As provided in Article 3, the Planning Board, Town Council, and Board of Adjustment (as applicable) shall hear and decide all applications, appeals, and variance requests, as expeditiously as possible, consistent with the need to follow regularly established agenda procedures, provide notice in accordance with Section 4.3, and obtain the necessary information to make sound decisions.

(Ord. of 10-9-2018)

4.2.1. Before making a decision on an application for an amendment, appeal, variance, or special use permit, the Town Council or Board of Adjustment (as appropriate) shall hold a hearing on the application the submittal of a completed application (provided that the public advertising requirements are met). The required application fee and all supporting materials must be received by the UDO Administrator before an application is considered complete and a hearing scheduled.

4.2.2. Subject to subsection 4.2.3, the hearing shall be open to the public and all persons interested in the outcome of the application shall be given an opportunity to present evidence and arguments.

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

4.2.4. The decision-making board may continue the hearing until a subsequent meeting and may keep the hearing open to take additional information up to the point a final decision is made. No further notice of a continued hearing need be published between hearing dates.

(Ord. of 10-9-2018; Amend. of 1-10-2023(3))

4.3.1. Notice and Public Hearings—Zoning Text Amendment.

Before adopting, amending, or repealing any ordinance or development regulation, the Town Council shall hold a legislative hearing. A notice of the hearing shall be given once a week for two successive calendar weeks in a newspaper having general circulation in the area. The notice shall be published the first time not less than 10 days nor more than 25 days before the date scheduled for the hearing. In computing such period, the day of publication is not to be included but the day of the hearing shall be included.

4.3.1.1. Notice to Military Bases. If the adoption or modification would result in changes to the permitted uses of land located five miles or less from the perimeter boundary of a military base, the local government shall provide written notice of the proposed changes by certified mail, return receipt requested, to the commander of the military base not less than 10 days nor more than 25 days before the date fixed for the hearing. If the commander of the military base provides comments or analysis regarding the compatibility of the proposed development regulation or amendment with military operations at the base, the governing board of the local government shall take the comments and analysis into consideration before making a final determination on the ordinance.

4.3.1.2. A development regulation adopted pursuant to this Section shall be adopted by ordinance.

4.3.1.3. Adoption of a legislative decision for development regulation may be done on first reading by simple majority.

4.3.2. Notice and Public Hearings—Zoning Map Amendment.

4.3.2.1. In any case where the Town Council will consider a change in the zoning classification of a parcel of land, notice of the proposed petition or application shall be mailed by the UDO Administrator via first class mail to the owner of that parcel of land and all abutting property owners as shown on the Brunswick County tax listing at the last addresses listed for such property owners on the Brunswick County tax abstracts. The party applying for the change in zoning classification shall submit, with the request for rezoning, a list of the names of the owners, their addresses, and the tax parcel numbers of the property involved in the change and all abutting properties any portion of which is within two hundred (200) feet of the property to be considered for rezoning, as shown on the Brunswick County tax listing. The application shall be considered incomplete without such material. The list of property owners provided by the applicant shall be verified by the UDO Administrator for accuracy. For the purpose of this section, properties are "abutting" even if separated by a street, railroad, or other transportation corridor. Optional Notice for Large-Scale Zoning Map Amendments is permissible pursuant to G.S. 160D-602(b).

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

4.3.2.3. Notice to Military Bases. If the adoption or modification would result in changes to the zoning map located five miles or less from the perimeter boundary of a military base, the local government shall provide written notice of the proposed changes by certified mail, return receipt requested, to the commander of the military base not less than 10 days nor more than 25 days before the date fixed for the hearing. If the commander of the military base provides comments or analysis regarding the compatibility of the proposed development regulation or amendment with military operations at the base, the governing board of the local government shall take the comments and analysis into consideration before making a final determination on the ordinance.

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

4.3.2.5. For extension of ETJ zoning district designations, a single mailed notice for ETJ and zoning-map amendment pursuant to statutory procedures in G.S. 160D-202 may be used. The notice shall be mailed at least 30 days prior to the date of the hearing. The person or persons mailing the notices shall certify to the Town Council that the notices were sent by first-class mail, and the certificate shall be deemed conclusive in the absence of fraud.

4.3.2.6. Down zoning shall be done in accordance with 160D-601(d).

4.3.3. Notice and Public Hearings—Appeals, Variances, and Special Use Permits.

4.3.3.1. Notice of hearings conducted pursuant to Sections 4.9 and 4.10 shall be mailed to the person or entity whose appeal, application, or request is the subject of the hearing; to the owner of the property that is the subject of the hearing if the owner did not initiate the hearing; and to the owners of all parcels of land abutting the parcel of land that is the subject of the hearing. In the absence of evidence to the contrary, the Town may rely on the county tax listing to determine owners of property entitled to mailed notice. The notice must be deposited in the mail at least ten days, but not more than 25 days, prior to the date of the hearing. Within that same time period, the Town shall also prominently post a notice of the hearing on the site that is the subject of the hearing or on an adjacent street or highway right-of-way.

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

4.3.4. Notice and Public Hearings—Comprehensive Plan.

Comprehensive Land Use Plans shall be adopted by the Town Council with the advice and consultation of the Planning Board. Adoption and amendment of a comprehensive plan is a legislative decision and shall follow the process mandated for zoning text amendments set by G.S. 160D-601. Plans adopted shall be advisory in nature without independent regulatory effect. Adopted comprehensive plans do not expand, diminish, or alter the scope of authority for development regulations adopted under this UDO. Comprehensive plans shall be considered by the Planning Board and Town Council when considering proposed amendments to zoning regulations as required by G.S. 160D-604 and G.S. 160D-605.

(Ord. of 10-9-2018; Amend. of 2-9-2021(3); Amend. of 6-8-2021(4); Amend. of 6-8-2021(6); Amend. of 1-10-2023(3))

Editor's note— Amend. of 6-8-2021(4) set out provisions adding subsection 4.3.3. Inasmuch as there were already provisions so designated, said amendment has been codified herein as subsection 4.3.4 at the discretion of the editor.

