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.

This ordinance specifies, as authorized by G.S. § 160D-108(d)(2) in compliance with G.S. § 160D-403, that special use permits expire one (1) year after issuance unless work has substantially commenced and terminate six (6) months after the use of the property as specified in the special use ceases.

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

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.

Board of Adjustments (BOA)

Technical Review Committee (TRC)

Planning Board (PB)

Historic Preservation Commission (HPC)

Town Council (TC)

Planning Department (PD)

Before making a decision on an application for an amendment to the zoning map or zoning text, appeal of a decision of an administrative officer, variance, special use permit, or major subdivision preliminary plat the Town Council or Board of Adjustment (as appropriate) shall hold a hearing on the application as soon after the submittal of a completed application as feasible (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.

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.

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.

The decision-making board may continue the 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 present, the hearing shall be continued until the next regular board meeting without further advertisement.

No amendment shall be adopted by the Town Council until after public notice and meeting before the Planning Board and public notice and hearing before the Town Council. Notice of such a public meeting/hearing shall be published once a week for two (2) successive calendar weeks in a local newspaper of general circulation in the town.

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 first class mail to the owner of that parcel of land and all abutting property owners, including those separated by a street, railroad, or other transportation corridor as shown on the Johnston County tax listing at the last addresses listed for such property owners on the Johnston 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 to the property to be considered for rezoning, as shown on the Johnston County tax listing. The application shall be considered incomplete without such material.

4.3.2.2. At least ten (10) but no more than twenty-five (25) calendar days prior to the date of the meeting at which the Planning Board/Town Council will consider the request for rezoning, the Town Clerk shall mail a letter of notification containing a description of the request and the time, date and location of the public meeting/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 meeting/hearing not less than ten (10) calendar days prior to the Planning Board/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. The first class mail notice required under subsections 4.3.2.1 and 4.3.2.2 of this section shall not be required if the zoning map amendment directly affects more than fifty (50) properties, owned by a total of at least fifty (50) different property owners, and the town elects to use the expanded published notice. In this instance, the town may elect to either make the mailed notice provided for in this section or may as an alternative elect to publish a notice of the meeting or hearing as required by G.S. § 160D-301, but provided that each advertisement shall not be less than one-half (½) of a newspaper page in size. The advertisement shall only be effective for property owners who reside in the area of general circulation of the newspaper which publishes the notice. Property owners who reside outside of the newspaper circulation area, according to the address listed on the most recent Johnston County property tax listing for the affected property, shall be notified according to the provisions of subsections 4.3.2.1 and 4.3.2.2.

4.3.3.1. Notice of meetings/hearings conducted pursuant to Sections 4.9, 4.10 and 4.11 shall be mailed to the person or entity whose appeal, application, or request is the subject of the meeting/hearing; to the owner of the property that is the subject of the meeting/hearing if the owner did not initiate the meeting/hearing; and to the owners of all parcels of land abutting the parcel of land, including those separated by a street, railroad, or other transportation corridor 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 (10) days, but not more than twenty-five (25) days, prior to the date of the meeting/hearing. Within that same time period, the town shall also prominently post a notice of the meeting/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. In the case of special use permits, notice shall be given to other potentially interested persons by publishing a notice in a newspaper having general circulation in the area one (1) time not less than ten (10) nor more than twenty-five (25) days prior to the meeting/hearing.

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

The permit-issuing authority may extend for a period up to six (6) months the date when a zoning or special use permit would otherwise expire pursuant to G.S. § 160D-108(d)(2) in compliance with G.S. § 160D-403 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 through a quasi-judicial proceeding 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.

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:

4.4.2.1. 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

4.4.2.2. 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).

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.

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.

Zoning, special use permits, and floodplain development permits authorize the permittee to make use of land and structures in a particular way. 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 for the purposes authorized in the 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.

