This section sets forth the review procedures for the UDO and apply to all applications submitted for review and approval. Additional procedures may be required under a specific application process defined elsewhere in the UDO.

(Ord. No. O-21-06-15-5, §1, 6-15-21)

   A.   A permit shall be required prior to:

      1.   The use or occupancy of any land, building, or structure.

      2.   The commencement of any construction, installation, expansion, enlargement, alteration, repair, removal, or demolition of any building or other structure, or any part thereof.

      3.   The subdivision of any land, building, or structure without first securing obtaining development approval from the applicable review authority.

      4.   The excavation or filling of any land located within any federally designated Special Flood Hazard Area (SFHA) or within the Lake James Watershed.

   B.   A permit shall not be issued until development plans and associated information required in Sec. 3-1.3 demonstrates full compliance with the UDO.

   C.   A land development permit shall be required, in conformance with the provisions of the UDO, prior to the commencement of any construction, reconstruction, alteration, repair, removal, or demolition of any building or other structure, or any part thereof, or the subdivision, or use of land, building, or structure without first securing obtaining the applicable development permit.

   D.   A building permit for alteration, repair, or construction of any building or structure shall not be issued until a zoning permit has first been issued.

(Ord. No. O-21-06-15-5, §1, 6-15-21)

   The following requirements are common to many of the review procedures contained in the UDO and apply to applications submitted under this Chapter. Additional procedures may be required under a specific application process defined in the UDO.

   A.   Initial Application Submittal. All applications for development approval shall be submitted in accordance with the requirements of the UDO and shall be filed with the City planning and development department.

   B.   Forms. Applications required under the UDO must be submitted, fully completed, on forms and in such numbers as required by the City planning and development department.

   C.   Fees Schedule.

      1.   The City of Marion Fee Schedule is maintained by the Finance Department and is updated annually, with fees to be effective the first day of the fiscal year, July 1. Except as otherwise provided within the City of Marion Fee Schedule.

      2.   Before review of an application, including applications for re-hearings, all filing fees must be paid in full. No refund of the fee or any part of the fee shall be made unless the application is withdrawn in writing prior to public notice being made for the public hearing.

      3.   A fee shall not be required if the application is made by the City or any agency created and appointed by the City Council to perform governmental functions.

   D.   Application Deadline. Complete applications shall be submitted in accordance with the City's filing calendar. A calendar indicating submittal dates shall be developed by the City planning and development department and updated annually.

   E.   Zoning Compliance. A building permit application that alters or expands the physical area or footprint of any building or structure or changes the use of any building or structure shall not be issued until after an application for zoning compliance and plan review pursuant to Sec. 3-4.1 have been submitted and approved by the appropriate review authority.

   F.   Applications Previously Denied. Unless as otherwise directed by City Council, any application requiring legislative or quasi-judicial approval that has been previously denied shall not be reconsidered for a period of one calendar year from the date of the written denial unless such application is substantially different than the original application made or when regulatory changes under the UDO have occurred that would result in the request being generally compatible with the provisions of the UDO.

(Ord. No. O-21-06-15-5, §1, 6-15-21)

 

(Ord. No. O-23-07-18-4, § 2, 7-18-23)

   A.   Permit limitation. Unless otherwise stated, all permits issued under the UDO shall expire one calendar year after the date of issuance if the work authorized by the permit has not been commenced. If after commencement the work is discontinued for a period of that noted in subsection above, the permit therefor shall immediately expire unless an extension is granted by the reviewing authority. No work authorized by any permit which has expired or has been closed out shall thereafter be performed until a new permit has been secured.

   B.   Building permit time limitation. Unless otherwise stated, a building permit issued under the UDO shall expire six (6) months after the date of issuance if the work authorized by the permit has not been commenced. If after commencement the work is discontinued for a period of twelve (12) months, the permit therefor shall immediately expire. No work authorized by any permit which has expired shall thereafter be performed until a new permit has been secured.

(Ord. No. O-21-06-15-5, §1, 6-15-21)

   A public hearing is required for applications as shown in the table below:

 

(Ord. No. O-21-06-15-5, §1, 6-15-21)

   For public notice, meeting and hearing requirements applicable to each procedure, see Sec. 3-1.6 above.

Any defective notification of a required City procedure, not otherwise required by State or Federal law, does not invalidate the proceedings if the defect is determined to be clerical error by the City.

   A.   Mailed Notice.

      1.   Mailed notice shall be provided to all property owners as listed in the McDowell County tax records that own property at the time of submittal. Additionally, all property owners in the area of request shall receive mailed notice.

      2.   Mailed notices shall be sent to the addressees at least 10 calendar days prior and not more than 25 calendar days prior to the date of any public meeting.

      3.   Except as otherwise directed by the City Council, the City Board reviewing the matter shall not require additional notification.

      4.   For zoning map amendments that directly affect more than 50 properties owned by a total of at least 50 different property owners, the City may elect to forego mailed notice and instead give notice of the public hearing by publication provided that the newspaper advertisement is not less than ½ of a newspaper page in size. Property owners who reside outside of the newspaper circulation area, according to the addresses listed in the most recent property tax listing for the affected properties, shall be notified by first class mail.

      5.   Except for a City-initiated zoning map amendment, when an application is filed to request a zoning map amendment and that application is not made by the owner of the parcel of land to which the amendment would apply, the applicant shall certify to the City Council that the owner of the parcel of land, as shown on the county tax listing, has received actual notice of the proposed amendment and a copy of the notice of public hearing. The applicant shall certify to the City Council that proper notice has been provided in fact and such certification shall be deemed conclusive in the absence of fraud. Actual notice shall be achieved as follows:

         a.   Actual notice of the proposed amendment and a copy of the notice of public hearing shall be by any manner permitted under N.C. Gen. Stat. § 1A-1, Rule 4(j).

         b.   If notice with due diligence cannot be achieved by personal delivery, registered or certified mail or by a designated delivery service, notice may be given by publication consistent with N.C. Gen. Stat. § 1A- 1, Rule 4(j1). (See N.C. Gen. Stat. § 160D-602).

      6.   For quasi-judicial hearings, mailed notice shall be provided to all other persons with an ownership interest in the subject property as set forth in all applicable State and local laws.

   B.   Published Notice.

      1.   When published notice is required, notice of the public hearing shall be published by the City at least once in a newspaper having general circulation in the City not more than 25 or less than 10 calendar days prior to the date of the public hearing.

      2.   In the case of any ordinance adopting, amending or repealing any provision of the UDO, including a zoning map amendment, notice of a public hearing shall be published once a week in a newspaper having general circulation within the City for 2 successive calendar weeks.

      3.   In determining the time period, the day of publication is not to be included but the day of the hearing shall be included.

   C.   Posted Notice.

      1.   When posted notice of any public meeting is required, signage shall be posted by the City on the property at a point visible from the nearest public street or streets if the property fronts on multiple streets.

      2.   In the case of multiple parcels, a posting on each individual parcel is not required, but sufficient signage shall be posted to provide reasonable notice to interested persons.

      3.   The sign shall not measure less than 18 inches x 24 inches. Signage shall be posted at least 10 calendar days prior to the date of the public meeting.

      4.   Posted notice shall not be required for Planning Board meetings for zoning map amendments that directly affect more than 50 properties owned by a total of at least 50 different property owners if the City elects to give notice of the public hearing by publication provided that the newspaper advertisement is not less than ½ of a newspaper page in size.

   D.   Content of Notice.

      1.   Published and Mailed Notice. The content of required published and mailed notice shall be as follows:

         a.   The parcel identification number of the subject property (if available). Zoning map amendments that directly affect more than 50 properties owned by a total of at least 50 different property owners are exempted from this specific content requirement.

         b.   The general location or address of the land that is the subject of the application, which may include a location map;

         c.   A description of the action requested and nature of the questions involved;

         d.   The time, date and location of the public hearing and public meeting if applicable and the name of the reviewing body;

         e.   A phone number and e-mail address to contact the City; and

         f.   A statement that more specific information is available at the City.

      2.   Posted Notice. Required posted notice of a public meeting or public hearing shall provide at least the following:

         a.   The general location, parcel identification number, or address of the land that is the subject of the application;

         b.   A description of the action requested;

         c.   The time, date and location of the public hearing and public meeting if applicable and the name of the reviewing body; and

         d.   A phone number and e-mail address to contact the City.

   E.   Notice of Decision.

      1.   Except when notice is provided by permit issuance, notice of decision shall provide at least the following:

         a.   The address of the subject property (if available);

         b.   The general location of the land or parcel identification number that was the subject of the application;

         c.   A description of the application;

         d.   The date the application was decided;

         e.   A description of whether the application was approved, approved with conditions or denied; and

         f.   A phone number and e-mail address to contact the City.

      2.   Unless otherwise stated by general law, the UDO or by the rules of procedure adopted by the applicable reviewing body, within 10 business days following the effective date of a decision, a copy of the decision shall be sent by either electronic notification or first class mailing to the applicant and the property owner (if the property owner is not the applicant) and filed with the City, where it shall be made available for public inspection during regular office hours. In the case of permit issuance, receipt of the permit by the applicant, contractor, property owner or their representative shall constitute written notice of the decision.

      3.   In the case of a quasi-judicial decision, notice of the decision shall also be given to the applicant, the property owner (if the property owner is not the applicant) and each person who has filed a written request for notice with the presiding officer or secretary of the reviewing body (if any) at the time of the hearing of the case, with such notice to be delivered to the requesting party by either personal service or by registered mail or certified mail, return receipt requested.

   F.   Summary of Specific Public Notice Requirements.

      1.   Legislative Hearings. Notice is required for City Council hearings as shown in the following table:

 

      2.   Quasi-Judicial Notice Requirements. Notice is required for quasi-judicial hearings as shown in the following table:

 

 

(Ord. No. O-21-06-15-5, §1, 6-15-21)

   After a permit has been issued or approval obtained from the review authority, no changes or deviations from the terms of the application, permit, or approval, or changes or deviations from the plans or specifications involving any work shall be made until specific written approval of such changes or deviations has been obtained from the appropriate review authority for which the original approval was obtained.

(Ord. No. O-21-06-15-5, §1, 6-15-21)

   The review authority responsible for approving a development permit may revoke and require the return of any permit by notifying the permit holder in writing stating the reason for such revocation. Permits shall be revoked for:

   A.   Any material departure from the approved application, plans, or specifications;

   B.   Refusal or failure to comply with proper orders of the approval or permit;

   C.   Refusal or failure to comply with requirements of the UDO or other applicable local, state and federal requirements; or

   D.   False statements or misrepresentations made in securing such approval or permit.

(Ord. No. O-21-06-15-5, §1, 6-15-21)

   Except as expressly exempted in Sec. 3-2.2., subdivision approval is required in accordance with the procedures of this article, for all divisions of a tract or parcel of land into two (2) or more lots, building sites, or other divisions for the purpose of sale or building development, whether immediate or future, and includes all divisions of land involving the dedication of a new street or a change in existing streets.