4.4.1. All local development approvals, not otherwise specified, expire one year after issuance unless work has substantially commenced. Expiration of a local development approval shall not affect the duration of a vested right established under Section 4.7 or vested rights established under common law. Zoning and special use permits for which vested rights as specified in Section 4.7 have not been secured shall expire automatically if, within two years after the issuance of such permits:

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

4.4.1.2. Less than ten percent of the total cost of all construction, erection, alteration, excavation, demolition, or similar work on any development authorized by such permits has been completed on the site. With respect to phased development, this requirement shall apply only to the first phase. If construction of a subsequent stage has not begun within three years (i.e., Phase 2 following completion of Phase 1), the permits for all subsequent phases shall expire. For example, if a development has five phases, the permits for Phases 2 through 5 would expire.

4.4.2. If after some physical alteration to land or structures begins and such work is discontinued for a period of one (1) year, then the zoning or special use permit authorizing such work shall immediately expire. However, expiration of the permit shall not affect the provisions of Section 4.5. Unless a different period is specified in the Unified Development Ordinance or other specific applicable law, or a different period is provided by a quasi-judicial development approval, a development agreement, a development approval issued shall expire one year after the date of issuance if the work authorized by the development approval has not been substantially commenced. Other Unified Development Ordinance regulations may provide for development approvals of shorter duration for temporary land uses, special events, temporary signs, and similar development.

4.4.3. The permit-issuing authority may extend for a period up to one (1) year the date when a zoning or special use permit would otherwise expire pursuant to subsections 4.4.1 or 4.4.2 if it concludes that (i) the permit has not yet expired, (ii) the permit recipient has proceeded with due diligence and in good faith, and (iii) conditions have not changed so substantially as to warrant a new application. Successive extensions may be granted for periods up to six (6) months (for a total period not to exceed three (3) years) upon the same findings. All such extensions may be granted without resort to the formal processes and fees required for a new permit. The UDO Administrator will notify the Town Council of all extensions. Unless provided otherwise by this ordinance or other specific applicable law or a longer period is provided by local ordinance, if after commencement the work or activity is discontinued for a period of 12 months after commencement, the development approval shall immediately expire. The time periods set out in this section shall be tolled during the pendency of any appeal. No work or activity authorized by any development approval that has expired shall thereafter be performed until a new development approval has been secured. Nothing in this subsection shall be deemed to limit any vested rights secured under G.S. 160D-108.

4.4.4. For purposes of this section, the special use permit within the jurisdiction of the Town Council is issued when such board votes to approve the application and issue the permit. A zoning permit within the jurisdiction of the UDO Administrator is issued when the earlier of the following takes place:

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

4.4.4.2. The UDO Administrator notifies the permit applicant that the application has been approved and that all that remains before a fully executed permit can be delivered is for the applicant to take certain specified actions, such as having the permit executed by the property owner so it can be recorded if required (see Section 4.5.2).

4.4.5. Notwithstanding any of the provisions of Article 9 (Nonconforming Situations), this section shall be applicable to permits issued prior to the date this section becomes effective.

4.4.6. Special use permits for which vested rights have been secured in accordance with Section 4.7 shall expire at the end of the two-year vesting period.

4.4.7. Each site-specific vesting plan shall include the information required by the Town of Oak Island for the underlying type of development plan.

4.4.8. A multiphase development shall be vested for the entire development with the zoning regulations, subdivision regulations, and unified development ordinances in place at the time a site plan approval is granted for the initial phase of the multiphase development. This right shall remain vested for a period of seven years from the time a site plan approval is granted for the initial phase of the multiphase development.

4.4.9. New and amended zoning regulations that would be applicable to certain property but for the establishment of a vested right shall become effective upon the expiration or termination of the vested rights period provided for in this ordinance.

(Ord. of 10-9-2018; Amend. of 6-8-2021(3); Amend. of 6-8-2021(7); Amend. of 1-10-2023(3))

4.5.1. Zoning, special use permits, and floodplain development permits authorize the permittee to make use of land and structures in a particular way. Unless provided otherwise by law, all rights, privileges, benefits, burdens, and obligations created by development approvals made pursuant G.S. 160D-104 attach to and run with the land. Such permits are transferable. However, so long as the conforming uses, land, or structures or any portion thereof covered under a permit continues to be used for the purposes for which the permit was granted, then:

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

4.5.1.2. The terms and requirements of the permit apply to and restrict the use of land or structures covered under the permit, not only with respect to all persons having any interest in the property at the time the permit was obtained, but also with respect to persons who subsequently obtain any interest in all or part of the covered property and wish to use it for or in connection with purposes other than those for which the permit was originally issued, so long as the persons who subsequently obtain an interest in the property had actual or record notice (as provided in subsection 4.5.2) of the existence of the permit at the time they acquired their interest.

4.5.1.3. After a development approval has been issued, no deviations from the terms of the application or the development approval shall be made until written approval of proposed changes or deviations has been obtained. Minor modifications to development approvals are administratively approved and must meet the minor modification criteria in Section 4.7.15.1 to 4.7.15.14. The same development review and approval process required for issuance of the development approval is required in the review and approval of any major modification of that approval.

4.5.1.4. Nothing in this ordinance shall prohibit the revocation of the original approval or other remedies for failure to comply with applicable terms and conditions of the approval or the unified development ordinance. The development remains subject to subsequent review and approvals to ensure compliance with the terms and conditions of the original approval as provided for in the original approval or by applicable regulations.

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

(Ord. of 10-9-2018; Amend. of 6-8-2021(3); Amend. of 6-8-2021(7); Amend. of 1-10-2023(3))

4.6.1. Procedure.

The Town Council may amend, supplement, or change the text of this Ordinance and zoning map following review and recommendation of the Planning Board according to the procedures established in this section. As used in this section, comprehensive plan, includes a unified development ordinance and any other officially adopted plan that is applicable. Notwithstanding the authority to assign duties of the Planning Board to the Town Council, the review and comment required by this section shall not be assigned to the Town Council and must be performed by the Planning Board in accordance with G.S. 160D-604.

4.6.2. Action by Applicant.

The following action shall be taken by the applicant:

4.6.2.1. Proposed changes or amendments may be initiated by the Town Council, Planning Board, or by one or more interested parties.

4.6.2.2. An application for any text change or amendment shall contain the proposed text amendment and the name(s) and address(es) of the applicant(s).

4.6.2.3. An application for any map change or amendment shall contain a description and statement of the present and proposed zoning regulation or district boundary to be applied, the name(s) and address(es) of the applicant(s), the owner of the parcel of land involved in the change if different from the applicant, and all adjacent property owners as shown on the Brunswick County tax listing.