Whenever a special use or 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 (1) acre, nothing authorized by the permit may be done until the record owner of the property signs a written acknowledgment that the permit has been issued so that the permit may be recorded in the Johnston County Registry and indexed under the record owner's name as grantor.

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.

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 (1) 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 Johnston County tax listing.

4.6.2.4. One (1) hard copy and one (1) electronic copy of such application shall be filed with the UDO Administrator not later than thirty (30) calendar days prior to the Planning Board meeting at which the application is to be considered.

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

The Planning Board shall hold a noticed public meeting and advise and comment on whether the proposed text amendment or map amendment is consistent with the adopted comprehensive plan and any other applicable officially adopted plans. The Planning Board shall provide a written recommendation to the 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.

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 scheduled for 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 thirty (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. Prior to adopting or rejecting any zoning text and/or map amendment (including small scale rezonings), the Town Council shall adopt a statement describing whether the action is consistent with the adopted comprehensive plan and any other applicable officially adopted plans and explaining why the Town Council considers the action taken to be reasonable and in the public interest. This statement is not subject to judicial review.

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 (1) 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.

4.6.4.6.3. Town Council consideration of amendments and rezonings, including conditional zoning are legislative and are passed as ordinances. Members who refuse to vote but are not disqualified and are not excused by the council will be considered to have voted in the affirmative.

Conditional Zoning Districts (CZ) and (PUD) Planned Unit Development Conditional Zoning Districts (PUD) are districts with conditions voluntarily added by the applicant and approved in a legislative procedure by the Town Council in accordance with G. S. 160D-7-3 and in accordance with Section 4.6 Amendment/Rezoning/Conditional Zoning Procedures. Conditional Zonings (CZ and PUD) provide for orderly and flexible development under the general policies of this ordinance without the constraints of some of the prescribed standards guiding by-right development. This Conditional Zoning may be used in any district but is not intended to relieve hardships that would otherwise be handled using a variance procedure.

4.6.5.1. Action by Applicant. Conditional Zoning (CZ) or Planned Unit Development (PUD) classification shall only be considered upon the request of the owners and/or their representatives of all the property to be included in the specific Conditional Zoning request. A Conditional Zoning shall consist of land under unified control which may be planned and developed as a single development or as an approved programmed series of development phases by multiple developers. "Unified control" means that all land to be included within a Conditional Zoning shall be owned or otherwise under the legal control of the applicant for a Conditional Zoning. The applicant shall be legally capable of providing a commitment to the town that the Conditional Zoning development will comply with all documents, plans, standards and conditions ultimately approved by the town.

4.6.5.2. Fair and Reasonable Conditions. Within an approved Conditional Zoning (CZ or PUD), no use shall be permitted except pursuant to the conditions imposed by the applicant on the Conditional Zoning in the approval of the rezoning. The Town Council and the applicant may mutually agree to additional reasonable and appropriate conditions or safeguards to serve the purpose and intent of this section, and to preserve public welfare, and justice. The provisions of the Conditional Zoning Master Plan shall replace all conflicting development regulations set forth in this ordinance which would otherwise apply to the development site. The Planning Board may recommend and the Town Council (with mutual approval of the applicant) may attach reasonable and appropriate conditions including, but not limited to, the location, nature, hours of operation, and extent of the proposed use(s). Conditions and site-specific standards shall be limited to those that address conformance of the development and use of the site to this ordinance and officially adopted plans and those standards and conditions that address the impacts reasonably expected to be generated by the development and use of the site. The applicant will have a reasonable opportunity to consider and respond to any conditions and site-specific standards proposed by either the Planning Board or the Town Council prior to final action. In accordance with G.S. § 160D-7-3.

