)

Town council approval. The town council may approve, approve with specific requirements and conditions or disapprove any site plan. A rejected site plan may be resubmitted in accordance with this section when redrafted to meet the specifications of this chapter and upon payment of a filing fee as required in section 42-39.

(f)

Application for a building permit.

(1)

After the town council has approved a site plan, the applicant may request a building permit. The permit shall be granted if it complies with all applicable state building codes and conforms with the approved site plan.

(2)

The town staff shall conduct a staff review with all the departmental staff who reviewed the site plan and determine if the building permit is in compliance with the approved site plan.

(3)

The site development shall be in accordance with the site plan and conditions approved by the town council. Any change to the approved site plan shall be submitted to the planning board for a recommendation and town council for approval.

(g)

As-built site plan approval. The applicant shall file a final as-built site plan with the town planning department. The town staff shall make any inspections necessary to verify the correctness of the site plan. The town planning staff may utilize the services of an engineer and/or surveyor licensed in the state for the purposes of examining the site plan and comparing the as-built site plan to the completed site to ensure compliance with all applicable zoning, subdivision, soil sedimentation and erosion control and flood ordinances and to ensure compliance with the approved site drainage plan as well as any other regulations of the town. The engineer and/or surveyor shall report all noncomplying conditions or standards to the town planning staff.

(1)

The as-built site plan shall contain the following site information, as well as any other information to demonstrate complete accordance with the approved site plan:

a.

The building type, location and the floor dimensions and setbacks.

b.

The first floor elevation.

c.

The location and type of all sidewalks and curbs within the site.

d.

The location of all wells, as well as size and depth thereof, water lines, water services, fire hydrants, and any other information shown on the approved site plan.

e.

The location of sanitary sewer facilities with connection to sewer system or septic tank.

f.

The layout and number of parking stalls.

g.

The finished grades for the entire site along with any stormwater facilities on the site.

h.

A tabulation of the total number of dwelling units in the project and the overall project density in dwelling units per acre.

i.

Final lot coverage calculations. The town planning staff shall determine whether the as-built site plan substantially complies with the project approval (including the approved site plan notwithstanding the deficiencies or nonconformities reported by the engineer and/or surveyor). The town planning staff may:

1.

Deny approval of the as-built site plan and require modifications and evidence of compliance therewith;

2.

Grant approval; or

3.

Refer the as-built site plan and engineer's and/or surveyor's report to the planning board for its review and deliberation.

(2)

Should the town planning staff deny approval or refer the as-built site plan to the planning board, then the planning board shall review the as-built site plan and other information within 30 days of the denial or referral date.

(3)

After review by the planning board, it may approve, defer for compliance, or deny approval of the as-built site plan. If the planning board denies approval of the as-built site plan, then the applicant may appeal the decision to the town council. The town council may approve, conditionally approve or deny the as-built site plan.

(h)

Issuance of certificate of occupancy. No occupancy permit shall be issued until the as-built site plan has been approved by either the town planning staff, planning board or town council as provided herein. No final approval shall be granted until all review fees (including engineer's and/or surveyor's fees for services required by this section) have been paid in full to the town by the applicant.

(i)

Expiration of site plan approval. Upon final approval of the site plan, the building inspector may issue a building permit within 180 days from the date of such approval; provided that all other requirements of this chapter and other applicable town ordinances are met. If a building permit is not secured within 180 days of the final approval of the site plan, the applicant must resubmit the site plan for review by the planning board and the town council. Prior to the expiration of an approved site plan, the planning director can grant one extension of the site plan approval for 180 days, provided the planning director finds that:

(1)

The site plan conforms with all current site plan standards and requirements, and there have not been any changes in this chapter which would make the site plan nonconforming on the date of the extension; and

(2)

There have been no changes in the site plan.

(j)

Site plan review following cessation of use. When a commercial use of a property ceases for 24 months as demonstrated by the property being vacated, not open for business to the general public, utility services being discontinued or an intent to cease commercial use is otherwise stated or shown, before reopening the prior use or establishing a new commercial use a site plan must be submitted for approval and the site brought into compliance with current development standards. The site plan shall proceed to the planning board for review and to the town council for its approval. Reopening the commercial use of the property during the 24 months for less than 30 consecutive days will not toll the running of the 24 months.

(k)

Changes to an approved site plan. If, following the town council's conditional or final approval, the owner or developer desires to make a change to the approved site plan, the change must be reviewed by the planning board and approved by the town council.