4.6.2.4. One hard copy and one electronic copy of such application shall be filed with the UDO Administrator not later than 30 calendar days prior to the Planning Board meeting at which the application is to be considered.

4.6.3. Action by the Planning Board.

Prior to consideration by the Town Council of the proposed zoning amendment, the Planning Board shall advise and comment on whether the proposed text amendment or map amendment is consistent with any comprehensive plan. The Planning Board shall provide a written recommendation to the Town Council that addresses plan consistency and other matters as deemed appropriate by the Planning Board, but a comment by the Planning Board that a proposed amendment is inconsistent with the comprehensive plan shall not preclude consideration or approval of the proposed amendment by the Town Council. In its deliberations, the Planning Board shall provide the public an opportunity to comment on consistency with the comprehensive plan pursuant to G.S. 160D-604. The Planning Board may consider any plan adopted according to G.S. 160D-501 when making a comment on plan consistency.

4.6.4. Action by the Town Council.

Action to consider a rezoning petition, including the scheduling of a public hearing, will be at the discretion of the Town Council.

4.6.4.1. Before an item is placed on the agenda to schedule a public hearing, the Planning Board's recommendation on each proposed zoning amendment must be received by the Town Council. If no recommendation is received from the Planning Board within 30 days from the date when submitted to the Planning Board, the petitioner may take the proposal to the Town Council without a recommendation from the Planning Board. However, the Planning Board may request the Town Council to delay final action on the amendment until such time as the Planning Board can present its recommendations.

4.6.4.2. After receiving a recommendation from the Planning Board on a proposed amendment, the Town Council may proceed to vote on the proposed ordinance, refer it to a committee for further study, or take any other action consistent with its usual rules of procedure.

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

4.6.4.4. No member of the Town Council shall vote on any zoning map amendment or text amendment where the outcome of the matter being considered is reasonably likely to have a direct, substantial and readily identifiable financial impact on the member or his or her close family, business, and/or associational relationships.

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

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

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

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

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

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

4.6.5. Citizen Comments.

Zoning ordinances may from time to time be amended, supplemented, changed, modified, or repealed. If any resident or property owner in the town submits a written statement regarding a proposed amendment, modification, or repeal to a zoning ordinance to the Clerk to the Board at least two business days prior to the proposed vote on such change, the Clerk to the Board shall deliver such written statement to the Town Council. If the proposed change is the subject of a quasi-judicial proceeding under G.S. 160D-1-9(d), G.S. 160D-302, G.S. 160D-403(b), G.S. 160D-405, G.S. 160D-406, G.S. 160D-702, G.S. 160D-705, and G.S. 160D-1405, the Clerk shall provide only the names and addresses of the individuals providing written comment, and the provision of such names and addresses to all members of the Board shall not disqualify any member of the Board from voting.

4.6.6. Withdrawal of Application.

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

(Ord. of 10-9-2018; Amend. of 2-9-2021(3); Amend. of 6-8-2021(6))

4.7.1. A vested right, in accordance with G.S. 160D-102, G.S. 160D-108, and G.S. 160D-108.1, may be established upon the approval or special approval of a site-specific development plan by the Town Council in accordance with the provisions outlined in this section. Approval by the Town Council of a site-specific vesting plan shall follow the procedural requirements for the issuance of a special use permit as outlined in Section 4.9. A right which has been vested as provided for in this section shall, as a general rule, remain valid for two (2) years and shall attach to and run with the land. A vested right shall expire at the end of two (2) years if no building permit applications have been filed with the Town to construct the use or uses proposed in the approved site-specific development plan.

A building permit expires six months after issuance unless work under the permit has commenced. Building permits also expire if work is discontinued for a period of 12 months after work has commenced.

The two (2) years may be extended up to five (5) years where warranted in light of all relevant circumstances, including, but not limited to, the size and phasing of development, the level of investment, the need for the development, economic cycles, and market conditions. These determinations shall be in the sound discretion of the Town.

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

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

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

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

4.7.2.4. Site-Specific Plan. A plan which has been submitted to the Town describing with reasonable certainty the type and intensity of use for a specific parcel or parcels of property. Site-specific plans include but are not limited to: planned unit development plan, a subdivision plat, a preliminary plat, minor subdivision plat, master plan, a site plan, a preliminary or general development plan, and a Special Use Permit. A variance shall not constitute a site-specific development plan. Neither a sketch plan nor any other document which fails to describe with reasonable certainty the type and intensity of use for a specified parcel/parcels or property may constitute a site-specific development plan.

4.7.2.5. Phased Development Vesting Plan. A phased development plan means a plan that describes details of the type and intensity of use for a specific parcel or parcels of property, including at a minimum, the boundaries of the project, a subdivision plan, and subsequent phases of development. All phased development vesting plans shall be approved by the Town Council.

4.7.2.6. Multiphase Development Plan. Means a development containing 25 acres or more that (i) is submitted for site plan or subdivision plat approval for construction to occur in more than one phase and (ii) is subject to a master development plan with committed elements, including a requirement to offer land for public use as a condition of its master development plan approval.

4.7.2.7. Substantially Commenced. Substantial commencement of work shall be determined by the UDO Administrator or his/her designee based on any of the following:

4.7.2.7.1. The development has received and maintained a valid development permit and conducted grading activity on a continuous basis; or

4.7.2.7.2. The development has installed substantial on-site infrastructure; or

4.7.2.7.3. The development has received and maintained a valid building permit for the construction and approval of a building foundation.

4.7.2.8. Minor subdivision plat—As defined under Appendix A - Definitions.

4.7.2.9. Major subdivision plat—As defined under Appendix A - Definitions.

4.7.2.10. Site plan—As defined under Appendix A - Definitions.

4.7.2.11. Planned Unit Development—As defined under Appendix A - Definitions.

4.7.2.12. Master Plan—As defined under Appendix A - Definitions.

4.7.2.13. Special Use Permit—As defined under Appendix A - Definitions.

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

4.7.4. A vested right shall confer upon the landowner the right to undertake and complete the development and use of the property as delineated in the approved site-specific development plan. The Town Council may approve a site-specific phasing plan upon such terms and conditions as may be determined necessary to protect the public health, safety, and welfare. Failure to comply with the approved terms and conditions shall result in a forfeiture of vested rights. An approved site-specific vesting plan and its conditions may be amended with the approval of the owner and the Town Council. Any substantial modification must be reviewed and approved in the same manner as the original approval. Minor modifications may be approved by staff if the minor modification criteria in Section 4.7.15.1 to 4.7.15.14 are met.