(Ord. No. O-21-06-15-5, §1, 6-15-21)

   A.   The following are not included within the definition of "subdivision" and are exempt from the subdivision procedures of this section:

      1.   The combination or recombination of portions of previously subdivided and recorded lots where the total number of lots is not increased and resultant lots are equal to or exceed the standards of the UDO;

      2.   The division of land into parcels greater than 10 acres where no street right-of-way dedication is involved,

      3.   The public acquisition by purchase of strips of land for the widening or opening of streets, or for public transportation system corridors;

      4.   The division of a tract in single ownership into no more than 3 lots where the entire area is no greater than 2 acres, where no street right-of-way dedication is involved, and where the resultant lots are equal to or exceed the standards of the UDO.

   B.   No approval is required for exempt land divisions; however, subdivision administrator certification of exempt status is required. Exempt plats, if prepared, must be certified noting their exemption and signed by the subdivision administrator so that they can be recorded by the McDowell County Office of the Register of Deeds. Exempt subdivision status does not constitute an exemption from the Water Protection requirements.

(Ord. No. O-21-06-15-5, §1, 6-15-21)

   Every person proposing the subdivision of land within the City of Marion planning and development jurisdiction shall submit a plat to the subdivision administrator with the required information necessary to evaluate compliance with the UDO, adopted plans, or other approved design standards and specifications within the Marion Code of Ordinances.

(Ord. No. O-21-06-15-5, §1, 6-15-21)

   A.   A sketch plan is a plan prepared in advance of formal submittal for purposes of receiving informal staff comments, and serves as a pre-application procedure. Although there are no minimum requirements for the content of a sketch plan, applicants are encouraged to provide as much detail as possible. Staff will review the sketch plan and return comments to the applicant in a timely manner to prepare an application and plat for review.

   B.   A sketch plan submittal is required for any action defined as a major subdivision and encouraged for all other subdivisions.

   C.   A sketch plan is recommended for all proposed minor subdivisions prior to formal submission. The subdivision administrator shall review the sketch plan and will notify the applicant in writing of any deficiencies found during the review that must be addressed to be in conformance with the standards established within the UDO prior to formal submittal of a subdivision plat. No fees are required with submittal of a sketch plan. The sketch plan shall contain the following information:

      1.   The boundaries of the tract to be subdivided. The subdivision administrator may require the submittal of evidence including a tax map or survey as proof that the subdivision includes all contiguous land owned by the applicant;

      2.   The proposed street and lot layout;

      3.   The name, address, and telephone number of the applicant;

      4.   The location of existing public water and sewer utilities to serve the subdivision;

      5.   The location of all proposed or existing rights-of-way, easements, drainage, open space;

      6.   Total acreage including gross and net usable acreage;

      7.   Location of water courses, flood hazard boundaries, and/or lands within a protected watershed including the delineation of critical areas and watershed buffer areas.

(Ord. No. O-21-06-15-5, §1, 6-15-21)

   The minor subdivision review process is required for those divisions of land into fewer than five (5) lots which do not require the dedication of public streets, public utilities, or any other easement or conveyance of land to the City of Marion; and do not require modification or variance to any city development regulations.

   A.   The applicant for minor subdivision plat approval shall submit to the subdivision administrator a plat prepared in accordance with N.C.G.S. 47-30 that will be acceptable to the Office of McDowell County Register of Deeds for recording purposes. When more than one sheet is required to include the entire subdivision, all sheets shall be made of the same size and shall show appropriate match lines on each sheet and appropriate references to other sheets of the subdivision. The scale of the plat shall be at one inch equals not more than fifty feet (1 inch = 50 feet). The applicant shall submit a digital plat or three (3) prints of the proposed subdivision plat and the required application form and fee for minor subdivision plat review at the time of submission in conformance with Chapter One, Article One Common Review Procedures.

   B.   The minor subdivision plat shall be prepared by a registered land surveyor licensed to practice in the State of North Carolina and shall contain the following information:

      1.   All of the additional information required by N.C.G.S. 47-30;

      2.   The name of the subdivision, which shall not duplicate the name of any existing subdivision as recorded in the McDowell County Registry;

      3.   The name of the subdivision owner or owners;

      4.   The township, county and state where the subdivision is located;

      5.   The name of the surveyor and their registration number and the date of survey;

      6.   The scale according to which the plat is drawn in feet per inch or scale ratio in words or figures and bar graph;

      7.   All of the applicable certificates required in Sec. 3-2.9;

      8.   Total acreage including gross and net usable acreage;

      9.   Lot lines, lot and block numbers, and dimensions;

      10.   Names of adjoining property owners or subdivisions;

      11.   Location of water courses, culverts, drainage pipes, flood hazard boundaries, and/or lands within a public water-supply watershed including the delineation of critical areas and watershed buffer areas.

      12.   The zoning classification of the tract to be subdivided and of adjoining property;

      13.   The location, width, grade, and purpose of any proposed or existing rights-of-way, utility or other easement;

      14.   The location, width, grade, and name of proposed or existing street and alley, including those on adjoining property;

      15.   All information pertaining to floodplain boundaries in accordance with Sec. 8-1.7 and watershed protection areas in accordance with Sec. 8-2.1.C.

   C.   The subdivision administrator shall review the application for minor subdivision plat approval. A decision shall be rendered within ten (10) working days after receipt of a complete application for the proposed minor subdivision plat. lf no decision is rendered within the required ten-day period, the applicant may appeal to the Board of Adjustment for review of the application under the major subdivision approval procedures in Sec. 3-2.6. Either the subdivision administrator or the applicant may at any time refer the application to major subdivision review.

   D.   If the subdivision contains errors or deficiencies, the subdivision administrator shall furnish the applicant with a written statement of the reasons for disapproval. If a minor subdivision plat is disapproved by the subdivision administrator, the applicant may appeal the decision by requesting that the plat be scheduled for review by the Board of Adjustment according to the same review and approval procedures set forth in Sec. 3-7.5 for administrative appeals. Appeals shall be filed within thirty (30) calendar days of the date of the decision that the subdivision administrator disapproves the plat.

   E.   Approval of any plat is contingent upon the plat being recorded within thirty (30) calendar days after the date the Certificate of Approval is signed by the subdivision administrator or their designee. Failure to record the approved plat within the specified 30-day period shall render the plat null and void.

(Ord. No. O-21-06-15-5, §1, 6-15-21)

   A.   Preliminary plat submittal requirements.

      1.   A preliminary plat is required for all major subdivisions.

      2.   The preliminary plat must be prepared by a registered land surveyor licensed to practice in the State of North Carolina in conformance with the same provisions set forth in Section 3-2.5 above.

      3.   The applicant for preliminary subdivision plat approval shall submit a digital plat or three (3) prints of the proposed subdivision plat and the required application form and fee for major subdivision plat review at the time of submission in conformance with Chapter Three, Art. One Common Review Procedures.

      4.   When more than one sheet is required to include the entire subdivision, all sheets shall be made of the same size and shall show appropriate match lines on each sheet and appropriate references to other sheets of the subdivision. The scale of the plat shall be at one-inch equals not more than one hundred feet (1" = 100').

      5.   The applicant for preliminary subdivision plat approval shall also submit the following documentation:

         a.   A letter of approval for proposed sanitary sewer and water distribution indicating that plans for proposed public sewer and water systems have been reviewed and approved by the city public works director or their designee.

         b.   A Sedimentation Control Plan approved by the North Carolina Land Quality Section shall be submitted with the preliminary plat where there are plans for a land disturbing activity of one acre or more.

         c.   Street plans for major subdivision shall be reviewed and approved by the city public works director or authorized agent prior to preliminary plat approval. Where such streets connect to a state maintained road, a letter from North Carolina Department of Transportation approving such connection shall be submitted with the preliminary plat.

   B.   Administrative Preliminary Plat Review.

      1.   Upon receipt of a complete application for proposed preliminary plat, the subdivision review administrator shall review the preliminary plat for conformance with the city's land development standards and any other reports or recommendations pertaining to the plat.

      2.   The subdivision administrator shall forward a copy of the plat submittal to the Technical Review Committee to complete a review within thirty (30) working days after submittal.

      3.   The subdivision administrator shall draft a report of the Technical Review Committee findings recommending approval, approval with conditions, or denial of the preliminary plat. If all applicable provisions of the UDO or other applicable Marion Code of Ordinances are not met, the plat shall be returned to the applicant with errors and deficiencies noted. Once amended, the application shall be forwarded to the Planning Board and City Council for review and approval.

      4.   If all applicable provisions of this chapter or other City land development regulations are not met, the Applicant may request a variance from the Marion City Council consistent with the procedures for an appeal set forth in Sec. 3-7.5.

   C.   Planning Board Plat Review.

      1.   The Planning Board shall make a recommendation to the City Council to approve, approve with conditions, or deny the preliminary plat within a period of forty-five (45) days of the Technical Review Committee written report. If conditional approval or if disapproval is given, the reasons for such action shall be stated in writing and reference shall be made to the specific reasons that the preliminary plat does not comply.

      2.   Should the Planning Board fail to act on the plat within the prescribed 45-day period, a public hearing shall be scheduled before the city council at the next regularly scheduled council meeting.

   D.   City Council Plat Decision.

      1.   The City Council shall approve, approve with conditions, or deny the preliminary plat at the next regularly scheduled council meeting. If conditional approval or if disapproval is given, the reasons for such action shall be stated in writing and reference shall be made to the specific reasons that the preliminary plat does not comply.

      2.   If the preliminary plat is granted conditional approval by the City Council, the applicant shall revise and resubmit the plat to the subdivision administrator unless such modification is expressly exempt in the conditional approval. If all of the conditions for approval have been met and the plat is otherwise unchanged, the subdivision administrator shall approve the plat.

   E.   Revisions to a preliminary plat. Changes that deviate in the total number of lots, location of rights-of- way, easements, utilities, or other improvements from an approved Preliminary Plat, as determined by the subdivision administrator, must be resubmitted for review and approval as a new submittal.

   F.   Duration of approval. Preliminary plat approval remains valid for one (1) year and may be extended in accordance with the provisions of Sec. 3-2.7. If a final plat in accordance with Sec. 3-2.7 is not submitted within one-year of approval, the said approval of the preliminary plat shall be void.