4.6.5.3. Content of Application. A Conditional Zoning (CZ or PUD) shall consist of the Existing Conditions Map, a Sketch Plan (may be waived by Administrator as appropriate), and Master Plan; as well as any other plans, drawings, renderings, elevations, maps and documents specifically included as development documents for approval by the Board of Commissioners. The Conditional Zoning Master Plan, is a site specific that is a condition of the Conditional Zoning rezoning. In addition to those items required for site plans in Section 5.7, a Conditional Zoning Master Plan shall, at a minimum, illustrate the following:

4.6.5.3.1. The underlying zoning districts and a full list of proposed uses consistent in character with those zoning districts. Such use classifications may be selected from any of the uses, whether permitted, by right or with supplemental standards, allowed in the general zoning district upon which the Conditional Zoning (CZ or PUD) is based. Uses not otherwise permitted within the general zoning district shall not be permitted within the Conditional Zoning.

4.6.5.3.2. General traffic routes (external and internal) to and from the development with major access points identified.

4.6.5.3.3. Tabular data, including the range and scope of proposed land uses, proposed densities, floor area ratios and impervious surface ratios as applicable to development type; and land areas devoted to each type of general land use and phase of development;

4.6.5.3.4. A proposed development schedule if the project is to be phased.

4.6.5.4. Exception for Conditional Zonings with Use Limitations Only: If an applicant proposes a Conditional Zoning (CZ) which meets the following criteria, no Conditional Zoning Master Plan shall be required in the application:

4.6.5.4.1. The only proposed deviation in use from the underlying zoning is to impose additional limitations on the uses that will be allowed in the Conditional Zoning.

4.6.5.4.2. No other deviations from the standards of the underlying zoning are proposed in the Conditional Zoning.

4.6.5.5. Conditional Zoning Procedure. The procedure for approval of a Conditional Zoning (CZ or PUD) shall follow the procedure for review of zoning text and map amendments (rezoning) as outlined in Sections 4.6.

4.6.5.6. Effect of Approval. The applicant may proceed with development only after approval of the Conditional District Master Plan by the Town Council, followed by approval of any necessary Site Plans or Subdivision Plats, except that all subsequent approvals shall be completed by the Administrator. The development and use of all land within the Conditional Zoning (CZ or PUD) shall be in keeping with the approved Master Plan and all applicable provisions therein.

4.6.5.6.1. Final Approval by Stages. If so reflected on the Master Plan, the Town Council may allow the phasing of final development. Each phase of development shall adhere to all applicable provisions and standards of this section and the applicable Conditional Zoning Master Plan.

4.6.5.6.2 Substantial Changes. Any substantial change to a Master Plan as noted below shall be reviewed by the Planning Board and approved or denied by the Town Council as an amended Conditional Zoning District (CZ or PUD). The following changes to a Conditional Zoning Master Plan shall require approval by the Town Council:

• Land area being added or removed from the Conditional Zoning District.

• Modification of special performance criteria, design standards, or other requirements specified by the enacting ordinance.

• A change in land use or development type beyond that permitted by the approved Conditional District Master Plan.

• When there is introduction of a new vehicular access point to an existing street, road or thoroughfare not previously designated for access.

• When there is an increase in the total number of residential dwelling units originally authorized by the approved Conditional Zoning Master Plan.

• When the total floor area of a commercial or industrial classification is increased more than ten (10) percent beyond the total floor area last approved by Town Council. Changes of less than ten (10) percent may be approved by the Administrator.

• Any change which alters the basic development concept of the Conditional Zoning Master Plan.

4.6.5.6.3. Rescission of Conditional Zoning Districts: The applicant shall secure a valid building or construction permit(s) within two (2) years from date of approval of the Conditional Zoning District (CZ or PUD) unless otherwise specified. If such project is not complete or a valid building or construction permit is not in place at the end of the 2-year period, the Administrator shall notify the applicant of either such finding. Within sixty (60) calendar days of notification, the Administrator shall make a recommendation concerning the rescission of the Conditional Zoning District to the Town Council. The Town Council may then rescind the Conditional Zoning District, or extend the life of the Conditional Zoning District for a specified period of time. The rescission of a Conditional Zoning District shall follow the same procedure as was needed for approval.

