A.   Findings. The North Carolina General Assembly has recognized that local government approval of development typically follows significant investment in site evaluation, planning, development costs, consultant fees, and related expenses. The General Assembly also finds that it is necessary and desirable to provide for the establishment of certain vested rights in order to ensure reasonable certainty, stability, and fairness in the development regulation process, secure the reasonable expectations of landowners, and foster cooperation between the public and private sectors in land- use planning and development regulation. The provisions of this section and G.S. 160D-108 and 160D-108.1 strike an appropriate balance between private expectations and the public interest.

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

   C.   Vested rights.

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

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

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

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

      5.   A multi-phased development pursuant to subsection (f) of G.S. 160D-108 and the UDO section.

      6.   A vested right established by the terms of a development agreement authorized by Article 10 of G.S. Chapter 160D.

      7.   The establishment of a vested right under any subdivision of subsection does not preclude vesting under one or more other subdivisions of this subsection or vesting by application of common law principles. A vested right, once established as provided in this section, G.S. 160D-108, or common law, precludes any action by a local government that would change, alter, impair, prevent, diminish, or otherwise delay the development or use of the property allowed by the applicable land development regulation or regulations, except where a change in State or federal law mandating local government enforcement occurs after the development application is submitted that has a fundamental and retroactive effect on the development or use.

(Ord. No. O-21-06-15-5, §1, 6-15-21)

   A.   Upon issuance of a developmental permit, the statutory vesting granted by subsection Sec. 9-1.1 of this section or subsection (c) of G.S. 160D-108 for a development project is effective upon filing of the application in accordance with G.S. 143-755, for so long as the permit remains valid pursuant to law.

   B.   Unless otherwise specified by this section, G.S. 160D-108, or other statute, local development permits expire one year after issuance unless work authorized by the permit has substantially commenced.

   C.   For the purposes of this section, a permit is issued either in the ordinary course of business of the applicable governmental agency or by the applicable governmental agency as a court directive.

   D.   Except where a longer vesting period is provided by statute or land development regulation, the statutory vesting granted by this section, once established, expires for an uncompleted development project if development work is intentionally and voluntarily discontinued for a period of not less than 24 consecutive months, and the statutory vesting period granted by this section for a nonconforming use of property expires if the use is intentionally and voluntarily discontinued for a period of not less than 24 consecutive months.

   E.   The 24-month discontinuance period is automatically suspended during the pendency of any board of adjustment proceeding or civil action in a State or federal trial or appellate court regarding the validity of a development permit, the use of the property, or the existence of the statutory vesting period granted by this section. The 24-month discontinuance period is also suspended during the pendency of any litigation involving the development project or property that is the subject of the vesting.

(Ord. No. O-21-06-15-5, §1, 6-15-21)

   Subject to Sec. 9-3.1 above, and subsection (d) of G.S. 160D-108, where multiple local development permits are required to complete a development project, the development permit applicant may choose the version of each of the local land development regulations applicable to the project upon submittal of the application for the initial development permit. This provision is applicable only for those subsequent development permit applications filed within 18 months of the date following the approval of an initial permit. For purposes of the vesting protections of this subsection, a floodplain management or watershed management, or a sign permit is not an initial development permit.

(Ord. No. O-21-06-15-5, §1, 6-15-21)

   A multi-phased development is vested for the entire development with the land development regulations then in place at the time a site plan approval is granted for the initial phase of the multi-phased development. A right which has been vested as provided for in this subsection or subsection (f) of G.S. 160D-108 remains vested for a period of 7 years from the time a site plan approval is granted for the initial phase of the multi-phased development.

(Ord. No. O-21-06-15-5, §1, 6-15-21)

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

(Ord. No. O-21-06-15-5, §1, 6-15-21)

   A person claiming a statutory or common law vested rights may submit information to substantiate that claim to the subdivision administrator or planning and development director who shall make an initial determination as to the existence of the vested right. The decision of the administrator may be appealed under G.S. 160D-405. On appeal, the existence of a vested right shall be reviewed de nova from the beginning. In lieu of seeking such a determination or pursuing an appeal to the board of adjustment in accordance with G.S. 160D-405, a person claiming a vested right may bring an original civil action as provided by G.S. 160D-1403.1.