(Ord. No. O-21-06-15-5, §1, 6-15-21)

   A.   Final plat submittal requirements.

      1.   A Final Major Subdivision Plat is required for all major subdivision requests. Following the approval of the Preliminary Plat by city council and other required plans, a Final Major Subdivision Plat must be approved before recording in the Office of McDowell County Register of Deeds.

      2.   No street shall be accepted and maintained by the City; water or sewer be extended to or connected with any subdivision of land as defined herein; and no permit shall be issued by any administrative agent or department of the City for the construction of any building or other improvement requiring a permit upon any land concerning which a plat is required to be approved unless in conformance with subsection (6) below.

      3.   The final major subdivision plat must be prepared by a registered land surveyor licensed to practice in the State of North Carolina.

      4.   The final plat must conform to the approved preliminary plat and may cover only that portion of the preliminary plat proposed for recordation, together with all improvements, rights-of-way, and easements needed to support the lots shown.

      5.   The final major subdivision plat must have the required certificates and statements entered on the face of the plat in conformance with provisions listed in Sec. 3-2.8 and 3-2.9.

      6.   A final plat may not be approved until all required improvements have been installed and accepted by the city or a performance guarantee has been provided in accordance with Sec. 3-2.24 and a note referencing the guarantee is placed on the final major subdivision plat to be recorded.

   B.   Final plat review and approval.

      1.   The subdivision review administrator shall review the final major subdivision plat for conformance with the approved preliminary plat and all other requirements. If the final major subdivision plat conforms substantially to the approved preliminary plat and all applicable provisions of this and other city codes are met, the subdivision administrator shall approve the final major subdivision plat.

      2.   If the final major subdivision plat does not substantially conform to the approved preliminary plat or all applicable provisions of this and other City regulations are not met, the major subdivision plat shall be returned to the applicant with errors and deficiencies noted, and the Applicant shall resubmit a revised preliminary plat and follow the procedures for review and approval in Sec. 3-2.6.

      3.   Once the major subdivision plat has been approved the applicant can make a request to the city council for the dedication of right-of-way or the conveyance of easement of public improvements.

(Ord. No. O-21-06-15-5, §1, 6-15-21)

Table 3-2.8: Certificates Required

 

(Ord. No. O-21-06-15-5, §1, 6-15-21)

   The following certificates shall be included on the final plat.

   A.   Certificate of ownership. (For use with minor subdivision plats only.)

I (We) hereby certify that I am (we are) the owner(s) of the property described hereon, which property is within the subdivision regulation jurisdiction of the City of Marion, and that I (we) freely adopt this plan of subdivision. I (We) further certify that the residual tract on this plan cannot be further subdivided using the minor subdivision plat approval process within two years of the date of recordation.

 

 

   B.   Certificate of minor subdivision plat approval.

I hereby certify that the minor subdivision shown on this plat does not involve the creation of new public streets or any change in existing public streets, that the subdivision shown is in all respects in compliance with the Marion Subdivision Ordinance, and that therefore this plat has been approved by the Subdivision Administrator, subject to its being recorded in Office of the McDowell County Register of Deeds within thirty (30) days of the date below.

 

 

   C.   Certificate of ownership and dedication. (For use with major subdivision plats only.)

I (We) hereby certify that I am (we are) the owner(s) of the property described hereon, which property is located within the subdivision regulation jurisdiction of the City of Marion, that I (We) hereby freely adopt this plan of subdivision and dedicate to public use all areas shown on this plat as streets, alleys, walks, parks, open space, and easements, except those specifically indicated as private, and that I (we) will maintain all such areas until the offer of dedication is accepted by the appropriate public authority. All property shown on this plat as dedicated for a public use shall be deemed to be dedicated for any other public use authorized by law when such other use is approved by the Marion City Council in the public interest.

 

 

   D.   Certificate of preliminary plat approval.

I hereby certify that the Marion City Council approved on the _____ day of __________/

__________ / __________ the Preliminary Plat of subdivision as shown on this plat. Preliminary Plat approval is valid for a period of 12 months from the above date or as established under an approved development agreement, if applicable.

 

 

   E.   Certificate of final plat approval.

I hereby certify that the subdivision depicted hereon has been granted final plat approval pursuant to the City of Marion Subdivision Ordinance subject to its being recorded in the Office of McDowell County Register of Deeds within thirty (30) days of the date below.

 

 

F.   Certificate of approval of required improvements.

I hereby certify that streets, utilities and other improvements have been installed in an acceptable manner and according to the City specifications in the subdivision depicted hereon or that a performance bond or other sufficient surety in the amount of $ __________ has been posted in the form of __________, Reference Number __________ with the City of Marion to assure completion of required improvements.

 

 

I hereby certify that a guarantee in-lieu of the installation of the required improvements in an amount or manner satisfactory to the City of Marion has been received.

 

 

   G.   Certificate of survey and accuracy.

I, __________ , certify that this plat was drawn under my supervision from an actual survey made under my supervision (deed description recorded in Book __________ , page __________ , etc.) (other); that the boundaries not surveyed are clearly indicated as drawn from information found in Book __________ , page _________ ; that the ratio of precision as calculated is 1:__________ ; that this plat was prepared in accordance with NCGS 47-30 as amended. Witness my original signature, registration number and seal this __________ day of __________ , A.D., __________ .

Seal or Stamp of Surveyor

 

 

   H.   NCDOT District Engineer certificate.

I hereby certify that the streets as depicted hereon are/are not consistent with the requirements of the North Carolina Department of Transportation.

 

 

   I.   Private streets disclosure statement.

The following statement shall be placed on all subdivision plats which include private streets:

"The maintenance of streets designated on this plat as 'private' shall be the responsibility of property owners within this development having access to such streets. Private streets as shown hereon were not evaluated or constructed to the minimum standards required to allow their inclusion, for maintenance purposes, on the North Carolina roadway system nor for maintenance by the City of Marion. Neither the City of Marion nor the North Carolina Department of Transportation will maintain a private street."

   J.   Certificate of approval for recording and watershed protection statement.

The following statement shall be placed on all subdivision plats which include property located within a watershed protection overlay district:

"All or portions of the property contained in this subdivision are located within a protected Watershed. Additional development restrictions regarding such matters as residential density, maximum impervious surface area, and stormwater control measures may apply to this property. Any engineered stormwater controls shown on this plat are to be operated and maintained by the property owners and/or a property owners' association pursuant to the Operation and Maintenance Agreement filed with the Office of McDowell County Register of Deeds in Book _____ , Page _____ .”

1 certify that the plat shown hereon complies with the Watershed Protection Ordinance and is approved by the Watershed Review Board for recording in the Office of McDowell County Register of Deeds.

 

 

NOTICE: This property is located within a protected Watershed. Development restrictions may apply.

   K.   Certificate of purpose of plat. The final plat shall contain one of the following statements, signed and sealed by the surveyor pursuant to G.S. 47-30, as amended:

      1.   This survey creates a subdivision of land within the area of a county or municipality that has an ordinance that regulates parcels of land;

      2.   This survey is located in a portion of a county or municipality that is unregulated as to an ordinance that regulates parcels of land;

      3.   Any one of the following:

         a.   This survey is of an existing parcel or parcels of land and does not create a new street or change an existing street;

         b.   This survey is of an existing building or other structure, or natural feature, such as a water course; or

         c.   This survey is a control survey.

      4.   This survey is of another category, such as the recombination of existing parcels, a court-ordered survey, or other exception to the definition of subdivision; or

      5.   The information available to the surveyor is such that the surveyor is unable to make a determination to the best of the surveyor's professional ability as to provisions contained in (1) through (4) above.

 

 

   L.   Certificate of exemption. Plats deemed to be an exception to the provisions of this Ordinance shall contain the following statement prior to the owner's recording of such plats:

I (We) hereby certify that I am (we are) the owner(s) of the property shown and described hereon, which was conveyed to me (us) by deed recorded in Book _____ , Page _____ , and that said property qualifies as an exception to the provisions of the City of Marion Subdivision Ordinance.

 

 

(Ord. No. O-21-06-15-5, §1, 6-15-21)

   To reduce the time required to attain all necessary approvals and to facilitate the processing of applications, an applicant may elect, at their own risk, to start the subdivision approval process simultaneously with applications for other applications for approvals required for a particular project. When a watershed development plan approval is required, all portions of that plan must be approved prior to Preliminary Plat approval.

(Ord. No. O-21-06-15-5, §1, 6-15-21)

   A.   No construction or installation of improvements shall commence in a proposed subdivision until a subdivision plat has been approved.

   B.   No building or other permits shall be issued for erection of a structure on any lot not of record at the time of adoption of this chapter until all requirements of this chapter have been met. The applicant, prior to commencing any work within the subdivision, shall make arrangements with the Watershed Administrator to provide for adequate inspection.

(Ord. No. O-21-06-15-5, §1, 6-15-21)

   A.   The approval and recordation of a plat constitutes an offer of dedication to the city of the right-of- way of each public street, alley, utility easement, sight distance easement, sidewalk easement, joint/cross-access easement and drainage easement shown on such plat.

   B.   The approval and recordation of a plat does not constitute acceptance of maintenance responsibility within any right-of-way or easement. Improvements within rights-of-way or easements, such as utility lines, street paving, drainage facilities, or sidewalks, may be accepted for maintenance by the City Council.

(Ord. No. O-21-06-15-5, §1, 6-15-21)

   A.   Original subdividers or developers and all subsequent subdividers and developers are responsible for the construction, installation, and maintenance of the following improvements in accordance with the standards in the UDO and Marion Code of Ordinances:

      1.   All streets, sidewalks, and other transportation corridors within the subdivision and improvements to existing streets required for safe and adequate access to the subdivision as may be required by the UDO;

      2.   Traffic control devices;

      3.   Water, sewer and easements;

      4.   Drainage facilities and easements;

      5.   Erosion and sedimentation control devices; and

      6.   Any other on- or off-site improvements required by this article or required at the time of preliminary plat approval.

   B.   If the subdivider files a final plat for only a portion of the subdivision for which a preliminary plat was approved, the improvements required to be constructed, installed, and maintained, and easements provided, in accordance with that record plat must be those improvements that the Public Works Director deems necessary to serve the lots shown on the final plat.

(Ord. No. O-21-06-15-5, §1, 6-15-21)

   A final plat may not be approved until:

   A.   All required improvements have been completed and installed; or

   B.   A performance guarantee has been provided in accordance with Sec. 3-2.24 and all departmental policies and procedures regarding performance guarantees have been met.