(l)

Change of permitted use within a site plan. A change of permitted use of commercial property to another permitted use in the zoning district must be approved by the town prior to commencing the proposed use. If the proposed use is designated as a permitted use in this chapter for the district, then the town planner may conduct an administrative review and grant town approval of the proposed use and any necessary minor site plan modifications. The town planning staff may conduct an administrative review and grant town approval under the following circumstances:

(1)

The proposed use has been designated as a permitted use in this chapter for the zoning district;

(2)

Any site plan modification necessary to conduct the proposed use must be minor and in conformity with all standards and requirements of this chapter;

(3)

An amended site plan depicting the modifications must be filed with the town, and the modifications at the site must be completed, inspected and approved by the town planning staff, the building department and the county health department, if necessary, before the use is commenced;

(4)

After granting town approval pursuant to this subsection, the town planner shall inform the planning board of the approval at the board's next regular meeting following the approval date.

The purpose and intent of an administrative review is to allow a "change of permitted uses" within an existing commercial development or shopping center (approved site plan), as long as it meets the current standards as noted in subsections (1) through (4) above.

(m)

Minor modifications to an approved site plan. Minor modifications to or changes in an approved site plan and in the improved site, as defined in section 42-1, may be reviewed and administratively approved by the town planning staff, provided the modifications or changes to the site plan and the site do not result in any violations of site plan standards and the change or modification must be minor and in conformity with all standards and requirements of this chapter; and provided further that requirements of subsection [l](3), and (4) of this section are satisfied. Notwithstanding any request for administrative approval of a change or modification to a site plan and a site, the town planning staff, at their discretion, may require the proposed changes to be reviewed by the town planning board and approved by town council as otherwise provided in this chapter.

(n)

Multiple lot site plan. If the site plan depicts the combination of multiple lots, the plat must show the multiple lots as one parcel. In addition, a covenant that said parcel shall remain permanently combined as one parcel shall be submitted with the site plan. The plat and covenant shall be recorded in the county register of deed's office and indexed in the name of the current record owner prior to issuance of a building permit.

(o)

Revocation of approval. Development approvals may be revoked by the town by notifying the holder in writing stating the reason for the revocation. The town shall follow the same development review and approval process required for issuance of the development approval, including any required notice or hearing, in the review and approval of any revocation of that approval. Development approvals shall be revoked for any substantial departure from the approved application, plans, or specifications; for refusal or failure to comply with the requirements of any applicable local development regulation or any state law delegated to the town for enforcement purposes in lieu of the state; or for false statements or misrepresentations made in securing the approval. Any development approval mistakenly issued in violation of an applicable state or local law may also be revoked.

(p)

Approval applicability. Unless provided otherwise by law, all rights, privileges, benefits, burdens, and obligations created by development approvals made pursuant to this chapter attach to and run with the land.

(q)

Permit choice. If an application made in accordance with approved regulation is submitted for a development approval required pursuant to this chapter and a development regulation changes between the time the application was submitted and a decision is made, the applicant may choose which version of the development regulation will apply to the application. If the development permit applicant chooses the version of the rule or ordinance applicable at the time of the permit application, the development permit applicant shall not be required to await the outcome of the amendment to the rule, map, or ordinance prior to acting on the development permit. This section applies to all development approvals issued by the town.

(Code 1990, § 20-55; Ord. of 8-18-1986, §§ 1.04, 8.02(B); Ord. No. 87-14, 8-3-1987; Ord. No. 88-2, 1-18-1988; Ord. No. 88-8a, 8-1-1988; Ord. No. 88-13A, 10-24-1988; Ord. No. 89-17, 12-19-1988; Ord. No. 89-6, 3-20-1989; Ord. No. 89-11, 4-17-1989; Ord. No. 90-5, § 6(m), 4-23-1990; Ord. No. 91-7, 6-17-1991; Ord. No. 91-13, § 2, 10-7-1991; Ord. No. 95-7, 4-4-1995; Ord. No. 95-21, 11-6-1995; Ord. No. 98-15, 6-1-1998; Ord. No. 98-17, 6-1-1998; Ord. No. 98-32, 10-5-1998; Ord. No. 00-30, 8-7-2000; Ord. No. 02-18, § 20-55, 9-9-2002; Ord. No. 02-23, § 20-55, 10-7-2002; Ord. No. 02-31, § 1, 12-2-2002; Ord. No. 03-24, § 20-55, 5-5-2003; Ord. No. 03-40, § 20-55, 7-7-2003; Ord. No. 03-49, § 20-55, 9-8-2003; Ord. No. 10-14, 12-6-2010; Ord. No. 17-01, 3-6-2017; Ord. No. 21-03, Att., 4-6-2021)

Editor's note— See the editor's note to § 42-95.