(Ord. No. O-21-06-15-5, §1, 6-15-21)

   The vested rights granted by this section run with the land except for the use of land for outdoor advertising governed by G.S. 136-131.1 and 136-131.2 in which case the rights granted by this section and section (i) of G.S. 160D-108 run with the owner of a permit issued by the North Carolina Department of Transportation. Nothing in this section precludes judicial determination, based on common law principles or other statutory provisions, that a vested right exists in a particular case or that a compensable taking has occurred. Except as expressly provided in this section, nothing in this section shall be construed to alter the existing common law.

(Ord. No. O-21-06-15-5, §1, 6-15-21)

   A vested right is established with respect to any property upon the valid approval, or conditional approval, of a site-specific vesting plan as provided in this section or G.S. 160D-108.1. Such a vested right confers upon the landowner the right to undertake and complete the development and use of the property under the terms and conditions of the site- specific vesting plan, including any amendments thereto.

(Ord. No. O-21-06-15-5, §1, 6-15-21)

   A.   A site-specific vesting plan consists of a plan submitted to a local government in which the applicant requests vesting pursuant to this section or G.S. 160D-108.1, describing with reasonable certainty on the plan the type and intensity of use for a specific parcel or parcels of property. The plan may be in the form of, but not be limited to, any of the following plans or approvals:

      1.   Planned unit development plan,

      2.   Subdivision plat,

      3.   Preliminary or general development plan,

      4.   Special use permit,

      5.   Any other land use approval designation as may be utilized by the city.

   B.   The plan shall include the following information:

      1.   Approximate boundaries of the site;

      2.   Significant topographical and other natural features affecting development of the site;

      3.   Approximate location on the site of the proposed buildings, structures, and other improvements;

      4.   Approximate dimensions, including height, of the proposed buildings and other structures; and

      5.   Approximate location of all existing and proposed infrastructure on the site, including water, sewer, roads, and pedestrian walkways.

   C.    What constitutes a site-specific vesting plan under this section that would trigger a vested right shall be finally determined by the city pursuant to a development regulation, and the document that triggers the vesting shall be so identified at the time of its approval.

   D.   A variance does not constitute a site-specific vesting plan, and approval of a site-specific vesting plan with the condition that a variance be obtained does not confer a vested right unless and until the necessary variance is obtained.

   E.   A sketch or other document that fails to describe with reasonable certainty the type and intensity of use for a specified parcel or parcels of property may not constitute a site-specific vesting plan.

(Ord. No. O-21-06-15-5, §1, 6-15-21)

   A.   If a site-specific vesting plan is based on an approval required by a local development regulation, the city shall provide whatever notice and hearing is required for that underlying approval.

   B.   A duration of the underlying approval that is less than 2 years does not affect the duration of the site- specific vesting plan established under this section or G.S. 160D-108.1.

   C.   If the site-specific vesting plan is not based on such an approval, a legislative hearing with notice as required by G.S. 160D-602 shall be held.

   D.    The city may approve a site-specific vesting plan upon any terms and conditions that may reasonably be necessary to protect the public health, safety, and welfare.

   E.   Conditional approval results in a vested right, although failure to abide by the terms and conditions of the approval will result in a forfeiture of vested rights.

   F.   The city shall not require a landowner to waive the landowner's vested rights as a condition of development approval.

   G.   A site-specific vesting plan is deemed approved upon the effective date of the city's decision approving the plan or another date determined by the governing board upon approval.

   H.   An approved site-specific vesting plan and its conditions may be amended with the approval of the owner and the City. Any substantial modification must be reviewed and approved in the same manner as the original approval.

(Ord. No. O-21-06-15-5, §1, 6-15-21)

   Following approval or conditional approval of a site-specific vesting plan, the city may make subsequent reviews and require subsequent approvals by the city to ensure compliance with the terms and conditions of the original approval, provided that these reviews and approvals are not inconsistent with the original approval. The city may, pursuant to G.S. 160D-403(f), revoke the original approval for failure to comply with applicable terms and conditions of the original approval or the applicable local development regulations.

(Ord. No. O-21-06-15-5, §1, 6-15-21)

   A.   A vested right for a site-specific vesting plan remains vested for a period of 2 years. This vesting shall not be extended by any amendments or modifications to a site-specific vesting plan unless expressly provided by the city.

   B.   Notwithstanding the provisions of subdivision (a) of this subsection above, the city may provide for rights to be vested for a period exceeding two (2) years but not exceeding 5 years where warranted in light of all relevant circumstances, including, but not limited to, the size and phasing of development, the level of investment, the need for the development, economic cycles, and market conditions or other considerations. These determinations are in the sound discretion of the city and shall be made following the process specified for the particular form of a site-specific vesting plan involved in accordance with subsection Sec. 9-1.12.