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

4.7.5.1. With the written consent of the affected landowner;

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

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

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

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

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

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

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

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

4.7.10. The UDO Administrator and his or her designee shall provide the notices and hearing required for a site-specific or phased development vesting plans. A local government may approve a site-specific vesting plan upon such terms and conditions as may reasonably be necessary to protect the public health, safety, and welfare. Such conditional approval shall result in a vested right, although failure to abide by its terms and conditions will result in a forfeiture of vested rights.

4.7.11. A site-specific vesting plan shall be deemed approved upon the effective date of the Town Council's and UDO Administrator, when applicable, decision approving the plan or such other date as determined by the Town Council upon approval.

4.7.12. Any vested rights for a site-specific vesting plan are subject to the exceptions specified at G.S. 160D-108.1.

4.7.13. Determination of Application Completeness and Completeness Review

4.7.13.1. Applicants shall submit applications to the UDO Administrator or his/her designee. Until an application is determined to be complete, an application has not been submitted.

4.7.13.2. On receiving application, the UDO Administrator or his/her designee shall determine whether the application is complete or incomplete. A complete application is one that:

4.7.13.2.1. Contains all information and materials required by the UDO Administrator or his/her designee and in sufficient detail and readability to evaluate the application for compliance with applicable review standards;

4.7.13.2.2. It is recognized that each application is unique, and therefore more or less information may be required according to the needs of the particular case;

4.7.13.2.3. Is accompanied by the fee established for the particular type of application.

4.7.13.3. An application shall be considered as "filed" or "submitted" on the date it is received if it is found to be complete and sufficient for processing by the UDO Administrator or his/her designee.

4.7.13.4. Reserved.

4.7.13.5. An applicant may revise a development application for any of the following reasons:

4.7.13.5.1. To address deficiencies provided as part of the staff review;

4.7.13.5.2. To make limited changes that directly respond to specific requests or suggestions made by a reviewing board or staff in response to a reviewing board, as long as they constitute only minor additions, deletions, or corrections and do not include substantive changes to the development proposed in the application.

4.7.13.5.3. Any other revisions to a development application may be submitted at any time during the review procedure, but the original application shall be withdrawn and the revised application shall be submitted and reviewed as a new application. The revised application submittal may be subject to additional application fees to defray the additional costs of processing the revised application.

4.7.13.6. After an application has been accepted for review, the applicant may withdraw the application at any time by submitting a request of withdrawal in writing to the UDO Administrator or his/her designee.

4.7.13.7. On determining that the application is incomplete, the UDO Administrator or his/her designee shall, as appropriate, provide the applicant written notice of the submittal deficiencies. The applicant may correct the deficiencies and resubmit the application for a completeness review.

4.7.13.8. On determining that the application is complete, the UDO Administrator or his/her designee shall accept the application as submitted in accordance with the procedures and standards of this ordinance in effect at the time of the submittal and provide the applicant written notice of application submittal acceptance.

4.7.14. A site specific development plan shall include:

4.7.14.1. The approximate boundaries of the site;

4.7.14.2. Significant topographical and other natural features effecting development of the site;

4.7.14.3. The approximate location on the site of the proposed buildings, structures and other improvements;

4.7.14.4. The approximate dimensions, including height, of the proposed buildings and other structures; and

4.7.14.5. The approximate location of all existing and proposed infrastructure on the site, including water, sewer, roads and pedestrian walkways.

4.7.15. All application types that grant vested rights, including but not limited to preliminary plats, special use permits, and site-specific development plans where a modification to the approved plans are requested; the criteria in Section 4.7.15.1 to 4.7.15.19 is to be used to determine if the permit modification is major or a minor modification.

After a permit granting vesting is approved and has been issued; no deviations from the terms of the application or the development approval shall be made until written approval of proposed changes or deviations has been obtained. Such deviations may be approved administratively if it is a Minor Modification. The same development review and approval process required for approval of the application is required if the modification is a major modification of that approval. An application for a minor modification does not preclude an applicant from seeking a variance from the Board of Adjustment.

The minor modifications authorized under G.S. 160D-705(c) are intended to provide relief based upon a unique physical attribute of the property itself or some other factor unique to the property which was not known at the time of initial approval. The applicant will need to provide evidence of why relief is needed. Amendment of application approval may only be reviewed and considered in accordance with the procedures and standards established for its original approval, unless it is determined to be a minor modification.

Minor modifications to approved vested applications may be approved by the UDO Administrator or his/her designee per authorization under G.S. 160D-705(c), provided no variance is required. The holder shall bear the burden of proof to secure the modification(s). When an amendment is considered in any case, the unaffected components of the plan shall not be considered for re-approval. The UDO Administrator shall use the following criteria to determine whether a proposed action is a minor modification or a substantial change.

Items not codified as a minor modification are automatically a major modification. Such minor modifications shall be limited to the following:

4.7.15.1. Does not involve a change in uses permitted or increase the density of overall development permitted.

4.7.15.2. Reduction in impervious coverage.

4.7.15.3. Increase in active or passive open space.

4.7.15.4. Reconfiguration of a parking design that does not place a project below the minimum parking space requirements.

4.7.15.5. Changing landscaping arrangements not less than the required amount in Article 10.

4.7.15.6. Be limited to a minor change such as, without limitation, a minor adjustment to road configuration or internal circulation, a minor adjustment to building location in compliance with Section 4.7.15.10, or a minor adjustment to utility alignment.

4.7.15.7. Minor site modifications due to necessary engineering requirements.

4.7.15.8. Change of location of elements included on the site plan that generally maintains relative alignment and orientation to the approved site plan.

4.7.15.9. Multiple, sequential minor modifications trigger a major modification amendment. Projects are limited to one minor modification per year.

4.7.15.10. A deviation of up to 10% or 24 inches, whichever is less, from the approved setback; not to reduce the minimum setback limits as permitted in the UDO.

4.7.15.11. Increase in width, depth, and square feet, not to exceed maximum limits as permitted within the UDO, of one or more buildings or site features.