(Ord. No. O-21-06-15-5, §1, 6-15-21)

   The subdivision administrator shall not certify, nor shall the clerk of superior court of the county order the McDowell County Register of Deeds to record a plat of a subdivision until approval has been given of the subdivision plat in accordance with the procedures set forth in this chapter, where required, and such approval has been duly evidenced in writing on the original of the subdivision plat.

(Ord. No. O-21-06-15-5, §1, 6-15-21)

   After the subdivision administrator certifies the subdivision plat, it must be recorded in the Office of McDowell County Register of Deeds within thirty (30) calendar days of the date of the certification.

   A preliminary plat shall become void and must be resubmitted to the Technical Review Committee if a final plat is not recorded within one (1) year after preliminary plat approval or if there is a lapse of more than one (1) year between the recordings of phases or sections of the preliminary plat.

(Ord. No. O-21-06-15-5, §1, 6-15-21)

   No person shall transfer or sell with reference to a plat any lot contained within a subdivision lying within the corporate limits of the city, nor shall the city issue a building or zoning permit, until such plat has been granted final approval by the city council or the subdivision administrator in accordance with the procedures set forth in the UDO, and such plat shall have been duly recorded in the Office of McDowell County Register of Deeds.

(Ord. No. O-21-06-15-5, §1, 6-15-21)

   A.   Any person who, being the owner or agent of the owner of any land located within the City of Marion, thereafter subdivides his land in violation of this chapter or transfers or sells land by reference to, exhibition of, or any other use of a plat showing a subdivision of the land before the plat has been properly approved under this chapter and recorded in the Office of McDowell County Register of Deeds, shall be guilty of a misdemeanor.

   B.   The description by metes and bounds in the instrument of transfer or other document used in the process of selling or transferring land shall not exempt the transaction from this penalty.

   C.   The City of Marion may bring an action for injunction of any illegal subdivision, transfer, conveyance, or sale of land, and the court shall, upon appropriate findings, issue an injunction and order requiring the offending party to comply with this chapter.

(Ord. No. O-21-06-15-5, §1, 6-15-21)

   Unless otherwise provided in this Chapter, upon recordation of the final plat, the applicant shall be eligible to apply for building and any other permits required by this Chapter. No certificates of occupancy shall be issued until all improvements are complete and approved by the City.

(Ord. No. O-21-06-15-5, §1, 6-15-21)

   When a development contains common elements, no subdivision plat may be recorded until owners' association documents prepared in accordance with N.C.G.S. Chapter 47C have been recorded in the Office of McDowell County Register of Deeds.

(Ord. No. O-21-06-15-5, §1, 6-15-21)

   A.   Dedication. The approval and recordation of a final subdivision plat constitutes an offer of dedication to the city of any public rights-of-way or easement shown on such plat.

   B.   Acceptance. The approval and recordation of a plat does not constitute acceptance of maintenance responsibility within any right-of-way or easement. Improvements within rights-of-way, such as utility lines, streets, drainage facilities, sidewalks, or open space may be accepted for maintenance by the City Council. The acceptance of a right-of-way or easement shall not be considered by city council until all improvements have been inspected by the public works director or authorized agent, corrections have been made in the field, final as-built construction drawings have been submitted to the City and the warranty on improvements required in Sec. 5-2.7 is completed.

   C.   Conveyance.

      1.   The acceptance of a right-of-way shown on an approved plat shall be dedicated in the form of fee simple marketable title (unencumbered financially and environmentally). For the purpose of this section, greenways and trails used primarily for recreational purposes may be conveyed either in fee simple marketable title (unencumbered financially and environmentally) or as a dedicated easement.

      2.   The acceptance of improvements or open space outside of rights-of-way shown on an approved plat may be dedicated in the form of fee simple marketable title (unencumbered financially and environmentally), or as a dedicated easement to the city.

(Ord. No. O-21-06-15-5, §1, 6-15-21)

   A.   The City may require or allow for the phasing of development where public improvements are proposed in order to maintain satisfactory levels of service for existing public services and facilities or for other reasons based upon maintaining the health, safety, and general welfare of the public.

   B.   If an applicant proposes that a subdivision be constructed in phases, the following procedure shall apply:

      1.   A master plan showing the entire proposed subdivision and all phases of development, proposed density, proposed type and location of utilities, and proposed development timetable shall be submitted to the planning and development department for review along with the submission of a preliminary plat for approval. This provision shall not prohibit additional subdivision of subdivided areas where a master plan was not submitted. However, the master plan submitted for each phase of development shall be subject to meeting all development regulations and standards in place at the time of submission.

      2.   If required, a development agreement shall be entered into by the developer and City to guarantee the completion of public improvements as set forth in this chapter.

(Ord. No. O-21-06-15-5, §1, 6-15-21)

   A.   Authority.

      1.   The city may enter into development agreements as allowed by and subject to the limitations and requirements of Article 10 of G.S. Chapter 160D.

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

   B.   Purpose. A Development Agreement is intended to provide guarantees to the City and developer addressing the provision of public improvements, the phasing of development and other conditions of development when an applicant chooses to record a plat prior to completing improvements or plat contiguous land holdings in multiple phases.

   C.   Applicability. Where the minimum required public improvements for a plat are not complete prior to recording the plat, a development agreement shall be entered into by the developer and City to guarantee the completion of such improvements within the time specified therein. A development agreement shall be required for Planned Unit Developments or other multi-phase projects that require the coordination between the timing of development and the provision of public improvements. Such agreement shall be required prior to recordation of the first plat for the affected property.

   D.   Covenants to Run with the Land. Development Agreements shall bind all successors, heirs and assignees of the applicant, and be recorded with the Office of McDowell County Register of Deeds.

   E.   Other Contents of the Development Agreement. The City Council may include any of the following within a Development Agreement: performance guarantee for public improvements, phasing plans, project specific development standards or review procedures, or other matters that the City Council finds are appropriate to ensure that the development proceeds in accordance with approved plans.

   F.   Temporary Improvements. The applicant shall construct, pay for, and maintain any temporary improvements required by the City, such as, but not limited to, streets, turn-outs, or utilities to facilitate emergency services and life safety operations.

   G.   Governmental Units. Governmental units to which these improvement and security provisions apply may file, in lieu of a Development Agreement and security, an ordinance or similar document, agreeing to be bound by the provisions of these regulations.

   H.   Decision Maker. The City Council shall approve, approve with conditions, or deny the Development Agreement. Guarantor: The guarantor of any escrow or bond shall be reviewed by the City Attorney prior to approval by city council.

(Ord. No. O-21-06-15-5, §1, 6-15-21)

   A.   Guarantee required. Whenever an applicant chooses to record before completing required public improvements, the applicant shall be required to provide a sufficient guarantee for completion of the required public improvements. The guarantee shall be in the form of cash, letter of credit, escrow or surety bond naming the City as the beneficiary pursuant to N.C.G.S. 160D-804, as amended.

   B.   Amount of guarantee. The guarantee shall be in an amount equal to one hundred twenty-five percent (125%) of the estimated cost of improvements as shown on the approved construction plan, shall be signed and sealed by an engineer licensed to practice in North Carolina, and shall be sufficient to cover all promises and conditions contained in the Development Agreement. The City reserves the right to verify the estimated cost of improvements shown on the approved construction plan with a third- party engineer licensed to practice in North Carolina and any expense shall be assessed to the applicant as a cost recovery fee.

   C.   Completion of public improvements. The City Council may defer the completion of required improvements provided the applicant guarantees completion of all required public improvements no later than two (2) years following the date of Final Plat approval. The Council may grant one (1) extension for up to two (2) years. Developers of multi-phase developments may be required to complete and dedicate those improvements necessary for initial development to occur in accordance with the terms of the development agreement.

   D.   Final plat recording. Once the development agreement is approved by city council and the required financial guarantee is provided by the developer, the final plat may be approved or the Certificate of Occupancy may be issued if all other requirements of this chapter and other land development regulations are met. The approved and executed Development Agreement shall be recorded in the Office of Register of Deeds.

   E.   Duration of performance guarantees. The duration of a performance guarantee must be of a reasonable period to allow for completion and acceptance of improvements. In no case may the duration of the performance guarantee exceed two (2) years, unless the guarantee is extended with the consent of city council. The city may release a portion or all of any financial guarantee posted as the improvements are completed and approved by the city council. All infrastructure necessary to serve off-site development must be completed before final release of the financial guarantee.

   F.   Default.

      1.   Public improvements. Developments with public improvements that are not completed and accepted at least 30 calendar days before the expiration of the performance guarantee will be considered to be in default. Upon default the surety bonding company or the financial institution holding the escrow account must, if requested by the city, pay to the city all or any portion of the bond or escrow fund in an amount deemed necessary by the city to complete the improvements.

      2.   Private improvements. With the exception of stormwater controls or other improvements to remain privately owned, developments with private improvements that are not completed and accepted at least 30 calendar days before the expiration of the performance guarantee will be considered to be in default. Upon default the surety bonding company or the financial institution holding the escrow account must, if requested by the city, pay to the city all or any portion of the bond or escrow fund in an amount deemed necessary by the city to have the improvements completed. Upon payment, the city shall require completion of all required improvements and shall use such funds or portion thereof from the bond or escrow account to reimburse costs for all or any portion of the required improvements. Default on a project does not release the original applicant or developer and all subsequent applicants and developers from liability and responsibility for completion of the required improvements.

(Ord. No. O-21-06-15-5, §1, 6-15-21)

   A.   No subdivision plat of land within the Watershed protection shall be filed or recorded in the Office of McDowell County Register of Deeds until it has been approved in accordance with the provisions of this Article. Likewise, the Clerk of Superior Court shall not order or direct the recording of a plat if the recording of such plat would be in conflict with this Article.

   B.   The approval of a plat does not constitute or effect the acceptance by the City of Marion or the public of the dedication of any street or other ground, easement, right-of-way, public utility line, or other public facility shown on the plat and shall not be construed to do so.

   C.   All subdivisions shall conform with the mapping requirements contained in N.C.G.S. 47-30.

   D.   All subdivisions of land within the jurisdiction of the City of Marion after the effective date of the UDO shall require a plat to be prepared, approved, and recorded pursuant to this chapter.

(Ord. No. O-21-06-15-5, §1, 6-15-21)

   A.   All proposed subdivisions shall be reviewed prior to recording in the Office of McDowell County Register of Deeds by submitting a vicinity map to the Watershed Administrator to determine whether or not the property is located within the designated Watershed protection. Subdivisions that are not within the designated watershed area shall not be subject to the provisions of this article and may be recorded provided the Watershed Administrator initials the vicinity map. In addition, subdivisions within a WS-IV watershed are subject to the provisions of this article only when an erosion and sedimentation plan is required under the provisions of State law, or approved local program. Subdivisions within the designated watershed area shall comply with the provisions of this article and all other state and local requirements that may apply.