State Law reference— Conflicts of interest, G.S. 160D-109.

(a)

Town council approval; conditions. The town council may hear and approve special uses in the zoning districts where such special uses are specified by this chapter. Applications for planned unit development shall also be processed under the procedures of this section. The town council may impose such reasonable and appropriate conditions and safeguards upon these special use permits as to ensure that the spirit and intent of this chapter is preserved and that such special use will not adversely affect the public interest.

(b)

Commercial uses. The application procedure for a special use building permit for commercial uses are as follows:

(1)

Fifteen copies of a written application and accompanying site plan for a special use permit shall be submitted no later than 30 days prior to the next regular meeting of the planning board. Additional copies of each special use application may be requested by the planning staff.

(2)

The planning staff shall review the application for compliance with submission requirements. The special use shall meet all the commercial site plan requirements, as well as, provide a list of all adjacent property owners. In most cases, the special use will require a concurrent review of a commercial site plan. When the staff determines that the application is complete, the staff will schedule the application for the next available planning board meeting.

(3)

The planning board shall review the application and shall submit its recommendation as to approval or disapproval along with such conditions as it may deem necessary to the town council.

(4)

The applicant may appear in person, or be represented by an agent or attorney.

(5)

A special use permit application shall not be given final consideration by the town council until after a public hearing in relation thereto, at which parties in interest and citizens shall have an opportunity to be heard. A notice of such hearing shall be advertised at least 15 days prior to the date of the hearing in a newspaper of general circulation in the town. At a minimum, the owner of the property for which special use approval is sought (or his agent) and all adjoining property owners shall be mailed notice of the public hearing at least 15 days prior to the date of the hearing for any special use permit. For the purpose of applying this standard, an adjoining property is deemed to be any parcel that abuts the subject property or is located directly across a public right-of-way from the subject property.

(6)

The town council shall conduct their review of any special use permits as a quasi-judicial body. The mayor, or any member temporarily acting as mayor, and the town clerk are authorized to administer oaths to witnesses in any quasi-judicial matter coming before town council.

(7)

In a quasi-judicial matter, the mayor, or any member temporarily acting as mayor, may subpoena witnesses and compel the production of evidence. To request issuance of a subpoena, persons with standing under G.S. 160A-393(d) may make a written request to the mayor explaining why it is necessary for certain witnesses or evidence to be compelled. The mayor shall issue requested subpoenas he/she determines to be relevant, reasonable in nature and scope, and not oppressive. The mayor shall rule on any motion to quash or modify a subpoena. Decisions regarding subpoenas made by the mayor may be appealed to the full town council.

(8)

To approve the application, the town council must make findings that the proposed special use:

a.

Does not materially endanger the public health or safety,

b.

Does meet all required conditions and specifications,

c.

Will not substantially injure the value of adjoining property or be a public nuisance, and

d.

Will be in harmony with the area in which it is located and be in general conformity with the comprehensive plan.

(9)

The town council 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 council's determination of contested facts and their application to the applicable standards. The written decision shall be signed by the mayor or other duly authorized member of the council. A quasi-judicial decision is effective upon filing the written decision with the town clerk. The decision of the town council 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.

(10)

Minor modifications, as defined in section 42-1, may be approved administratively by town planning staff. Notwithstanding any request for administrative approval of a change or modification to a site plan and a site, the town planning staff, at their discretion, may require the proposed changes to be reviewed by the town planning board and approved by town council as otherwise provided in this chapter.

(c)

Residential use in a commercial district. A special use application together with a review fee in accordance with the adopted fee schedule, shall be filed with the town for review of residential uses in a commercial district where such is permitted as a special use in the zoning district. The town planning staff shall review the application and the town planner will either grant or deny the special use requested by the application. If the planner denies the application, then the applicant shall have ten days from the written notification of such denial in order to appeal the town planner's decision to the town council. Upon a timely appeal to the town council, the appeal shall be placed on the next regular council agenda for hearing by the town council. If the town planner or such other town employee designated by the town manager grants the special residential use in a commercial district, then the planner or such other town employee shall inform the applicant of the following:

(1)

A site plan review by the planning board will be necessary in the event the residential use of the dwelling is changed or proposed to be changed to a commercial use.