4.7.15.12. Does not increase the impacts generated by the development on traffic, stormwater runoff, or similar impacts beyond what was projected for the original development approval.

4.7.15.13. Increase in height, not to exceed limits as permitted within the Unified Development Ordinance or not to exceed the allowed height as specified as part of a conditional zoning or special use permit approval, of one or more buildings.

4.7.15.14. Other similar insignificant changes and any other modification in accordance with the limitation and procedures prescribe in this Ordinance, which are still complaint with the UDO standards.

A substantial material change once it has been issued must first be submitted, reviewed, and approved in accordance with Section 4.9.3, including payment of a fee in accordance with the fee schedule approved by the Town Council. The UDO Administrator or his/her designee shall determine if the applicant's proposed modification is minor or major. If it is determined that the modification is a major modification, then all major amendments shall follow the same process applicable for the original approval.

A modification will be considered a major substantial change and the original permitting process will be required if it meets any of the following criteria:

4.7.15.15. A increase in density;

4.7.15.16. A change in the special use permit conditions imposed by Town Council;

4.7.15.17. Involves a change in uses permitted with the special use permit;

4.7.15.18. An expansion of building square footage of 10% or greater, not to exceed maximum limits as permitted in the UDO; and

4.7.15.19. A substantial rearrangement of uses on a site which may impact adjacent or on site uses, open space and recreation provisions, vehicular and pedestrian access to and across that site, vehicular and pedestrian circulation on the site, or public or private infrastructure and utilities installations shall constitute a modification.

(Ord. of 10-9-2018; Amend. of 2-9-2021(3); Amend. of 6-8-2021(7); Amend. of 6-8-2021(13); Amend. of 2-8-2022; Amend. of 1-10-2023(3))

The Town may adopt temporary moratoria on any Town development approval required by law in accordance with G.S. 160D-107. 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.

To adopt a temporary moratorium the Town Council shall hold a legislative hearing and shall publish a notice of the hearing in a newspaper having general circulation in the area not less than seven days before the date set for the hearing. No moratorium may be subsequently renewed or extended for any additional period unless the town shall have taken all reasonable and feasible steps proposed to be taken 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.

4.8.1. Permit Choice.

If a complete application made in accordance with the Unified Development Ordinance is submitted for a development approval and a development regulation changes between the time the application was submitted and a decision is made, the applicant may choose which version of the development regulation will apply to the application. If the completed development permit applicant chooses the version of the rule or ordinance applicable at the time of the permit application, the development permit applicant shall not be required to await the outcome of the amendment to the rule, map, or ordinance prior to acting on the development permit, pursuant to G.S. 160D-108.

(Ord. of 10-9-2018; Amend. of 2-9-2021(3); Amend. of 6-8-2021(7); Amend. of 6-8-2021(9); Amend. of 6-8-2021(13))

4.8A.1 Application and Conditional Zoning Review Procedure.

1.

The application for a conditional rezoning approval shall also be accompanied by an application to amend the zoning map (rezoning) to the conditional zoning district. The rezoning application shall be submitted concurrently with the conditional zoning master development plan. The approved master development plan shall provide the framework for development in the conditional zoning district. All applications must include a master development plan, supporting information and text which specifies the use or uses intended for the property, dimensional standards, and any development standards to be approved concurrently with the rezoning application. Development standards include such things as parking, landscaping, design guidelines, and buffers.

2.

Applications and proposals for conditional zoning approval shall only be considered within nonresidential zoning districts (CB, CR, C-LD, AD, O&I and ID) and mainland residential districts (R-20 and R-7). No conditional zoning proposals shall be considered within a residential zoning district on the island portion of the Town's planning jurisdiction nor shall any proposal within a nonresidential zoning district on the mainland contain more than 25 percent of the total enclosed floor area as a residential use. Within mainland residential districts, a minimum 25-acre contiguous tract is required for any conditional zoning request. Such tract may consist of individually-owned parcels under single site control through a duly established agent agreement.

3.

Development agreements may be incorporated into any conditional zoning request.

4.

An application for conditional zoning approval shall be accompanied by 12 hard copies and one digital copy of a conditional zoning master development plan.

5.

The master development plan shall be prepared by and sealed by a licensed land surveyor, landscape architect, or engineer registered to practice in the state of North Carolina. The master development plan shall include the submission requirements contained herein and any other information deemed necessary by the UDO Administrator, Planning Board, or Town Council. For nonresidential projects, the master development plan may be prepared in accordance with the requirements of Section 5.6 to satisfy the site plan approval process thus necessitating only the issuance of a zoning permit following approval. The following shall be included on any proposed master development plan:

a)

Boundaries of any proposed or pending zoning districts on site. Boundaries must be described by bearing and distance where they do not follow described boundaries.

b)

Location, dimensions, density, and description of proposed land use(s) on each tract or parcel, including single-family residential, multi-family residential, commercial, office, institutional, industrial, and recreational. Recreational uses shall specify type and future ownership. (Approximation acceptable.)

c)

Location and dimensions of existing structures on the site and all adjacent tracts, including existing buildings or structures to be removed.

d)

Location of roads, streets, and circulation patterns; including any proposed or required bicycle or pedestrian facilities. (Approximation acceptable.)

e)

FEMA-designated flood hazard areas, including flood zone designations.

f)

Location and description of CAMA Areas of Environmental Concern, including 404 Wetland areas as determined by the Army Corps of Engineers and coastal wetlands as determined by NCDEQ.

g)

Generalized stormwater management plan.

h)

For residential uses, the total maximum number and type of dwelling units, height, uses, and density, by development phase. (Approximation of phasing is acceptable.)

i)

For nonresidential uses, the height, approximate footprint and location of all structures.

6.

The UDO Administrator or his/her designee will review the conditional zoning master development plan and may require a Technical Review Procedure. The Technical Review Committee may include, but not necessarily be limited to, the following individuals/departments: UDO Administrator, building inspector, Town Manager, Fire department, Police Department, NC Division of Coastal Management, NC Department of Environmental Quality, Brunswick County Utilities, or Brunswick County Environmental Health. Comments and review statements shall be included in the UDO Administrator's staff report to the Planning Board which shall be provided within 60 days of receipt of a complete application.

7.

The Planning Board shall provide a recommendation to the Town Council within 90 days following receipt of the application for a conditional zoning district proposal and associated master development plan.

8.