   B.   Subdivision applications shall be filed with the Watershed Administrator. The application shall include a completed application form, a digital copy of the proposed plat or two (2) print copies of the proposed plat and supporting documentation deemed necessary by the Watershed Administrator or the Watershed Review Board.

   C.   The Watershed Administrator shall review the completed application and shall either approve, approve conditionally or disapprove each application. The Watershed Administrator shall take final action within forty-five (45) days of submission of the application. The Watershed Administrator or the Board may provide public agencies an opportunity to review and make recommendations. However, failure of the agencies to submit their comments and recommendations shall not delay action within the prescribed time limit. Said public agencies may include, but are not limited to, the following:

      1.   The district highway engineer with regard to proposed streets and highways.

      2.   The director of the Health Department with regard to proposed private water system or sewer systems normally approved by the Health Department.

      3.   The state Division of Water Quality with regard to proposed sewer systems normally approved by the Division, engineered storm water controls or storm water management in general.

      4.   Any other agency or official designated by the Watershed Administrator or Watershed Review Board.

      5.   If the Watershed Administrator approves the application, such approval shall be indicated on both copies of the plat by applying the water supply watershed protection certificate and having the plat signed by the Watershed Administrator.

   D.   If the Watershed Administrator disapproves or approves conditionally the application, the reasons for such action shall be stated in writing for the applicant and entered in the minutes. The applicant may make changes and submit a revised plan which shall constitute a separate request for the purpose of review.

   E.   All subdivision plats shall comply with the requirements for recording in the Office of McDowell County Register of Deeds.

   F.   The plat shall be recorded within thirty (30) days of approval. The Applicant shall provide the Watershed Administrator with evidence the plat has been recorded in the Office of McDowell County Register of Deeds within five (5) working days.

(Ord. No. O-21-06-15-5, §1, 6-15-21)

   A.   Sketch Plan.

      1.   A sketch plan is a plan prepared in advance of formal submittal for purposes of receiving informal staff comments. Although there are no minimum requirements for the content of a sketch plan, applicants are encouraged to provide as much detail as possible. Staff will distribute such sketch plans received and convey comments to the applicant in a timely manner.

      2.   A sketch plan is required for subdivisions of five (5) or more lots and encouraged for all other development.

   B.   Plot Plans. If a site plan is not otherwise required, the following development activities require submittal of a plot plan prepared in accordance with the approved plot plan standards pursuant to Sec. 3-4.3.A.

      1.   Construction of or additions to single-family and two-family dwellings, and accessory buildings;

      2.   Expansions of buildings, parking areas, or open areas of land where the amount of the expansion area does not exceed 3,000 square feet;

      3.   Co-location on an existing wireless telecommunications facility that meets the wireless telecommunications facilities standards of Chapter Six, Art. Eight Telecommunications.

      4.   Installation of temporary sales or construction office in association with a development project having an active building permit;

      5.   Paving a lawfully created existing gravel parking lot that has 15 or fewer spaces.

      6.   Establishment of temporary uses and mobile food vendor.

   C.   Site Plans. For all other site developments a site plan shall be prepared in accordance with Sec. 3-4.3.B.

(Ord. No. O-21-06-15-5, §1, 6-15-21)

   A.   No site plan or plot plan will be approved prior to approval of the underlying zoning district.

   B.   No permanent improvements may be installed and no building permit will be issued for any development activity until a site plan or plot plan is approved.

(Ord. No. O-21-06-15-5, §1, 6-15-21)

   A.   Plot Plan.

      1.   The location and dimensions of proposed and existing structures.

      2.   The location of existing and proposed driveway, sidewalks, streets and rights-of-way.

   B.   Site Plan. No other zoning or building permit shall be issued on a lot until a site plan has been approved submitted and reviewed for the development. No new or amended site plan shall be required if an adequate site plan is already on file, no increase in or rearrangement of parking is proposed or required, and no increase in impervious surface is proposed or required.

   Site plans submitted for approval must be drawn to a scale of not less than one (1) inch equals one hundred (100) feet by an engineer, land surveyor, architect or other qualified professional and shall show the following information on one (1) or more sheets:

      1.   Location and dimensions of all existing and proposed structures and setbacks from right-of-way and property lines. If no right-of-way exists, indicate distance from traveled way.

      2.   Location of all utilities (water and sewer lines, manholes, power lines, streetlights, and drainage structures). Include diameter and materials used on new water and sewer lines.

      3.   Location of internal and external streets, rights-of-way, sidewalks, entrances and exits.

      4.   Parking lots indicating individual spaces, loading zones, and handicap parking. Adequate information to determine parking requirements.

      5.   Landscape plan as required by Sec. 3-4.7.

      6.   Location of dumpsters and other refuse areas including screening/ buffering plan.

      7.   Location and picture of proposed and existing signage as well as sign permits

      8.   Pervious to non-pervious calculations.

      9.   All water, sewer, drainage, erosion control and street facilities plans (including driveway permit) shall be submitted to the appropriate official or agency prior to the final approval of the site plan (if applicable.)

(Ord. No. O-21-06-15-5, §1, 6-15-21)

   A.   General. Site plan review may proceed concurrently with a building plan review, an application for a certificate of appropriateness, or may follow submittal of an application for other applications for approval required for the particular development.

   B.   With Special Use Permit.

      1.   Compliance with Approved Permit. All other permits issued for any development activity on a property subject to a special use permit pursuant to Sec. 3-7.1 must comply with the approved special use permit.

      2.   Submission of Site Plans. Site plans for any development made pursuant to any special use permit are submitted for review in the same manner as other site plans required by the UDO.

(Ord. No. O-21-06-15-5, §1, 6-15-21)

   A.   A site plan must be prepared in accordance with site plan review standards in accordance with this Article and submitted to the planning and development department in accordance with Article One of this chapter.

   B.   For plans requiring Technical Review Committee Review Sec. 2-4.1.C. that meet the requirements of the UDO, the plan will be placed on the agenda for the next scheduled Technical Review Committee meeting.

(Ord. No. O-21-06-15-5, §1, 6-15-21)

   A.   Site Plans and Plot Plans.

      1.   Site plans and plot plans satisfying the review standards in Sec. 3-4.3 must be approved, and the applicant may proceed with other requirements necessary to obtain a building permit.

      2.   If the plan is granted conditional approval, the applicant has 30 days to revise and resubmit the plan to the planning and development department. If all of the conditions for approval have been met and the plan is otherwise unchanged, the Planning Director or their designee must approve the plan. If the plan is not revised within 30 days to meet the approval conditions, or the applicant notifies the planning and development department that no more revisions to the site plan will be made, the plan must be deemed denied.

(Ord. No. O-21-06-15-5, §1, 6-15-21)

   A.   A landscape plan must be prepared in accordance with the requirements of the standards in Chapter 6, Art. Three and approved before installation of plant material.

      1.   Certificate of Occupancy. All required plant material must be installed and approved prior to the issuance of a final Certificate of Occupancy by the planning and development department.

      2.   Temporary Certificate of Occupancy.

         a.   The Chief Building Official may issue a Temporary Certificate of Occupancy for a period of up to 90 days if, at the time of a request for a Certificate of Occupancy, the required planting areas are not complete and it can be determined that:

            i.   Plant materials are temporarily unavailable but will be available within 90 days, or

            ii.   Completion of the planting areas would jeopardize the health of the plant materials; or

            iii.   Weather conditions are not conducive to planting.

         b.   In order to receive a Temporary Certificate of Occupancy, the landowner must submit a copy of a signed contract for installation of the required planting areas and must post a surety equal to the amount of the contract.

      3.   The Chief Building Official may not issue a final Certificate of Occupancy until the planting areas have been completed and approved.

(Ord. No. O-21-06-15-5, §1, 6-15-21)

   A.   Plan Required. A construction and utility plan for all street, water, and sanitary sewer facilities must be submitted to the city following preliminary plat review but may not be reviewed until the street and utility network on the preliminary plat has been found generally satisfactory by the Technical Review Committee. For each subdivision section, the construction and utility plans must include all improvements lying within or adjacent to that section, as well as all water, and sanitary sewer lines lying outside that section and being required to serve that section. No construction and utility plan may be approved until the preliminary plat has been approved.

   B.   Decision-making Authority. The Public Works Director has final decision-making authority for all construction and utility plans, except as otherwise expressed elsewhere in the City of Marion Code of Ordinances.

   C.   Coordination with Other Plans. Where public or private street, sidewalk, water, private drives or sanitary sewer is shown on a preliminary subdivision plat, the street and utility construction plans must be submitted following approval of the plat.

   D.   Subdivision, Including Group Development. Where public or private street, sidewalk, water, or sanitary sewer facility construction is shown on a subdivision preliminary plat, the construction and utility plans must be submitted following approval of the preliminary plat.

   E.   No Construction without Plan Approval. None of the improvements listed above may be constructed until the construction and utility plans for such improvements have been reviewed and approved.

   F.   Duration of Plan Approval. If construction or development activity does not begin within 2 years following plan approval, or is begun and then discontinued for a period greater than 180 calendar days, approval expires and a new application must be submitted in accordance with this section.

   The discontinuance of installation of streets or utilities longer than 180 days may be subject to performance guarantees pursuant to Sec. 3-2.24.

   G.   Inspections. Work performed pursuant to approved construction and utility plans must be inspected and approved, and any required easements recorded, prior to issuance of a final certificate of occupancy.

(Ord. No. O-21-06-15-5, §1, 6-15-21)

   Easements over public utility lines needed to serve the site, which are located on-site or off-site, shall be provided in accordance with the provisions of G.S. 160D-804.

(Ord. No. O-23-07-18-4, § 3, 7-18-23)

   A.   Plan Required. A watershed development plan is required in accordance with the requirements of this section, must be submitted to the watershed administrator and must include all applicable information listed in Chapter. The watershed management plan may be combined with any required site development plan.

   B.   Plan Approval. The Technical Review Committee is authorized to approve the watershed management plan if it is in conformance with the requirements of the UDO for watershed protection. Timing of approval must be as follows:

      1.   Site Plans. The watershed management plan must have approval prior to or concurrent with site plan approval.

      2.   Preliminary Subdivision Plats. The watershed management plan must have approval prior to or concurrent with preliminary subdivision plat approval except that when a watershed management improvement is proposed, the construction plan details including proposed grading, dimensions, calculations, etc. for the proposed improvement may be approved following preliminary subdivision plat approval. The construction plan details and separate maintenance plan must be approved prior to issuance of any permits as specified in this section.