   C.   Upon issuance of a building permit, the provisions of G.S. 160D-1111 and 160D-1115 apply, except that a permit does not expire and shall not be revoked because of the running of time while a vested right under this section or G.S. 160D-108.1 is outstanding.

   D.   A right vested as provided in this section terminates at the end of the applicable vesting period with respect to buildings and uses for which no valid building permit applications have been filed.

(Ord. No. O-21-06-15-5, §1, 6-15-21)

   A.   A vested right, once established as provided in this section or G.S. 160D-108.1, precludes any zoning action by the city which would change, alter, impair, prevent, diminish, or otherwise delay the development or use of the property as set forth in an approved site-specific vesting plan, except under one or more of the following conditions:

      1.   With the written consent of the affected landowner.

      2.   Upon findings, by ordinance after notice and an evidentiary hearing, that natural or man-made hazards on or in the immediate vicinity of the property, if uncorrected, would pose a serious threat to the public health, safety, and welfare if the project were to proceed as contemplated in the site-specific vesting plan.

      3.   To the extent that the affected landowner receives compensation for all costs, expenses, and other losses incurred by the landowner, including, but not limited to, all fees paid in consideration of financing, and all architectural, planning, marketing, legal, and other consulting fees incurred after approval by the city, together with interest as provided under G.S. 160D-106. Compensation shall not include any diminution in the value of the property which is caused by the action.

      4.   Upon findings, by ordinance after notice and an evidentiary hearing, that the landowner or the landowner's representative intentionally supplied inaccurate information or made material misrepresentations that made a difference in the approval by the city of the site-specific vesting plan or the phase development plan.

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

         a.   The establishment of a vested right under this section or G.S. 160D-108.l does not preclude the application of overlay zoning or other development regulations which impose additional requirements but do not affect the allowable type or intensity of use, or ordinances or regulations which are general in nature and are applicable to all property subject to development regulation by a local government, including, but not limited to, building, fire, plumbing, electrical, and mechanical codes. Otherwise applicable new regulations become effective with respect to property which is subject to a site-specific vesting plan upon the expiration or termination of the vesting rights period provided for in this section or G.S. 160D-108.1.

         b.   Notwithstanding any provision of this section, the establishment of a vested right does not preclude, change, or impair the authority of the city to adopt and enforce development regulations governing nonconforming situations or uses.

(Ord. No. O-21-06-15-5, §1, 6-15-21)

   A.   A vested right obtained under this section or G.S. 160D-108.1 is not a personal right, but attaches to and runs with the applicable property. After approval of a site-specific vesting plan, all successors to the original landowner are entitled to exercise these rights.

   B.   Nothing in this section or G.S. 160D-108.1 precludes judicial determinations, based on common law principles or other statutory provisions, that a vested right exists in a particular case or that a compensable taking has occurred. Nothing in this section shall be construed to alter the existing common law.

(Ord. No. O-21-06-15-5, §1, 6-15-21)

   No oversight or dereliction of duty on the part of any administrator, public officer, or any other official of the planning and development department shall be deemed to legalize the violation of any provision of the UDO or any provision of any other regulatory code adopted in the UDO.

(Ord. No. O-21-06-15-5, §1, 6-15-21)

   A.   Per G.S. 160D-107, the city council may adopt temporary moratoria on any development approval required by law. The duration of any moratorium shall be reasonable in light of the specific conditions that warrant imposition of the moratorium and may not exceed the period of time necessary to correct, modify, or resolve such conditions.

   B.   Except in cases of imminent and substantial threat to public health or safety, before adopting an ordinance imposing a development moratorium with a duration of sixty (60) days or any shorter period.

   C.   The city council shall hold a public hearing and shall publish a notice of the hearing in a newspaper having general circulation in the area not less than seven (7) days before the date set for the hearing.

   D.   A development moratorium with a duration of sixty-one (61) days or longer, and any extension of a moratorium so that the total duration is sixty-one (61) days or longer, is subject to the notice and hearing requirements of G.S. 160D-601.

   E.   Absent an imminent threat to public health or safety, a development moratorium adopted pursuant to this section shall not apply to any project for which a valid building permit issued pursuant to G.S. 160D-403 is outstanding, to any project for which a special use application has been accepted under this chapter, to development set forth in a site- specific development plan approved pursuant to G.S. 160D-102 and the UDO, to development for which substantial expenditures have already been made in good faith reliance on a prior valid administrative or quasi-judicial approval, or to preliminary or final subdivision plats that have been accepted for review by the City of Marion prior to the call for public hearing to adopt the moratorium.