(2)

A commercial use may be commenced on property adjoining the residential use of the applicant.

(d)

Conditions and expiration. In granting a permit for a special use, the town council may prescribe reasonable and appropriate conditions. Violation of such conditions and safeguards, when made a part of the terms under which the permit is granted, shall be deemed a violation of this chapter. The town council shall prescribe a time limit within which the action for which the permit is required shall be begun or completed, or both. Failure to begin or complete, or both, such action within the time limit set shall void the permit. If an approved special use ceases to operate for more than a period of 180 days, the special use would expire. The property owner or subsequent owner/lessee would have to re-apply for the special use. Only permitted uses allowed within the district would be permitted.

(e)

No person shall commence or proceed with development without first securing any required development approval from the town. Applications for development approvals may be made by the landowner, a lessee or person holding an option or contract to purchase or lease land, or an authorized agent of the landowner. An easement holder may also apply for development approval for such development as is authorized by the easement. If approved, the development approval shall be made in writing.

(Code 1990, § 20-56; Ord. of 8-18-1986, § 8.03; Ord. No. 88-11A, 9-7-1988; Ord. No. 95-7, 4-4-1995; Ord. No. 02-21, § 20-56, 10-7-2002; Ord. No. 02-24, § 20-56, 10-7-2002; Ord. No. 03-41, § 20-56, 7-7-2003; Ord. No. 07-30, 11-5-2007; Ord. No. 11-05, 6-6-2011; Ord. No. 14-03, 3-3-2014; Ord. No. 21-03, Att., 4-6-2021)

Editor's note— See the editor's note to § 42-95.

(a)

A vested right for a site-specific vesting plan shall remain vested for a period of two years. This vesting shall not be extended by any amendments or modifications to a site-specific vesting plan unless expressly provided by the town. The town may provide that rights regarding a site-specific vesting plan shall be vested for a period exceeding two years, but not exceeding five years, if warranted by the size and phasing of development, the level of investment, the need for development, economic cycles, and market conditions, or other considerations. This determination shall be in the discretion of the planning director and shall be made following the process specified for the particular form of a site-specific vesting plan involved in accordance with G.S. 160D-108(d)3(c), which provisions are explicitly incorporated herein by reference. The exceptions to the foregoing ordinance are iterated in G.S. 160D-108(f), which provisions are explicitly incorporated herein by reference.

(b)

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.

(Ord. No. 21-03, Att., 4-6-2021)

(a)

Within the districts established by this chapter there exist lots, structures, uses of land and structures, and characteristics of use which were lawful before this chapter was passed or amended, but which would be prohibited, regulated, or restricted under the terms of this chapter. Except as otherwise specifically provided in this chapter, it is the intent of this chapter to permit these nonconformities to continue until they are removed. It is further the intent of this chapter that nonconformities shall not be enlarged, expanded, or extended, nor be used as grounds for adding other structures or uses prohibited elsewhere in the same district. However, the town policy is to encourage the maintenance and improvement of property within the provisions of this section.

(b)

To avoid undue hardship, nothing in this chapter shall be deemed to require a change in the plans, construction, or designated use of any building for which a valid building permit has been issued by the town.

(c)

Notwithstanding any other provision of this chapter to the contrary, any lawfully established, nonconforming structure or structure containing a nonconforming use can be rebuilt in the event it is damaged or destroyed, whether in whole or in part, by fire, wind, flood or other calamity or catastrophic event. A building permit for such work must be obtained within one year of the date that the structure was damaged or destroyed and such work shall comply with the currently adopted building code. An additional six months may be granted by the planning director or designee when the director or designee determines that the extension is necessary due to delays beyond the control of, or not caused by, the property owner.

During such restoration, reconstruction or repair, the structure shall not be increased in volume or size, the footprint of the foundation enlarged, the structure relocated, or other improvements made to the property in a manner that increases its nonconformity. In the event that a structure violated a minimum setback standard of this chapter prior to its destruction by fire, wind, flood or other catastrophic event, said structure or portion thereof may be rebuilt or restored to the original foundation footprint, notwithstanding the provisions of the current setback standards in this chapter. The size, intensity, and density of a nonconforming use shall not be changed in a manner that increases its nonconformity.

Any structure and grounds housing a lawfully established, nonconforming commercial, office, industrial, institutional, multifamily residential, or group development must be repaired, maintained and/or rebuilt in accordance with the most recently approved project site plans (or existing site layout when plans are not available) or repaired, maintained and/or rebuilt in a manner that decreases its nonconformity.