   C.   Approved Plan a Prerequisite. The watershed.administrator is not authorized to issue any permits for development on any land unless and until a watershed management plan, that is in compliance with the requirements of this section, has been approved.

   D.   Review Criteria. Plans that meet the following criteria must be approved:

      1.   It is in compliance with all applicable UDO requirements and other related City policies;

      2.   It is in compliance with all previously approved applicable plans; and

      3.   It takes into account topography and other significant natural features.

   E.   Duration of Plan Approval. If construction or development activity does not begin within 2 years following Plan approval, or is begun and then discontinued for a period greater than 180 days, approval expires and a new application must be submitted in accordance with this section.

   F.   Revisions to Approved Plans.

      1.   Limited revisions to the approved Plan, such as those resulting from field conditions or which result in an equal or better performance, may be approved by the Planning and Development Director.

      2.   Substantial changes to the approved Plan, as determined by the Planning and Development Director in accordance with the criteria of Sec. 3-7.1.G, must be resubmitted for approval. A plan resubmitted for approval is processed as if it were a new application.

(Ord. No. O-21-06-15-5, §1, 6-15-21)

   A.   If a plan has been denied or granted conditional approval, the applicant may appeal to the Board of Adjustment in accordance with Sec. 3-7.5.

(Ord. No. O-21-06-15-5, §1, 6-15-21)

   A.   Purpose. A zoning permit shall be required for the construction or development of any new use within the planning and regulation jurisdiction of the City of Marion. In addition to new uses a zoning permit shall also be required for expansions of existing uses, as well as for changes of use.

   B.   Pre-application procedure. No pre-application conference is required prior to applying for a zoning compliance permit. Applicants are encouraged to call or visit the planning and development department prior to requesting a zoning permit to determine what information is required for the application.

   C.   Application submittal.

      1.   Filing of application. An application for a zoning compliance permit may be filed by the owner of the property or by an agent, specifically authorized by the owner to file such application. Where an agent files the application, the agent shall provide documentation that the owner of the property has authorized the filing of the application.

      2.   Information required. Each application for a zoning compliance permit shall contain the information required on the application form, including a site plan showing the dimensions of the proposed use and its location on the property or site. Other information necessary to show that the use or structure complies with the standards set forth in this chapter shall also be provided.

      3.   Annual zoning permits. An annual zoning compliance permit is required for certain land uses including mobile food vendors, off-premise advertising signs, and other temporary uses and structures as defined within the UDO. Annual zoning permits must be renewed each year before the expiration date and in accordance with the terms of the UDO. Failure to timely renew the annual zoning permit will result in an expiration of that permit, and can result in a voluntary forfeiture of all legal rights and claims to continue that use.

      4.   Staff review. The planning and development director or their designee shall review the application and determine whether it is complete within five working days of its submittal. If the application is found to be incomplete, the planning and development director shall notify the applicant of any deficiencies. No further steps shall be taken to process the application until the applicant corrects the deficiencies. The planning and development director shall issue a zoning compliance permit only upon finding that the proposed use or structure satisfies the requirements set forth in the UDO.

      5.   Public notification. No public notification is required for zoning compliance permit application.

      6.   Formal review. No formal review of zoning permit application is required. Requests shall be reviewed by appropriate city staff to assure compliance with all applicable regulations and requirements.

      7.   Variance. Requests for variances from the requirements requiring a zoning compliance permit shall be heard by the board of adjustment under the procedures established in Sec. 3-7.2.

      8.   Administrative Appeal. An appeal of a decision of the planning and development director shall be heard by the board of adjustment under the procedures established by Sec. 3-7.2.

      9.   Permit validity. Upon the approval of a zoning permit, the applicant shall have one year to obtain the required building permit(s). Failure to commence building permits within this time shall render the zoning permit void. The planning and development director may grant a single extension of this time period of up to six months upon submittal by the applicant of sufficient justification for the extension. Upon issuance of a building permit(s), the zoning permit shall remain valid as long as a valid building permit exists for the project. Any unapproved change in the approved plans shall render the zoning permit invalid.

      10.   Violations. Violations of the conditions of the zoning compliance permit shall be considered a violation of the UDO and shall be subject to the enforcement and penalty provisions set forth in Chapter One of the Marion Code of Ordinances.

(Ord. No. O-23-07-18-4, § 4, 7-18-23)

   A.   A building permit shall be required pursuant to this Chapter unless expressly exempt pursuant to subsection B below.

   B.   Exceptions. A building permit shall not be required under the following conditions:

      1.   The connection of a water heater in a one- or two-family dwelling unit that is being replaced, provided that the work is performed by a person licensed under G.S. § 87-21, who personally examines the work at completion and ensures that a leak test has been performed on the gas piping, and provided the energy use rate or thermal input is not greater than that of the water heater which is being replaced, there is no change in fuel, energy source, location, capacity, or routing or sizing of venting and piping, and the replacement is installed in accordance with the current edition of the State Building Code.

      2.   The repair or replacement of electrical lighting fixtures or devices in a one- or two-family dwelling unit, such as receptacles and lighting switches, or for the connection of an existing branch circuit to an electric water heater that is being replaced, provided that all of the following requirements are met:

         a.   With respect to electric water heaters, the replacement water heater is placed in the same location and is of the same or less capacity and electrical rating as the original.

         b.   With respect to electrical lighting fixtures and devices, the replacement is with a fixture or device having the same voltage and the same or less amperage.

         c.   The work is performed by a person licensed under G.S. § 87-43.

         d.   The repair or replacement installation meets the current edition of the State Building Code, including the State Electrical Code.

      3.   The installation, maintenance, or replacement of any load control device or equipment by an electric power supplier, as defined in G.S. § 62-133.8, or an electrical contractor contracted by the electric power supplier, so long as the work is subject to supervision by an electrical contractor licensed under Article 4 of Chapter 87 of the General Statutes. The electric power supplier shall provide such installation, maintenance, or replacement in accordance with:

         a.   An activity or program ordered, authorized, or approved by the North Carolina Utilities Commission pursuant to G.S. § 62-133.8 or G.S. § 62-133.9; or

         b.   A similar program undertaken by a municipal electric service provider, whether the installation, modification, or replacement is made before or after the point of delivery of electric service to the customer. The exemption under this subdivision applies to all existing installations.

      4.   Pursuant to G.S. Chapter 143 Articles 9 and 9C, no permit shall be required for any construction, installation, repair, replacement, or alteration performed in accordance with the current edition of the North Carolina State Building Code and costing fifteen thousand dollars ($15,000) or less in any single family residence or farm building unless the work involves any of the following:

         a.   The addition, repair or replacement of load bearing structures. However, no permit is required for replacements of windows, doors, exterior siding, or the pickets, railings, stair treads, and decking of porches and exterior decks.

         b.   The addition or change in the design of plumbing. However, no permit is required for replacements otherwise meeting the requirements of this subsection that do not change size or capacity.

         c.   The addition, replacement or change in the design of heating, air conditioning, or electrical wiring, devices, appliances, or equipment, other than like-kind replacement of electrical devices and lighting fixtures.

         d.   The use of materials not permitted by the North Carolina Residential Code for One and Two- Family Dwellings.

         e.   The addition, excluding replacement, of roofing.

(Ord. No. O-21-06-15-5, §1, 6-15-21)

   A floodplain development permit shall be required in conformance with the common review procedures of this chapter and the requirements of Chapter Eight, Article One of the UDO prior to the commencement of any development activities within special flood hazard areas.

(Ord. No. O-21-06-15-5, §1, 6-15-21)

   A.   Before submitting an application for any development approval, applicants are encouraged to schedule a pre-application consultation with the planning and development department to discuss the procedures, standards and regulations required for development approval in accordance with the UDO.

   B.   A pre-application consultation with the planning director or their designee is mandatory prior to the following development reviews:

      1.   Zoning Map Amendment

      2.   Comprehensive Plan Amendment

      3.   Special Use

      4.   Historic Landmark or District Designation

      5.   Major Subdivision

   C.   The planning director may establish guidelines for conducting pre-application consultations, which may include alternatives to face-to-face meetings, such as telephone conversations and email correspondence.

(Ord. No. O-21-06-15-5, §1, 6-15-21)

   A.   Applicability.

      1.   The City Council may consider an amendment to the Comprehensive Plan not in association with a Zoning Map Amendment, as may be required from time to time, with a recommendation from the Planning Board.

      2.   The City Council may also consider an amendment to the Comprehensive Plan when a Zoning Map Amendment application is in direct conflict with the Comprehensive Plan, as determined by the Planning and Development Director. City Council may also establish policy guidelines as to what amendments constitute a direct conflict and require an amendment.

   B.   Coordination with Zoning Map Amendment. When required, an application for a plan amendment must be submitted and reviewed concurrently with a zoning map amendment application.

   C.   Pre-application Consultation. In order to determine whether a plan amendment is required, a pre- application consultation is required in accordance with pre-application consultation requirements of Sec. 3-5.4 above.

   D.   Submittal Requirements.

      1.   An application for a plan amendment must be prepared in accordance with the common review

procedures of this chapter and submitted to the planning and development department.

      2.   Zoning Map Amendment applications must be submitted to the planning and development department at least 45 days before the meeting of the Planning Board at which the application is to be considered.

   E.   Planning Board Review.

      1.   Comprehensive Plan Amendment without Zoning Map Amendment.

         a.   Before making any recommendation on a plan amendment, the Planning Board must consider any recommendations from the Planning and Development Director and must conduct a public meeting.

         b.   Notice and public meeting requirements must be provided in accordance with Sec. 3-1.7.

         c.   The applicant or an agent of the applicant is encouraged to appear at the meetings to explain why the Comprehensive Plan should be changed.

         d.   Following the close of the public meeting, the Planning Board shall make a recommendation on the amendment to the City Council.

         e.   If the Planning Board fails to make a recommendation within 45 days of an item being placed on a Board meeting agenda, City Council may proceed to hear the application.

      2.   Comprehensive Plan Amendment with Zoning Map Amendment.

         a.   Before reviewing a plan amendment that is accompanied by a zoning map amendment, the Planning Board must consider any recommendations from the Planning and Development Director and comment on the proposed amendment.

         b.   The accompanying zoning map amendment with the Planning Board's comments on the proposed plan amendment shall be forwarded to City Council for their consideration and final decision.