Following receipt of recommendation from the Planning Board, the Town Council shall approve, conditionally approve, or deny the conditional zoning master development plan.

9.

When evaluating an application for the creation of a conditional zoning district, the Planning Board and Town Council shall consider the following:

a)

The application's consistency to the general policies and objectives of the Town's Comprehensive Plan, any other officially adopted plan that is applicable, and the Unified Development ordinance.

b)

The potential impacts and/or benefits on the surrounding area, adjoining properties.

c)

The report of results from the public input meeting.

10.

The Town Council may not vote to rezone property to a conditional zoning district during the time period beginning on the date of a municipal general election and concluding on the date immediately following the date on which the Town Council holds its organizational meeting following a municipal general election unless no person spoke against the rezoning at the public hearing.

4.8A.2 Public Input Meeting.

1.

Prior to the Planning Board meeting on the rezoning application, the applicant must conduct one public input meeting and file a report of the results with the UDO Administrator.

2.

The report for the Planning Board meeting will include a summary of the public input meeting.

3.

The applicant shall mail a notice for the public input meeting to the owners of all properties located within 500 feet of the perimeter of the project bounds not less than ten days prior to the scheduled meeting.

4.

The notice shall include the time, date, and location of the meeting as well as a description of the proposal.

5.

The applicant's report of the meeting shall include:

a)

A copy of the letter announcing the meeting

b)

A list of adjoining property owners contacted

c)

An attendance roster

d)

A summary of the issues discussed

e)

The results of the meeting including changes to the project's proposal, if any.

4.8A.3 Conditions to Approval of Petition.

1.

In approving a petition for the reclassification of property to a conditional zoning district, the Planning Board may recommend, and the Town Council may request that the applicant add reasonable and appropriate conditions to the approval of the petition.

2.

Any such conditions shall be in accordance with NCGS § 160D-703 and should relate to the relationship of the proposed use to the impact on Town services, surrounding property, proposed support facilities such as parking areas and driveways, pedestrian and vehicular circulation systems, screening and buffer areas, the timing of development, street and right-of-way improvements, water and sewer improvements, stormwater drainage, the provision of open space, and other matters that the participants in the public input meeting, staff, Planning Board, and Town Council find appropriate or the petitioner may propose. Such conditions to approval of the petition may include right-of-way dedication, easements for streets, water, sewer, or other public utilities necessary to serve the proposed development.

3.

The petitioner shall consider and respond to any such conditions after the Planning Board meeting and within seven days prior to the staff report for the Town Council being published. If the applicant does not agree with the Planning Board or staff's recommendations of additional conditions, the Town Council shall have the authority to accept any or all of the conditions forwarded from the review process. All conditions shall be consented to in writing by the applicant.

4.

If for any reason any condition for approval is found to be illegal or invalid or if the applicant should fail to accept any condition following approval, the approval of the site plan for the district shall be null and void and of no effect and proceedings shall be instituted to rezone the property to its previous zoning classification.

4.8A.4 Effect of Approval.

1.

If a petition for conditional zoning is approved, the development and use of the property shall be governed by the predetermined ordinance requirements applicable to the district's classification, the approved master development plan for the district, and any additional approved rules, regulations, and conditions, all of which shall constitute the zoning regulations for the approved district and are binding on the property as an amendment to these regulations and to the zoning maps.

2.

The conditional zoning request, once approved, shall be effective upon property owner signature(s).

3.

Following the approval of the petition for a conditional zoning district, the subject property shall be identified on the zoning map by the appropriate district designation. A parallel conditional zoning shall be identified by the same designation as the underlying general district followed by the letters "CZ" (for example "CB-CZ").

4.

No zoning or building permit shall be issued for any development activity within a conditional zoning district except in accordance with the approved petition and applicable site plan and/or subdivision plat. Residential projects shall follow the subdivision approval process of Article 5 following the approval of conditional zoning request. Nonresidential projects may comply with the site plan requirement of Section 5.6 by including said requirements on the approved master development plan. Accordingly, resubmittal of a minor or major site plan is not required.

5.

Any violation of the approved regulations and conditions for the district shall be treated the same as any other violation of this ordinance and shall be subject to the same remedies and penalties as any such violation.

4.8A.5 Review of Approval of a Conditional Zoning District.

1.

It is intended that property shall be reclassified to a conditional zoning district only in the event of firm plans to develop the property. Therefore, no sooner than three years after the date of approval of the petition, the UDO Administrator may examine the progress made toward developing the property in accordance with the approved petition and any conditions attached to the approval.

2.

A report of the findings of the UDO Administrator may be provided for Planning Board consideration, which may then recommend that the property be rezoned to its previous zoning classification or to another district.

(Amend. of 2-8-2022)

Editor's note— An amendment adopted February 8, 2022, set out provisions intended for use as § 4.9. Inasmuch as there were already provisions so designated, said section has been codified herein as § 4.8A at the discretion of the editor and per direction from the town.

4.9.1. Purpose and Applicability.

This Ordinance provides for a number of uses to be located by right in each general zoning district subject to the use meeting certain area, height, yard, and off-street parking and loading requirements. In addition to these uses, this Ordinance allows some uses to be allowed in these districts as a special use subject to issuance of a special use permit by the Town Council. The Town Council consideration of special use permits are quasi-judicial decisions. The purpose of having the uses being special is to ensure that they would be compatible with surrounding development and in keeping with the purposes of the general zoning district in which they are located and would meet other criteria as set forth in this section. All special use permits require some form of a site plan as outlined in Section 5.6.

4.9.2. Application Process/Completeness.

4.9.2.1. The deadline for which a special use permit application shall be filed with the UDO Administrator is 30 calendar days prior to the meeting at which the application will be heard. Permit application forms shall be provided by the UDO Administrator.

4.9.2.2. No application shall be deemed complete unless it contains or is accompanied by a site plan drawn to scale which complies with the requirements contained in Section 5.6.4 and a fee as specified in Section 4.2.1.

4.9.2.3. One hard copy of the application, and all attachments and maps, for a special use permit shall be submitted to the UDO Administrator.

4.9.3. Town Council Action.

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

4.9.3.2. Town Council consideration of special use permits are quasi-judicial decisions approved by a simple majority vote. Quasi-judicial decisions must be conducted in accordance with Section 4.11. For the purposes of this section, vacant positions on the Town Council and members who are disqualified from voting on a quasi-judicial matter shall not be considered "members of the Board" for calculation of the requisite majority if there are no qualified alternates available to take the place of such members.