(Code 1990, § 20-66; Ord. of 8-18-1986, § 6.01; Ord. No. 09-01, (20-66), 1-5-2009)

Editor's note— Ord. No. 09-01, adopted Jan. 5, 2009, changed the title of § 42-127 from intent to generally.

(a)

When a nonconforming lot can be used in conformity with all of the requirements (other than the area or width requirements) applicable to the district in which the lot is located, such a use may be made as of right. Otherwise, the nonconforming lot may be used only in accordance with a special use permit issued by the town council. The town council shall issue such a permit if it finds that the proposed use is one permitted by the regulations applicable to the district in which the property is located, and that the property can be developed as proposed without any significant negative impact on the surrounding property or the public health, safety, or welfare. In issuing the permit the council may allow deviations from applicable dimensional requirements (such as setback lines and yard size minimums) if it finds that no reasonable use of the property can be made without such deviations.

(b)

Whenever this chapter creates a nonconforming lot and the owner of the nonconforming lot also owns land adjacent to it, and a portion of this other land may be combined with the nonconforming lot to create a conforming lot (without thereby creating other nonconformities), the owner of the nonconforming lot, or his successors in interest may not take advantage of the provisions of subsection (a).

(Code 1990, § 20-67; Ord. of 8-18-1986, § 6.02(A); Ord. No. 89-11, 4-17-1989; Ord. No. 96-2, 1-8-1996; Ord. No. 09-01, (20-67), 1-5-2009)

Editor's note— Ord. No. 09-01, adopted Jan. 5, 2009, changed the title of § 42-128 from nonconforming—lots of record to nonconforming lots of record.

Where on August 18, 1986, lawful use of land exists which is not permitted by this chapter, the use may be continued so long as it remains otherwise lawful, provided:

(1)

No such nonconforming use shall be enlarged or increased, nor extended to occupy a greater area of land than was occupied on August 18, 1986 or at the effective date of amendment of this chapter.

(2)

No such nonconforming use shall be moved in whole or in part to any portion of the lot or parcel other than that occupied by such use on August 18, 1986 or at the effective date of amendment of this chapter.

(3)

If any such nonconforming use of land ceases for any reason for a period of more than one year, then any subsequent use of land shall conform to this chapter for the district in which such land is located, subject to the provisions of section 42-127.

(4)

No additional structure not conforming to the requirements of this chapter shall be erected in connection with such nonconforming use of land.

(5)

Any lawfully established, nonconforming mobile or manufactured home may be replaced with another mobile or manufactured home of any size in a manner that does not increase its nonconformity with applicable setback and lot coverage standards.

(6)

Existing single-family dwellings in commercial zones may be maintained, repaired, and reconstructed.

(7)

In any district in which residential multifamily or group development dwellings and/ or projects have been approved by the town planning board and town council prior to August 18, 1986, the approved multifamily or group development structure may be constructed, erected, repaired, maintained and rebuilt or reconstructed in accordance with the approved project site plans, and the plans and specifications submitted to the building inspector, notwithstanding the limitations by other provisions of this chapter, including but not limited to those pertaining to density, setback and yard area requirements and lot coverage. In instances where the dimensions of the structure(s) are not changing and number of bedrooms is not increasing, the number of units can be increased, subject to town council approval of a revised site plan.

(Code 1990, § 20-68; Ord. of 8-18-1986, § 6.02(B); Ord. No. 89-19, 12-19-1988; Ord. No. 93-10, 5-3-1993; Ord. No. 07-11, § 20-68, 5-7-2007; Ord. No. 09-01, (20-68), 1-5-2009; Ord. No. 12-07, 8-6-2012)

Editor's note— Ord. No. 09-01, adopted Jan. 5, 2009, changed the title of § 42-129 from same—uses of land to nonconforming uses of land.

(a)

Where a lawful structure exists on August 18, 1986 or at the effective date of amendment of this chapter that could not be built under the terms of this chapter by reason of restrictions on area, lot coverage, height, yards, its location on the lot, or other requirements concerning the structure, such structure may be continued so long as it remains lawful, subject to the following provisions:

(1)

No such nonconforming structure may be enlarged or altered in a way which increases its nonconformity, but any structure or portion thereof may be altered to decrease its nonconformity.

(2)

Should such nonconforming structure or nonconforming portion of a structure be demolished to an extent of more than 50 percent of its replacement cost at time of demolition, it shall not be reconstructed except in conformity with the provisions of this chapter, subject to the provisions of section [42-127].