   F.   Criteria for Planning Board Recommendations. The recommendations of the Planning Board to the City Council must show that the Planning Board has studied and considered the proposed change in relation to the following, where applicable:

      1.   Whether the proposed change would be consistent with the intent, goals, objectives, policies, guiding principles and programs of any adopted plans;

      2.   Whether the proposed change would be compatible with the existing land use pattern and designated future land uses; and

      3.   Whether the proposed change would meet the Comprehensive Plan amendment criteria.

   G.   City Council Final Action. The City Council must hold a public hearing on all applicable Comprehensive Plan amendments and take appropriate action following the hearing.

(Ord. No. O-21-06-15-5, §1, 6-15-21)

   A.   General. Zoning district boundaries as shown on the Official Zoning Map may be amended, supplemented, changed, modified, or repealed in accordance with the procedures of the UDO.

   B.   Authority to File.

      1.   General Districts and Overlay Districts. A proposal to amend the official zoning map may be initiated by the City Council; any city board, commission, or department; or any person who resides or owns real property in the City of Marion.

      2.   Planned Unit Development Districts. Only the property owners of all the property to be included in the district may apply for a zoning map amendment.

   C.   Submittal Requirements.

      1.   Zoning Map Amendment applications must be prepared in accordance with the common review procedures of this chapter and submitted to the planning and development department.

      2.   Zoning Map Amendment applications must be submitted to the planning and development department at least 45 days before the meeting of the Planning Board at which the application is to be considered.

   D.   Planning Board Review and Recommendation.

      1.   The Planning Board must hold a public hearing on all zoning amendment applications.

      2.   Published, mailed and posted notice of the Planning Board public hearing must be provided in accordance with Sec. 3-1.7.

      3.   The Planning and Development Director must present the zoning map amendment application to the Planning Board, together with staff’s recommendations, at the first regularly scheduled meeting following proper filing and notice of the application unless the case is continued pursuant to subsection (H) below.

      4.   Following the close of public comment, the Planning Board shall take action on the amendment. The Planning Board must advise and comment on whether the proposed amendment is consistent with the Comprehensive Plan, and it must adopt a written statement that addresses consistency between the proposed amendment and the Comprehensive Plan and other matters as deemed relevant by the Planning Board. A proposed amendment that is inconsistent with the Comprehensive Plan does not preclude approval of the proposed amendment.

   E.   City Council-Final Action.

      1.   The City Council must hear only those zoning map amendment applications that have been heard by the Planning Board. Upon receipt of recommendations, the City Council must hold a public hearing on such applications.

      2.   The City Council must adopt a written statement that addresses consistency between the proposed amendment and the Comprehensive Plan and other matters as deemed relevant by the City Council. A proposed amendment that is inconsistent with the Comprehensive Plan does not preclude approval of the proposed amendment.

   F.   Successive Applications.

      1.   No application for a zoning map amendment to the same district on a given property or portion thereof may be filed within a one-year period from:

         a.   The date of final action by the City Council; or

         b.   The date of the public hearing or scheduled public hearing before the City Council if such application is withdrawn less than 24 days prior to such public hearing or scheduled public hearing.

      2.   No more than two (2) zoning map amendment applications may be filed for a given property or portion thereof within any one-year period.

      3.   Any application for zoning map amendment that is initiated by the City Council or Planning Board will not be considered in determining the number of applications, their timing, filing, or any subsequent waiting periods for other applications as set forth in paragraphs (1) and (2), above.

   G.   Application Withdrawal. A zoning map amendment application may be withdrawn by the applicant by filing a written notice of withdrawal with the planning and development department at least 24 days before the Planning Board meeting at which the application is intended to be heard. Applications may be withdrawn after the 24-day period only by action of the Planning Board or City Council at the time of the scheduled public hearing on the subject application.

   H.   Continuance. The Planning Board or City Council may continue a zoning map amendment for up to 2 months if the reason for the continuance is stated in the motion to continue. Continuances may be granted for a longer period if they are mutually agreed to by all affected parties. Upon failure of the Planning Board to act upon an amendment following all proper continuances, the petitioner may take the amendment to the City Council without a recommendation from the Planning Board.

   I.   Establishment of Original Zoning. The procedure for establishment of original zoning – applied at the time additional territory is brought under the jurisdiction of the UDO by annexation or otherwise – is the same as required under the Zoning Map Amendment procedures with regard to common review procedures and continuance and follows the map amendment procedures of this chapter with regard to voting by the Planning Board and action by the City Council. When the City Council initiates the original zoning, it is not necessary to provide a metes and bounds description, provided that local government planning maps clearly delineate the area involved and the proposed zoning classification.

(Ord. No. O-21-06-15-5, §1, 6-15-21)

   A.   General. The text of this chapter may be amended, supplemented, changed, modified, or repealed in accordance with the procedures of this section.

   B.   Authority to File. A proposal to amend the text of the UDO may be initiated by the City Council; any city board, commission, or department; or any person.

   C.   Filing. Proposals to amend the text of the UDO must be prepared in accordance with the common review procedures pursuant to common review procedures in this chapter and submitted to the planning and development department.

   D.   Planning Board – Review and Recommendation.

      1.   The Planning Board must hold a public meeting on all proposed text amendments.

      2.   Following the close of public comment, the Planning Board may vote to recommend that the City Council approve, approve with revisions or deny the proposed text amendment. The Planning Board is also authorized to forward the proposed text amendment to the City Council with no recommendation.

   E.   City Council – Final Action.

      1.   The City Council must hold a public hearing on all text amendments.

      2.   Following the close of the public hearing, the City Council shall vote to approve, approve with revisions or deny the text amendment.

   F.   Continuance. The Planning Board or City Council may continue a text amendment for up to 2 months if the reason for the continuance is stated in the motion to continue. Continuances may be granted for a longer period if they are mutually agreed to by all affected parties. Upon failure of the Planning Board to act upon a text amendment following all proper continuances, or if no action is taken, the applicant may take the text amendment to the City Council without a recommendation from the Planning Board.

(Ord. No. O-21-06-15-5, §1, 6-15-21)

   An application for a special use permit must be signed by the owner of the subject property.

   A.   Filing. An application for special use must be prepared in accordance with the common review procedures pursuant to common review procedures of this chapter and submitted to the planning and development department at least 45 days prior to the meeting of the Board of Adjustment at which such an application is to be considered.

   B.   Procedure. Applications for special use must be processed, considered, and voted upon in accordance with Article 1 Common Review Procedures.

   C.   Evidence at Hearing. All evidence presented at public hearings on a special use request must be under oath.

   D.   Required Findings.

      1.   The special use request must be granted by the Board of Adjustment when all of the following findings have been made:

         a.   That the proposed use will not be detrimental to the health or safety of persons residing or working in the vicinity or injurious to property or improvements in the vicinity;

         b.   That the proposed use at the particular location provides a service or facility that will contribute to the general well-being of the neighborhood or the community; and

         c.   That the location and character of the proposed use will be in harmony with the area in which it is to be located and in general conformity with the Comprehensive Plan.

      2.   lf the Board of Adjustment does not make these findings, then the special use request may not be granted.

      3.   Review Factors. The applicant must demonstrate that the review factors listed below have been adequately addressed. If an application is denied, the decision-making body must specify which of these review factors were not adequately addressed.

         a.   Circulation. Number and location of access points to the property and the proposed structures and uses are provided with particular reference to automotive, bicycle, and pedestrian safety and convenience, traffic flow and control, and access in case of fire or catastrophe.

         b.   Parking and Loading. Location of off-street parking and loading areas are sufficiently provided.

         c.   Service Entrances and Areas. Locations of refuse and service areas are provided with particular reference to ingress and egress of service vehicles.

         d.   Lighting. Locations of exterior lighting are provided with reference to glare, traffic safety, economic effect and compatibility with other property in the area.

         e.   Signs. Appropriateness of signs considering location, height, size, and design within the context of other property in the area.

         f.   Utilities. Location and availability of utilities is provided.

         g.   Open Spaces. Location of required yards and other open spaces and preservation of existing trees and other natural features is provided.

         h.   Environmental Protection. Is in compliance with landscape, floodplain, watershed, wetlands, steep slopes, open space and other natural feature requirements.

         i.   Screening, Buffering and Landscaping. Installation of screening, buffering, fencing and landscaping where necessary to protect adjacent property is provided.

         j.   Effect on Adjacent Property. Effects of the proposed use on nearby property, including, but not limited to, the effects of noise and odor are mitigated.

         k.   Compatibility. The level of general compatibility with nearby properties and the appropriateness of the use in relationship to other properties are provided.

   E.   Greater Restrictions. In granting a special use request, the Board of Adjustment may impose more restrictive requirements as deemed necessary to advance the purposes and intent of the UDO, provided that such requirements are directly related to the impacts of the proposed use, and agreed to in writing by the applicant.

   F.   Permit Perpetually Binding. Unless expired or discontinued, approved special use requests must be perpetually binding upon the property unless subsequently changed or amended in accordance with this section or a use otherwise permitted in the zoning district is established.

   G.   Substantial Changes, Amendments, and Modifications to a Special Use Approval. 

      1.   The Planning and Development Director is authorized to determine when a development proposal constitutes a substantial change to a condition of approval imposed through a special use permit or other development approval process, in accordance with the following regulations.

         a.   A change will be deemed substantial if it:

            i.   Decreases the number or extent of mixed-use features, including combinations of different land uses, integrated site design, strong pedestrian and vehicle connectivity, and strong orientation of buildings to streets (sidewalks);

            ii.   Decreases use of compatible design features, including architectural styles and materials, signage and lighting, and site layout, among both internal development and with appropriate adjacent external development;

            iii.   Decreases pedestrian features, including added sidewalks, crosswalks, bus stops, pedestrian amenities, small block site layout or internal and external pedestrian connections; or

            iv.   Changes the use category is the same per Sec. 4-3.2, within any portion of the development.

         b.   A change will not be deemed substantial if it reduces impacts on surrounding properties in one or more of the following ways:

            i.   A greater than 10% decrease in the intensity of the land uses proposed on the site (e.g., number of housing units or gross floor area);

            ii.   A greater than 10% increase in proposed setbacks by locating the proposed buildings closer to internal property lines without increasing the setbacks of proposed buildings from public streets;

            iii.   A significant increase in the visually obscuring buffers along the perimeter of the site (not including toward streets) that includes preserved vegetation, added landscaping, walls and fences, or the use of topography;

            iv.   A decrease in the traffic impact due to a significant decrease or shift in the number, location or configuration of access points to or additional road improvements for the development; or

            v.   A greater than 10% increase in the amount of usable or passive open space, tree preservation, greenways, or trails provided on the site.

   H.   Approval of Amendments and Modifications.

      1.   The Planning and Development Director may allow a non-substantial change or amendment to a special use permit if the amendment or modification meets the criteria of subsection (b) above.