   F.   Any preliminary subdivision plat accepted for review by the city prior to the call for public hearing, if subsequently approved, shall be allowed to proceed to final plat approval without being subject to the moratorium.

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

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

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

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

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

   No moratorium may be subsequently renewed or extended for any additional period unless the city shall have taken all reasonable and feasible steps proposed to be taken by the city in its ordinance establishing the moratorium to address the problems or conditions leading to imposition of the moratorium and unless new facts and conditions warrant an extension.

   Any ordinance renewing or extending a development moratorium must expressly include, at the time of adoption, the findings set forth in subdivisions (1) through (4) of this section, including what new facts or conditions warrant the extension.

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

(Ord. No. O-21-06-15-5, §1, 6-15-21)

   Challenges of legislative decisions of the city, including the validity and constitutionality of development regulations adopted pursuant to G.S. Chapter 160D, and actions authorized by G.S. 160D-108(c), 160D-108(g), and 160D-405(c), may be brought pursuant to Article 26 of G.S. Chapter 1. If the city was the governmental unit making the challenged decision, the city shall be named as a party to the action.

(Ord. No. O-21-06-15-5, §1, 6-15-21)

   A.   Applicability. This section applies to appeal of quasi-judicial decisions of decision-making boards when that appeal is in the nature of certiorari as required by G.S. Chapter 160D.

   B.   Filing the Petition. An appeal in the nature of certiorari shall be initiated by filing a petition for writ of certiorari with the superior court of McDowell County. The petition shall do all of the following:

      1.   State the facts that demonstrate that the petitioner has standing to seek review.

      2.   Set forth allegations sufficient to give the court and parties notice of the grounds upon which the petition contends that an error was made.

      3.   Set forth with particularity the allegations and facts, if any, in support of allegations that, as the result of an impermissible conflict as described in G.S. 160D-109, the decision-making body was not sufficiently impartial to comply with due process principles.

      4.   Set forth the relief the petitioner seeks.

   C.   Standing. A petition may be filed under G.S.160D-1402 only by a petitioner who has standing to challenge the decision being appealed. The following persons shall have standing to file a petition under this section:

      1.   Any person possessing any of the following criteria:

         a.   An ownership interest in the property that is the subject of the decision being appealed, a leasehold interest in the property that is the subject of the decision being appealed, or an interest created by easement, restriction, or covenant in the property that is the subject of the decision being appealed.

         b.   An option or contract to purchase the property that is the subject of the decision being appealed.

         c.   An applicant before the decision-making board whose decision is being appealed.

            i.   Any other person who will suffer special damages as the result of the decision being appealed.

            ii.   An incorporated or unincorporated association to which owners or lessees of property in a designated area belong by virtue of their owning or leasing property in that area, or an association otherwise organized to protect and foster the interest of the particular neighborhood or local area, so long as at least one of the members of the association would have had standing as an individual to challenge the decision being appealed, and the association was not created in response to the particular development or issue that is the subject of the appeal.

            iii.   The town, if the governing body of the town believes its decision-making board made a decision that improperly granted a variance from or is otherwise inconsistent with the proper interpretation of a development regulation adopted by the town's governing body.

   D.   Respondent. The respondent named in the petition shall be the local government whose decision-making board made the decision that is being appealed, except that if the petition is a local government that has filed a petition pursuant to subdivision (iv) of subsection (c) above, then the respondent shall be the decision-making board. If the petitioner is not the applicant before the decision-making board whose decision is being appealed, the petitioner shall also name that applicant as a respondent. Any petitioner may name as a respondent any person with an ownership or leasehold interest in the property that is the subject of the decision being appealed who participated in the hearing, or was an applicant, before the decision-making board.

   E.   Writ of Certiorari. Upon filing the petition, the petitioner shall present the petition and a proposed writ of certiorari to the clerk of superior court of Buncombe County. The writ shall direct the respondent local government, or the respondent decision-making board, to prepare and certify to the court the record of proceedings below within a specified date. The writ shall also direct that the petitioner shall serve the petition and the writ upon each respondent named therein in the manner provided for service of a complaint under Rule 4(j) of the North Carolina Rules of Civil Procedure, except that, if the respondent is a decision-making board, the petition and writ shall be served upon the chair of that decision- making board. Rule 4(j)(5)d of the Rules of Civil Procedure shall apply in the event the chair of the decision-making board cannot be found. No summons shall be issued. The clerk shall issue the writ without notice to the respondent or respondents if the petition has been properly filed and the writ is in proper form. A copy of the executed writ shall be filed with the court. Upon the filing of a petition for writ of certiorari, a party may request a stay of the execution or enforcement of the decision of the quasi-judicial board pending superior court review. The court may grant a stay in its discretion, and on such conditions that properly provide for the security of the adverse party. A stay granted in favor of a local government shall not require a bond or other security.