(3)

Should such nonconforming structure be moved for any reason for any distance whatever, it shall thereafter conform to the requirements for the district in which it is located after it is moved.

(4)

Any such nonconforming structure located on the lots adjacent to the Atlantic Ocean or sound waters may be moved on the same lot provided that such movement does not increase the nonconformity of the structure in any way, as long as the proposed move complies with all applicable standards of other regulatory agencies.

(b)

Any outdoor sign which does not comply with this chapter is a nonconforming structure. Notwithstanding any other provisions with regard to nonconforming structures, the continued use of such nonconforming signs as nonconforming structures shall cease and the nonconforming structure be removed (or modified to conform) on January 1, 1994. A nonconforming sign structure which has been destroyed or damaged in excess of 50 percent of its value shall not be repaired or replaced. Such nonconforming sign structure shall be removed by the property owner of the property on which the structure is located.

[(c)]

Per the standards outlined in section [42-127], any lawfully established, nonconforming structure can be repaired or rebuilt in the event it is damaged or destroyed, whether in whole or in part, by fire, wind, flood or other calamity or catastrophic event. During such reconstruction or repair, the structure shall not be increased in volume or size, the footprint of the foundation enlarged, the structure relocated, or other improvements made to the property in a manner that increases its nonconformity. Any such work shall comply with the electrical, plumbing, heating/air-conditioning and building code in effect at the time of the construction work.

(Code 1990, § 20-69; Ord. of 8-18-1986, § 6.02(C); Ord. No. 90-6, 5-7-1990; Ord. No. 03-44, § 20-69, 7-7-2003; Ord. No. 06-17, § 20-69, 12-4-2006; Ord. No. 09-01, (20-69), 1-5-2009)

Editor's note— Ord. No. 09-01, adopted Jan. 5, 2009, changed the title of § 42-130 from same—structures to nonconforming structures.

If a lawful use involving buildings with a replacement cost of $1,000.00 or more, or of a building and premises in combination, exists on August 18, 1986, or at the effective date of adoption of an amendment to this chapter, that would not be allowed in the district under the terms of this chapter, the lawful use may be continued so long as it remains otherwise lawful, subject to the following provisions:

(1)

No existing structure devoted to a use not permitted by this chapter in the district in which it is located shall be enlarged, extended, constructed or moved except in changing the use of the structure to a use permitted in the district in which it is located.

(2)

Any nonconforming use may be extended throughout any parts of a building which were manifestly arranged or designed for such use at the time of adoption or amendment of this chapter, but no such use shall be extended to occupy any land outside the building.

(3)

If no structural alterations are made, any nonconforming structure or use of structures may be changed to any conforming use, or with the approval of the town council to any use more in character with uses permitted in the district. In permitting such a change, the town council must find that the proposed use is more appropriate or equally as appropriate to the district as the existing nonconforming use and shall require appropriate conditions and safeguards necessary to ensure that the change is in keeping with provisions and spirit of this chapter.

(4)

Any structure, or structure and land in combination, in or on which a nonconforming use is superseded by a permitted use, shall thereafter conform to the provisions for the district, and the nonconforming use may not thereafter be resumed.

(5)

When a nonconforming use of a structure or structure and premises in combination has ceased for one year (except when government action impedes access to the premises), the structure or structure and premises in combination, shall not thereafter be used except in conformity with the regulations of the district in which it is located.

(6)

Where nonconforming use status applies to a structure and premises in combination, removal of the structure shall eliminate the legal, nonconforming status of the land and the nonconforming use of the premises must cease.

(Code 1990, § 20-70; Ord. of 8-18-1986, § 6.02(D); Ord. No. 90-6, 5-7-1990; Ord. No. 09-01, (20-70), 1-5-2009)

Editor's note— Ord. No. 09-01, adopted Jan. 5, 2009, changed the title of § 42-131 from same—uses of buildings or buildings and premises in combination to nonconforming uses of buildings or of buildings and premises in combination.

(a)

In any nonconforming structure or portion of a structure containing a nonconforming use, work may be done for ordinary repairs, or for repair or replacement of nonbearing walls, fixtures, wiring, or plumbing, provided that any nonconformities shall not be increased.

(b)

If a nonconforming structure or portion of a structure containing a nonconforming use becomes physically unsafe or unlawful due to lack of repairs and maintenance, and is declared by the building inspector to be unsafe or unlawful by reason of physical condition, it shall not thereafter be restored, repaired or rebuilt except in conformity with the regulations of the district in which it is located.