      2.   The Board of Adjustment may allow a substantial change or amendment to a special use permit by following the same procedure as that required for the original approval of the special use.

   I.   Cancellation of Permit. If for any reason any restriction imposed pursuant to these regulations is found to be illegal or invalid, such special use approval immediately becomes null and void and of no effect.

   J.   Violation of Permit Restrictions. Any violation of a restriction in an approved special use must be treated the same as any other violation of the UDO, subject to the same remedies and penalties as any such violation. The Board of Adjustment may, after a hearing, revoke such permit on all or part of a development if it finds that the violation was intentional, was continued for an unreasonable time, or was substantially inconsistent with the purpose and intent of the permit.

   K.   Permit Duration.

      1.   Authorization of a special use permit is void after two (2) years or such lesser time as the authorization may specify unless use of the property has begun and/or a footing inspection has been passed.

      2.   If any special use is discontinued for a period exceeding 18 months or replaced by a use otherwise permitted in the zoning district, it shall be deemed abandoned and the special use permit shall be null and void and of no effect. The owner must demonstrate that the special use has not been discontinued for a period exceeding 18 months or has not been replaced by a use otherwise permitted to maintain a valid special use permit.

   L.   Successive Applications. Successive applications for the same special use permit on a given property may be made after one year has passed since the date of the final action on the previous special use permit.

   M.   Appeal. Pursuant to Sec. 3-7.5 final decisions made by the Board of Adjustment may be appealed within 30 days to the McDowell County Superior Court who must hear the appeal on the record.

(Ord. No. O-21-06-15-5, §1, 6-15-21)

   A.   Variances general.

      1.   The Board of Adjustment may vary certain requirements of the UDO, in harmony with the general purpose of these regulations, where special conditions applicable to the property in question would make the strict enforcement of the regulations impractical or result in a hardship in making reasonable use of the property.

      2.   The Board of Adjustment may grant variances for reconstruction, rehabilitation, or restoration of structures that are individually listed or are contributing structures within an historic district overlay.

      3.   The Board of Adjustment serving as the Watershed Review Board may grant a variance pursuant to Sec. 8-2.6.B.

      4.   No variance may be granted that would have the effect of allowing a use not permitted in the subject district or a density exceeding the maximum allowed in the subject district.

      5.   No variance may be granted where explicitly prohibited by the UDO.

   B.   Authority to file. An application for a variance must be signed by the owner of the subject property.

   C.   Administrative variance. The Planning and Development Director may provide an administrative variance to an applicant requesting a minor modification to the dimensional requirements within the Unified Development Ordinance; provided the request for variance is evaluated and based on subsection F and G below, and the deviation is no greater than twenty (20) percent from the standard dimensional requirements. All other requests must be submitted to the Board of Adjustment pursuant to this section.

   D.   Filing. An application for a variance must be prepared in accordance with the common review procedures of this chapter and submitted to the Planning and Development Department at least 45 days before the Board of Adjustment meeting where the application will be heard.

   E.   Board of Adjustment - decision.

      1.   The Board of Adjustment must hold a public hearing on all variance applications. Notice of the hearing must be provided in accordance with Sec. 3-1.7.

      2.   Following the close of the public hearing, the Board of Adjustment must take action on the application in consideration of the general variance findings of fact required in subsection A above or other findings of fact specific to watershed protection standards and conditions for certain approvals for historic property. The Board may grant approval of a variance application subject to certain conditions or restrictions in accordance with subsection F below.

   F.   General variance findings of fact.

      1.   In order to grant a variance request, the Board of Adjustment must make the following findings of fact:

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

         b.   The hardship results from conditions that are peculiar to the property, such as location, size, or topography. Hardships resulting from personal circumstances, as well as hardships resulting from conditions that are common to the neighborhood or the general public, may not be the basis for granting a variance.

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

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

      2.   Any variance granted by the Board of Adjustment must be the minimum variance required for reasonable use of the land, building, or structure. The fact that property may be utilized for greater profit, however, is not considered adequate to justify the granting of a variance.

      3.   Neither the nonconforming use of lands, buildings, or structures in the same zoning district; nor the permitted use of lands, buildings, or structures in other zoning districts; nor personal circumstances may be considered as grounds for the issuance of a variance. Furthermore, mere financial hardship does not constitute grounds for the granting of a variance.

   G.   Conditions. In granting a variance, the Board of Adjustment may impose conditions deemed necessary to advance the purposes and intent of the UDO, provided that such conditions are directly related to the impacts of the proposed use and are roughly proportional to those anticipated impacts.

      1.   A variance granted subject to a condition may continue only so long as there is compliance with the condition.

      2.   Violation or invalidation of conditions required for approval, for any reason, will be deemed a violation of the UDO.

      3.   In the event that any such condition is held invalid, for any reason, such holding has the effect of invalidating the variance granted and renders the variance null and void.

      4.   If a violation or invalidation of a condition of a variance occurs, the Board of Adjustment may revoke the variance approval in the same manner in which it was approved.

   H.   Duration of approval. The Board may specify a time duration within which construction, operation, or installation must commence. Unless otherwise specified, construction, operation, or installation must start within one year of the date of issuance of a variance or it becomes void. If construction or operation is started within the specified time period, the variance approval continues in force so long as the affected building, operation, or installation remains.

   I.   Successive applications. Successive applications for the same variance permit on a given property may be made after one year has passed since the date of the final action on the previous variance permit.

   J.   Appeal. Pursuant to Sec. 3-7.5, final decisions made by the Board of Adjustment may be appealed within 30 days to the McDowell County Superior Court, who must hear the appeal on the record.

(Ord. No. O-23-07-18-4, § 10, 7-18-23)

   Where, because of topographical or other conditions peculiar to the site, strict adherence to the provisions of the subdivision regulations would cause an unnecessary hardship, the city council may authorize a variance, following notice and a quasi-judicial hearing procedures set forth in this chapter, if such variance can be made without destroying the intent of the subdivision regulations. Any variance thus authorized is required to be entered in writing in the minutes of the city council and the reasoning on which the departure was justified set forth.

(Ord. No. O-21-06-15-5, §1, 6-15-21)

   A.    Authority. The Board of Adjustment shall hear and decide appeals and requests for variances from the requirements of the flood damage prevention provisions of the UDO.

   B.   Appeal and Variance Considerations. In passing upon such applications, the Board of Adjustment shall consider all technical evaluations, all relevant factors, all standards specified in other sections of the UDO, and:

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

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

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

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

      9.   The expected heights, velocity, duration, rate of rise, and sediment transport of the flood waters, and the effects of wave action, if applicable, expected at the site;

      10.   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; and

      11.   The effect that granting the appeal or variance would have on the city's eligibility for federal flood insurance. In addition, if the request is for a functionally dependent facility, the Board of Adjustment shall consider the necessity to the facility of a waterfront location.

   C.   Written Report and Additional Conditions. A written report addressing each of the above factors shall be submitted with the application for a variance.

   D.   Granting of Variances.

      1.   Variances may be granted for:

         a.   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 the variance is the minimum necessary to preserve the historic character and design of the structure.

         b.   Functionally dependent facilities provided such facilities are protected by methods that minimize flood damages.

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

      2.   Variances shall not be granted when the variance will cause the structure to be in violation of other federal, state, or local laws, regulations, or ordinances.

      3.   Variances shall not be granted within any designated floodway or non-encroachment area if any increase in flood levels during the base flood discharge would result.

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

      5.   Variances shall only be issued prior to development permit approval.

      6.   Variances shall only be granted 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, extraordinary public expense, creation of a nuisance, fraud on or victimization of the public, or conflict with existing local laws or ordinances.

      7.   The Floodplain Administrator shall maintain the records of all appeal actions and report any variances to the Federal Emergency Management Agency and the State of North Carolina upon request.

      8.   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 or future conditions flood hazard areas provided that all of the following conditions are met:

         a.   The use serves a critical need in the community.

         b.   No feasible location exists for the use outside the special flood hazard area or future conditions flood hazard area.

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

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

         e.   The city has notified the Secretary of the North Carolina Department of Crime Control and Public Safety of its intention to grant a variance at least 30 days prior to granting the variance.

(Ord. No. O-21-06-15-5, §1, 6-15-21)

   A.   Appeals. Except as provided in G.S. 160D-1403.1, appeals of administrative decisions made by staff as allowed by G.S. 160D and the development regulations adopted by the City under the authority of G.S. Chapter 160D, shall be made to the board of adjustment.

   B.   Standing. Any person who has standing under G.S. 160D-1402(d) or the city may appeal an administrative decision to the board of adjustment. An appeal is taken by filing a notice of appeal with the planning and development department and the city clerk within thirty (30) days after the order, decision, or determination pursuant to G.S. 160D-405(d).The notice of appeal shall state the grounds for the appeal.

   C.   Time to Appeal. The owner or other party has 30 days from receipt of the written notice of the determination within which to file an appeal. Any other person with standing to appeal has 30 days from receipt from any source of actual or constructive notice of the determination within which to file an appeal.

   In the absence of evidence to the contrary, notice pursuant to G.S. 160D-403(b) given by first-class mail is deemed received on the third business day following deposit of the notice for mailing with the United States Postal Service.

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

   E.   Stays. An appeal of a notice of violation or other enforcement order stays enforcement of the action appealed from and accrual of any fines assessed during the pendency of the appeal to the board of adjustment and any subsequent appeal in accordance with G.S. 160D-1402 or during the pendency of any civil proceeding authorized by law or appeals therefrom, unless the official who made the decision certifies to the board of adjustment after the notice of appeal has been filed that because of the facts stated in an affidavit:

      1.   A stay would cause imminent peril to life or property or because the violation is transitory in nature, or

      2.   A stay would seriously interfere with enforcement of the development regulation.

   In those cases, enforcement proceedings shall not be stayed except by a restraining order, which may be granted by a court.

   If enforcement proceedings are not stayed, the appellant may file with the official a request for an expedited hearing of the appeal, and the board of adjustment shall meet to hear the appeal within 15 days after such a request is filed.

   Notwithstanding any other provision of this section, appeals of decisions granting a development approval or otherwise affirming that a proposed use of property is consistent with the development regulation does not stay the further review of an application for development approvals to use the property; in these situations the appellant or the city may request and the board of adjustment may grant a stay of a final decision of development approval applications, including building permits affected by the issue being appealed.

   F.   Alternative Dispute Resolution. The parties to an appeal that has been made under this section may agree to mediation or other forms of alternative dispute resolution.

   G.   No Estoppel. G.S. 160D-1403.2, limiting a local government's use of the defense of estoppel, applies to proceedings under this section.

(Ord. No. O-21-06-15-5, §1, 6-15-21)