   F.   Response to the Petition. The respondent may, but need not, file a response to the petition, except that, if the respondent contends for the first time that any petitioner lacks standing to bring the appeal, that contention must be set forth in a response served on all petitions at least 30 days prior to the hearing on the petition. If it is not served within that time period, the matter may be continued to allow petitioners time to respond pursuant to subsection (j) below.

   G.   Intervention. Rule 24 of the North Carolina Rules of Civil Procedure shall govern motions to intervene as a petitioner or respondent in an action initiated under this section except that the exceptions noted in G.S. 160D-1402(g) shall apply.

   H.   The Record. The record shall consist of the decision and all documents and exhibits submitted to the decision-making board whose decision is being appealed, together with the minutes of the meeting or meetings at which the decision being appealed was considered. Upon request of any party, the record shall also contain an audio or videotape of the meeting or meetings at which the decision being appealed was considered if such a recording was made. Any party may also include in the record a transcript of the proceedings, which shall be prepared at the cost of the party choosing to include it. The parties may agree that matters unnecessary to the court's decision be deleted from the record or that matters other than those specified herein be included. The record shall be bound and paginated or otherwise organized for the convenience of the parties and the court. A copy of the record shall be served by the local government respondent, or the respondent decision-making board, upon all petitioners within three (3) days after it is filed with the court.

   I.   Hearing on the Record. The court shall hear and decide all issues raised by the petition by reviewing the record submitted in accordance with G.S. 160D-1402(h) and section (h) above. The court may, in its discretion, allow the record to be supplemented with affidavits, testimony of witnesses, or documentary or other evidence if, and to the extent that, the record is not adequate to allow an appropriate determination of the following issues:

      1.   Whether the petitioner or intervenor has standing.

      2.   Whether, as a result of impermissible conflict as described in G.S. 160D-109 or locally adopted conflict rules, the decision-making board was not sufficiently impartial to comply with due process principles.

      3.   Whether the decision-making board erred for the reasons set forth in G.S. 160D-1402(j)(1)(a) and (b).

   J.   Scope of Review.

      1.   When reviewing the decision under the provisions of G.S. 160D-1402, the court shall ensure that the rights of petitioners have not been prejudiced because the decision-making board's findings, inferences, conclusions, or decisions were:

         a.   In violation of constitutional provisions, including those protecting procedural due process rights.

         b.   In excess of statutory authority conferred upon the local government or the authority conferred upon the decision-making board by ordinance.

         c.   Inconsistent with applicable procedures specified by statute or ordinance.

         d.   Affected by other error of law.

         e.   Unsupported by competent, material, and substantial evidence in view of the entire record.

         f.   Arbitrary or capricious.

            i.   When the issue before the court is whether the decision-making board erred in interpreting an ordinance, the court shall review that issue de novo. The court shall consider the interpretation of the decision-making board, but is not bound by that interpretation, and may freely substitute its judgment as appropriate.

            ii.   The term "competent evidence," as used in this section, shall not preclude reliance by the decision-making board on evidence that would not be admissible under the rules of evidence as applied in the trial division of the North Carolina General Court of justice if (i) the evidence was admitted without objection or (ii) the evidence appears to be sufficiently trustworthy and was admitted under such circumstances that it was reasonable for the decision-making board to rely upon it. The term "competent evidence," as used in this section, shall not be deemed to include the opinion testimony of law witnesses as to any of the following:

               a)   The use of the property in a particular way affects the value of other property.

               b)   The increase in vehicular traffic resulting from a proposed development poses a danger to the public safety.

               c)   Matters about which only expert testimony would generally be admissible under the rules of evidence.

   K.   Decision of the Court. Following its review of the decision-making board in accordance with G.S. 160D- 1402(j), the court may affirm the decision, reverse the decision and remand the case with appropriate instructions, or remand the case for further proceedings. If the court does not affirm the decision below in its entirety, then the court shall determine what relief should be granted to the petitioners:

      1.   If the court concludes that the error committed by the decision-making board is procedural only, the court may remand the case for further proceedings to correct the procedural error.