(c)

Nothing in this chapter shall be deemed to prevent the strengthening or restoring to a safe condition of any building or part thereof declared to be unsafe by an official charged with protecting the public safety, upon order of such official.

(Code 1990, § 20-71; Ord. of 8-18-1986, § 6.02(E); Ord. No. 09-01, (20-71), 1-5-2009)

(a)

Where a lawfully established parking lot exists that could not be built under the current standards of this chapter by reason of restrictions on drive aisle widths or other dimensional requirements, such parking lot may continue to be used in its present configuration, subject to the following provision:

No such nonconforming parking lot may be enlarged or altered in a way which increases its nonconformity, but any parking lot or portion thereof may be altered to decrease its nonconformity.

(Ord. No. 09-13, 5-4-2009)

Any use which is permitted as a special use in a district under the terms of this chapter shall not be deemed a nonconforming use in such district, but shall without further action be considered a conforming use.

(Code 1990, § 20-72; Ord. of 8-18-1986, § 6.02(F); Ord. No. 09-13, 5-4-2009; Ord. No. 21-03, Att., 4-6-2021)

Editor's note— Ord. No. 09-13, adopted May 4, 2009, renumbered the former § 42-133 as § 42-134. The historical notation for the aforementioned section has been preserved for reference purposes. See the Code Comparative Table for additional information.

Nothing in this chapter shall require any change in the plans, construction, size, or designated use of any building, structure, or part thereof for which a building permit has been granted by the building inspector prior to August 18, 1986; provided, however, that where construction is not begun under such outstanding permit within a period of 90 days subsequent to such date or where it has not been prosecuted to completion within six months subsequent to such date, any further construction or use shall be in conformity with the provisions of this chapter.

(Code 1990, § 20-73; Ord. of 8-18-1986, § 12.01; Ord. No. 09-13, 5-4-2009)

Editor's note— Ord. No. 09-13, adopted May 4, 2009, renumbered the former § 42-134 as § 42-135. The historical notation for the aforementioned section has been preserved for reference purposes. See the Code Comparative Table for additional information.

Any special use permit, commercial site plan, subdivision plat, multifamily development, final plat or multifamily site plan which has received final approval (or conditional approval) from the planning board prior to August 18, 1986, shall be allowed to proceed with the commercial or multifamily project or subdivision plan as approved and in accordance with the zoning regulations in effect at the time of the approval and the provisions of this chapter not inconsistent therewith, provided:

(1)

All fees owed to the town for the project (or an approved phase if a phased project) and all prior taxes owed by the applicant have been paid.

(2)

The building permit for the approved commercial site plan has been issued and construction commenced under the permit by March 18, 1987. Once construction has been commenced it must be continued and be completed within 24 months of the date of the building permit.

(3)

Final approval from the town council for multistructure projects (multifamily) must be granted and all building permits for the approved project or approved phase must be issued by August 18, 1987, and all construction completed on each structure within 24 months of each building permit date. Subsequent phases of a project receiving initial overall approval by the planning board must comply with the requirements of this section.

(Code 1990, § 20-74; Ord. of 8-18-1986, § 12.02; Ord. No. 95-3, 3-6-1995; Ord. No. 09-13, 5-4-2009; Ord. No. 21-03, Att., 4-6-2021)

Editor's note— Ord. No. 09-13, adopted May 4, 2009, renumbered the former § 42-135 as § 42-136. The historical notation for the aforementioned section has been preserved for reference purposes. See the Code Comparative Table for additional information.

The purpose of this division is to implement the provisions of G.S. 160D-108, pursuant to which a statutory zoning vested right is established upon the approval of a site specific development plan.

(Code 1990, § 20-80; Ord. No. 91-20, 12-10-1991; Ord. No. 21-03, Att., 4-6-2021)

(a)

A zoning vested right shall be deemed established upon the valid final approval or, if required, preliminary approval or conditional preliminary approval, by the town council of a site specific development plan following notice and public hearing. A fee of $75.00 shall be paid to the town at the time the request or application for any zoning vested right permit is filed with the town if a public hearing is required by this chapter.

(b)

The approving authority may approve a site specific development plan upon such terms and conditions as may reasonably be necessary to protect the public health, safety and welfare.

(c)

Notwithstanding subsections (a) and (b) of this section, approval of a site specific development plan with the condition that a variance be obtained shall not confer a zoning vested right unless and until the necessary variance is obtained.