4.9.3.3. Once the application is submitted by the UDO Administrator, the Town Council shall hold a public hearing to consider the application at its next regularly scheduled meeting. A quorum of the Town Council is required for this hearing. Notice of the public hearing shall be as specified in Section 4.3.

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

4.9.3.5. The applicant has the burden of producing competent, substantial evidence tending to establish the facts and conditions which subsection 4.9.3.6 below requires.

4.9.3.6. The Town Council shall issue a special use permit if it has evaluated an application through a quasi-judicial process and determined that:

4.9.3.6.1. The use will not materially endanger the public health or safety if located where proposed and developed according to the plan as submitted and approved by issuance of the special use permit.

4.9.3.6.2. The use meets all required conditions and specifications.

4.9.3.6.3. The use will not substantially injure the value of adjoining property, or that the use is a public necessity.

4.9.3.6.4. The location and character of the use if developed according to the plan as submitted and approved will be in harmony with the area in which it is to be located and in general conformity to the land use plan.

4.9.3.7. Conditions and Guarantees. In all cases in which special uses are granted, the Town Council may require guarantees to ensure compliance with the special use permit conditions. The reasons/justification for special conditions must be based on the findings in Section 4.9.3.6. Conditions and safeguards imposed shall not include requirements for which the town does not have authority under statute to regulate. The town must have written consent from the petitioner in order to apply condition(s). Conditions not authorized by applicable law, include, without limitation, taxes, impact fees, building design elements within the scope of G.S. 160D-702 and driveway-related improvements in excess of those allowed in G.S. 136-18(29).

4.9.3.8. Reserved.

4.9.3.9. Without limiting the foregoing, the Town Council may attach to a permit a condition limiting the permit to a specified duration.

4.9.3.10. All additional comments or requirements shall be entered on the permit and are enforceable in the same manner and to the same extent as any other applicable requirements of this Ordinance.

4.9.4. Effect of Approval.

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

4.9.5. Binding Effect.

Any special use permit so authorized shall be binding to the property included in the permit unless subsequently changed or amended by the Town Council.

4.9.6. Recordation.

Following approval by the Town Council, the special use permit shall be recorded with the Brunswick County Register of Deeds in accordance with G.S. 160D-705(c). The applicant shall provide evidence of recordation to the UDO Administrator.

4.9.7. Certificate of Occupancy.

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

4.9.8. Change in Special Use Permit.

After Special Use Permit approval has been issued, no deviations from the terms of the application or the development approval shall be made until written approval of proposed changes or deviations has been obtained. Such deviations may be approved administratively if it is a Minor Modification. The same development review and approval process required for issuance of the Special Use Permit is required if the modification is a major modification of that approval. Where a modification to the Special Use Permit is requested; the criteria in Section 4.7.15.1 to 4.7.15.19 is to be used to determine if the permit modification is major or a minor modification. An application for a minor modification does not preclude an applicant from seeking a variance from the Board of Adjustment.

(Ord. of 10-9-2018; Amend. of 9-8-2020(2); Amend. of 6-8-2021(8); Amend. of 6-8-2021(13); Amend. of 1-10-2023(3))

4.10.1. Appeals.

4.10.1.1. Any person who has standing under G.S. 160D-102 and G.S. 160D-1402 or the Town may appeal a decision of an administrative officer charged with the enforcement of this Ordinance or any development code to the Board of Adjustment. An appeal is taken by filing a notice of appeal with the UDO Administrator. The notice of appeal shall state the grounds for the appeal. A notice of appeal shall be considered filed with the UDO Administrator when delivered to the Town Hall, is fully filled out, and the date and time of filing shall be entered on the notice by the Town staff.

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

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

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

4.10.1.5. An appeal of a notice of violation or other enforcement order stays enforcement of the action appealed from unless the official who made the decision certifies to the Board of Adjustment after notice of appeal has been filed that because of the facts stated in an affidavit, a stay would cause immediate peril to life or property or because the violation is transitory in nature, a stay would seriously interfere with enforcement of the Ordinance. In that case, enforcement proceedings shall not be stayed except by a restraining order which may be granted by a court. If enforcement proceedings are not stayed, the appellant may file with the official a request for an expedited hearing of the appeal, and the Board of Adjustment shall meet to hear the appeal within 15 days after such a request is filed. Notwithstanding the foregoing, appeals of decisions granting a permit or otherwise affirming that a proposed use of property is consistent with the Ordinance shall not stay the further review of an application for permits or permissions to use such property; in these situations, the appellant may request and the Board of Adjustment may grant a stay of a final decision of permit applications or building permits affected by the issue being appealed.

4.10.1.6. Subject to the provisions of subsection 4.10.1.4, the Board of Adjustment shall hear and decide the appeal within a reasonable time.

4.10.1.7. The official who made the decision or the person currently occupying that position shall be present at the hearing. If the decision maker is no longer employed by the town then the next most applicable person shall be present at the evidentiary hearing as a witness. The appellant shall not be limited at the hearing to matters stated in the notice of appeal. If any party or the Town would be unduly prejudiced by the presentation of matters not presented in the notice of appeal, the Board of Adjustment shall continue the hearing. The Board of Adjustment may reverse or affirm (wholly or partly) or may modify the decision appealed from and shall make any order, requirement, decision, or determination that ought to be made. The Board of Adjustment shall have all the powers of the official who made the decision.

4.10.1.8. When hearing an appeal pursuant to G.S. 160D-102 and G.S. 160D-947 or any other appeal in the nature of certiorari, the hearing shall be based on the record below and the scope of review shall be as provided in G.S. 160D-102 and G.S. 160D-1402.

4.10.1.9. The parties of an appeal that has been made under this subsection may agree to mediation or other forms of alternative dispute resolution.

4.10.2. Variances.

4.10.2.1. An application for a variance shall be submitted to the Board of Adjustment by filing a copy of the application with the UDO Administrator 30 days prior to the meeting at which it will be considered. Applications shall be handled in the same manner as applications for permits.