      2.   If the court concludes that the decision-making board has erred by failing to make findings of fact such that the court cannot properly perform its function, then the court may remand the case with appropriate instructions so long as the record contains substantial competent evidence that could support the decision below with appropriate findings of fact. However, findings of fact are not necessary when the record sufficiently reveals the basis for the decision below or when the material facts are undisputed and the case presents only an issue of law.

      3.   If the court concludes that the decision by the decision-making board is not supported by competent, material, and substantial evidence in the record or is based upon error at law, then the court may remand the case with an order that directs the decision-making board to take whatever action should have been taken had the error not been committed or to take such action as is necessary to correct the error. Specifically:

         a.   If the court concludes that a permit was wrongfully denied because the denial was not based on competent, material, and substantial evidence or was otherwise based on an error of law, the court may remand with instructions that the permit be issued, subject to reasonable and appropriate conditions.

         b.   If the court concludes that a permit was wrongfully issued because the issuance was not based upon competent, material, and substantial evidence or was otherwise based on an error of law, the court may remand with instructions that the permit be revoked.

   L.   Effect of Appeal on Ancillary Injunctive Relief.

      1.   If a development approval is appealed, the applicant shall have the right to commence work while the appeal is pending. However, if the development approval is reversed by a final decision of any court of competent jurisdiction, the applicant shall not be deemed to have gained any vested rights on the basis of actions taken prior to or during the pendency of the appeal and must proceed as if no development approval has been granted.

      2.   Upon motion of a party to a proceeding under G.S. 160D-1402, and under appropriate circumstances, the court may issue an injunctive order requiring any other party to that proceeding to take certain action or refrain from taking action that is consistent with the court's decision on the merits of the appeal.

   M.   Joinder. A declaratory judgment brought under G.S.160D-1401 or other civil action relating to the decision at issue may be joined with a petition for writ of certiorari and decided in the same proceeding.

   Final decisions may be appealed to the McDowell County Superior Court within 30 days of notice or the effective date of the decision pursuant to N.C.G.S. 160A-388 and 160A-393.

(Ord. No. O-21-06-15-5, §1, 6-15-21)

   A.   Zoning Map Adoption or Amendments. A cause of action as to the validity of any regulation adopting or amending a zoning map adopted under the UDO or other applicable law or a development agreement adopted under Sec. 3-2.23 of the UDO accrues upon adoption of the ordinance and shall be brought within 60 days as provided in G.S. 1- 54.1.

   B.   Text Adoption or Amendment. Except as otherwise provided in subsection (a) of this section, an action challenging the validity of a development regulation adopted under the UDO or other applicable law shall be brought within one (1) year of the accrual of such action. Such an action accrues when the party bringing such action first has standing to challenge the regulation. A challenge to a regulation on the basis of an alleged defect in the adoption process shall be brought within three years after the adoption of such regulation.

   C.   Enforcement Defense. Nothing in this section or in G.S. 1-54(10) or G.S. 1-54.1 bars a party in an action involving the enforcement of a development regulation or in an action under G.S. 160D-1403.1 from raising as a claim or defense in the proceedings the enforceability or the invalidity of the UDO. Nothing in this section or in G.S. 1-54(10) or G.S. 1-54.1 bars a party who files a timely appeal from an order, requirement, decision, or determination made by an administrative official contending that the party is in violation of a development regulation from raising in the judicial appeal the invalidity of the UDO as a defense to the order, requirement, decision, or determination. A party in an enforcement action or appeal may not assert the invalidity of the UDO on the basis of an alleged defect in the adoption process unless the defense is formally raised within three years of the adoption of the challenged regulation.

   D.   Termination of Grandfathered Status. When a use constituting a violation of a zoning ordinance is in existence prior to adoption of the UDO creating the violation, and that use is grandfathered and subsequently terminated for any reason, a local government shall bring an enforcement action within 10 years of the date of the termination of the grandfathered status, unless the violation poses an imminent hazard to health or public safety.

   E.   Quasi-Judicial Decisions. Unless specifically provided otherwise, a petition for review of a quasi-judicial decision shall be filed with the clerk of superior court by the later of 30 days after the decision is effective or after a written copy thereof is given in accordance with G.S. 160D-406(j). When first-class mail is used to deliver notice, three days shall be added to the time to file the petition.

   F.   Others. Except as provided by this section, the statutes of limitations are as provided in Subchapter II of Chapter 1 of the General Statutes.

(Ord. No. O-21-06-15-5, §1, 6-15-21)