(d)

A site specific development plan shall be deemed approved upon the effective date of the approval authority's action or ordinance relating thereto.

(e)

The establishment of a zoning vested right shall not preclude the application of overlay zoning that imposes additional requirements which do not affect the allowable type or intensity of use, of ordinances or regulations that are general in nature and are applicable to all property subject to land use regulations by the town including, but not limited to, building, fire, plumbing, electrical and mechanical codes. Otherwise applicable new or amended regulations and standards shall become effective with respect to property that is subject to a site specific development plan upon the expiration or termination of the vested right in accordance with this chapter.

(f)

A zoning vested right 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 right while applicable.

(Code 1990, § 20-81; Ord. No. 91-20, 12-10-1991)

(a)

Except as otherwise provided in this section, an application for site specific development plan approval shall be processed in accordance with the procedures established by this chapter for development and site plan review and shall be considered by the designated approval authority for the specific type of zoning or land use permit or approval for which application is made.

(b)

Notwithstanding the provisions of subsection (a) of this section, if the authority to issue a particular zoning or land use permit or approval has been delegated by ordinance to a board, committee or administrative official other than the town council, the applicant must request, in writing at the time of the application, that the application be considered and acted on by the town council following notice and a public hearing as provided in G.S. 160D-601.

(c)

In order for a zoning vested right to be established upon approval of a site specific development plan, the applicant must indicate at the time of the application, on a form to be provided by the town, that a zoning vested right is being sought.

(d)

Each map, plat, site plan or other document evidencing a site specific development plan shall contain the following notation:

"Approval of this plan establishes a zoning vested right under G.S. 160D-108 Unless terminated at an earlier date, the zoning vested right shall be valid until (date)."

(e)

Following approval, preliminary approval or conditional approval of a site specific development plan, nothing in this division shall exempt such a plan from subsequent reviews and approvals to ensure compliance with the terms and conditions of the original approval, provided that such reviews and approvals are not inconsistent with the original approval.

(f)

Nothing in this division shall prohibit the revocation of the original approval or other remedies for failure to comply with applicable terms and conditions of the approval or this chapter.

(Code 1990, § 20-82; Ord. No. 91-20, 12-10-1991; Ord. No. 21-03, Att., 4-6-2021)

(a)

A zoning right that has been vested as provided in this division shall remain vested for a period of two years unless specifically and unambiguously provided otherwise. This vesting shall not be extended by any amendments or modifications to a site specific development plan unless expressly provided by the approval authority at the time the amendment or modification is approved.

(b)

Upon issuance of a building permit, the expiration provisions of G.S. 160A-418 and the revocation provisions of G.S. 160A-422 shall apply, except that a building permit shall not expire or be revoked because of the running of time while a zoning right under this section is vested.

(Code 1990, § 20-83; Ord. No. 91-20, 12-10-1991)

A zoning right that has vested as provided in this division shall terminate:

(1)

At the end of the applicable vesting period with respect to buildings and uses for which no valid building permit applications have been filed;

(2)

With the written consent of the affected landowner;

(3)

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

(4)

Upon payment to the affected landowner of 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 consultants' fees incurred after approval by the town, 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;

(5)

Upon findings by the town council, after notice and a hearing, that the landowner or his representative intentionally supplied inaccurate information or made material misrepresentations which made a difference in the approval by the approval authority of the site specific development plan; or

(6)

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

(Code 1990, § 20-84; Ord. No. 91-20, 12-10-1991)

A petition for annexation filed with the town under G.S. 160A-31 or G.S. 160A-58.1 shall contain a signed statement declaring whether or not any zoning vested right with respect to the properties subject to the petition has been established under G.S. 160D-102 or G.S. 160D-108. A statement that declares that no zoning vested right has been established under G.S. 160D-102 or G.S. 160D-108, or the failure to sign a statement declaring whether or not a zoning vested right has been established, shall be binding on the landowner and any such zoning vested right shall be terminated.

(Code 1990, § 20-85; Ord. No. 91-20, 12-10-1991; Ord. No. 21-03, Att., 4-6-2021)

Nothing in this division is intended or shall be deemed to create any vested right other than those established pursuant to G.S. 160D-108.

(Code 1990, § 20-86; Ord. No. 91-20, 12-10-1991; Ord. No. 21-03, Att., 4-6-2021)

The ordinance from which this division is derived shall be effective December 2, 1991, and shall only apply to site specific development plans approved pursuant to the provisions of this division.

(Code 1990, § 20-87; Ord. No. 91-20, 12-10-1991)