4.10.2.2. When unnecessary hardships would result from carrying out the strict letter of the UDO, the Board of Adjustment shall vary any of the provisions of the Ordinance upon a showing of all of the following:

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

4.10.2.2.2. The hardship results from conditions that are peculiar to the property, such as location, size, or topography. Hardships resulting from personal circumstances, as well as hardships resulting from conditions that are common to the neighborhood or the general public, may not be the basis for granting a variance. A variance may be granted when necessary and appropriate to make a reasonable accommodation under the Federal Fair Housing Act for a person with a disability.

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

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

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

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

4.10.3. Burden of Proof in Appeals and Variances.

4.10.3.1. When an appeal is taken to the Board of Adjustment in accordance with Section 4.10.1, the UDO Administrator shall have the initial burden of presenting to the Board of Adjustment sufficient evidence and argument to justify the order or decision appealed from. The burden of presenting evidence and argument to the contrary then shifts to the appellant, who shall also have the burden of persuasion.

4.10.3.2. The burden of presenting evidence sufficient to allow the Board of Adjustment to reach the conclusions set forth in Section 4.10.2.2, as well as the burden of persuasion on those issues, remains with the applicant seeking the variance.

4.10.4. Board of Adjustment Action/Voting.

The concurring vote of four-fifths of the Board of Adjustment shall be necessary to grant a variance. A majority of the members shall be required to decide any other quasi-judicial matter or to determine an appeal. For the purposes of this subsection, vacant positions on the Board and members who are disqualified from voting on a quasi-judicial matter shall not be considered members of the board for calculation of the requisite majority.

(Ord. of 10-9-2018; Amend. of 2-9-2021(3); Amend. of 6-8-2021(3); Amend. of 6-8-2021(8))

4.11.1. Evidence/Presentation of Evidence.

4.11.1.1. The provisions of this section apply to all hearings for which a notice is required by Section 4.3. The UDO Administrator or his/her designee shall transmit to the board all applications, reports, and written materials relevant to the matter being considered. The administrative materials may be distributed to the members of the board prior to the hearing if at the same time they are distributed to the board a copy is also provided to the appellant or applicant and to the landowner if that person is not the appellant or applicant. The administrative materials shall become a part of the hearing record. The administrative materials may be provided in written or electronic form. Objections to inclusion or exclusion of administrative materials may be made before or during the hearing. Rulings on unresolved objections shall be made by the board at the hearing.

4.11.1.2. All persons who intend to present evidence to the decision-making board shall be sworn in by the Chair. The Chair of the Board or any member acting as Chair and the Clerk to the Board are authorized to administer oaths to witnesses in any matter coming before the Board. Any person who, while under oath during a proceeding before the decision-making board, willfully swears falsely is guilty of a Class 1 misdemeanor. The applicant, the Town of Oak Island, and any person who would have standing to appeal the decision under G.S. 160D-1402(c) shall have the right to participate as a party at the evidentiary hearing. Other witnesses may present competent, material, and substantial evidence that is not repetitive as allowed by the board.

4.11.1.3. All findings and conclusions necessary to the issuance or denial of the requested permit or appeal (necessary findings) shall be based upon competent, substantial evidence. The term (competent evidence, as used in this subsection, 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 General Court of Justice if (1) the evidence was admitted without objection or (2) 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 subsection, shall not be deemed to include the opinion testimony of lay witnesses as to any of the following:

4.11.1.3.1. The use of property in a particular way would affect the value of other property.

4.11.1.3.2. The increase in vehicular traffic resulting from a proposed development would pose a danger to the public safety.

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

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

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

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

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

4.11.1.8. The decision-making board through the Chair, or in the Chair's absence, anyone acting as the Chair may subpoena witnesses and compel the production of evidence. To request issuance of a subpoena, persons with standing under G.S. 160D-102 and G.S. 160D-1402 may make a written request to the Chair explaining why it is necessary for certain witnesses or evidence to be compelled. The Chair shall issue requested subpoenas he or she determines to be relevant, reasonable in nature and scope, and not oppressive. The Chair shall rule on any motion to quash or modify a subpoena. Decisions regarding subpoenas made by the Chair may be appealed to the full decision-making board. If a person fails or refuses to obey a subpoena issued pursuant to this subsection, the decision-making board or the party seeking the subpoena may apply to the General Court of Justice for an order requiring that its subpoena be obeyed, and the court shall have jurisdiction to issue these orders after notice to all property parties.

4.11.2. Modification of Application at Hearing.

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

4.11.2.2. Unless such modifications are so substantial or extensive that the decision-making board cannot reasonably be expected to perceive the nature and impact of the proposed changes without revised plans before it, the decision-making board may approve the application with the stipulation that the permit will not be issued until plans reflecting the agreed upon changes are submitted to the UDO Administrator, or if the modifications would change the content of the public notifications.

4.11.3. Record.

4.11.3.1. A record shall be made of all hearings required by Section 4.2 and such recordings shall be kept as provided by state law. Minutes shall also be kept of all such proceedings. A transcript may be made, but is not required.

4.11.3.2. All documentary evidence, including any exhibits, presented at a hearing as well as all other types of physical evidence shall be made a part of the record of the proceedings and shall be kept by the Town in accordance with G.S. 160D-102 and G.S. 160D-1402.

4.11.4. Quasi-Judicial Decision.

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

4.11.5. All quasi-judicial decisions must hold an evidentiary hearing to gather competent, material, and substantial evidence to establish the facts of the case; the evidentiary hearing must have testimony under oath; must establish written findings of fact and conclusions of law in accordance with G.S. 160D-406.

4.11.6. The board may continue an evidentiary hearing that has been convened without further advertisement. If an evidentiary hearing is set for a given date and a quorum of the board is not then present, the hearing shall be continued until the next regular board meeting without further advertisement pursuant to G.S. 160D-406(b).

(Ord. of 10-9-2018; Amend. of 2-9-2021(3); Amend. of 6-8-2021(8))

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

(Ord. of 10-9-2018)

4.13.1. Every quasi-judicial decision shall be subject to review by the Superior Court of Brunswick County by proceedings in the nature of certiorari pursuant to G.S. 160D-102 and G.S. 160D-1402.

4.13.2 A petition for review shall be filed with the Brunswick County 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 Section 4.11.4. When first class mail is used to deliver notice, three days shall be added to the time to file the petition.

4.13.3. A copy of the writ of certiorari shall be served upon the Town of Oak Island.

(Ord. of 10-9-2018; Amend. of 2-9-2021(3))