4.6.5.6.3.1. If a petition for a CZ or PUD is approved, the development and use of the property shall be governed by the predetermined ordinance requirements applicable to the district's category, the approved site plan for the district, and any additional approved rules, regulations, site-specific standards 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.

4.6.5.6.3.2. A CZ or PUD District approval and the conditions imposed upon its approval shall be perpetually binding on the land unless it is subsequently amended pursuant to subsection 4.6.5.7 amendments or otherwise rezoned.

4.6.5.6.3.3. Any CZ or PUD District approved under this ordinance shall have vested rights pursuant to G.S. § 160D-108 as set forth in Section 4.7, Vested Rights, of this ordinance.

4.6.5.7. Amendments to Approval.

4.6.5.7.1. Except as provided in subsection 4.6.5.7.2 below, changes to an approved petition or to the conditions attached to the approved petition shall be treated the same as amendments to these regulations or to the zoning maps and shall be processed in accordance with the procedures in this chapter.

4.6.5.7.2. Minor deviations from an approved CZ or PUD Site Plan may be approved by the Planning Director. Minor deviations that are authorized are those that appear necessary in light of technical or engineering considerations as long as they comply with the standards of this ordinance Minor deviations shall consist of:

□ Floor area. Expansion of building floor area by not more than ten (10) percent.

□ Height. An increase of building height by not more than ten (10) percent.

□ Parking spaces. An increase or decrease of parking spaces by not more than ten (10) percent or ten (10) spaces, whichever is less.

□ Relocation of buildings. Minor relocation of buildings or other site elements if they maintain the same general building relationships, topography, landscaping and utility design.

□ Minor changes. Minor changes in building elevations and landscaping provided that the change retains the same general architectural relationships and uses equivalent building and/or landscaping materials.

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 (2) 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-402, 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.

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.

A vested right, in accordance with G.S. § 160D-108, 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 development plan shall follow the procedural requirements for the issuance of a special use permit as outlined in Section 4.9. Changes in or modifications to an approved site-specific development plan shall be made only with the concurrence of the Town Council in accordance with the provisions of Section 4.9.7. 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. If building permits are issued, the provisions of G.S. § 160D-108 shall apply, except that a building permit shall not expire or be revoked because of the lack of progress during the two-year vesting period. 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.

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. Site-Specific or Phased Development Plan. A site-specific or phased development plan which has been submitted to the Town of Smithfield by a landowner in accordance with G.S. § 160D-108(D)(3) describing in detail the type and intensity of use for a specific parcel or parcels of property. Such plan shall be in the form of a site plan and shall include the information required by Section 5.6. All site-specific or phased development plans shall be approved by the Town Council.

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

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.

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 development plan upon such terms and conditions as may be determined necessary to protect the public health, safety, and welfare. Failure to comply with the approved terms and conditions shall result in a forfeiture of vested rights.

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.

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.

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.

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

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

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. 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.

4.9.2.1. The deadline for which a special use permit application shall be filed with the UDO Administrator is thirty (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 and a fee as specified in Section 2.7.

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

4.9.3.1. Public Notification. At least ten (10), but no more than twenty-five (25) calendar days prior to the date of the Planning Board meeting, notice of the proposed petition or application shall be mailed by first class mail to the owner of that parcel of land and all abutting property owners including those separated by a street, railroad, or other transportation corridor as shown on the Johnston County tax listing at the last addresses listed for such property owners on the Johnston County tax abstracts. The party applying for the change in zoning classification shall submit, with the request for special use permit, a list of the names of the owners, their addresses, and the tax parcel numbers of the property involved in the change and all properties any portion of which is within two hundred (200) feet of the property to be considered for special use permit, as shown on the Johnston County tax listing. The application shall be considered incomplete without such material.

4.9.3.2. Planning Board Review. The Planning Board shall review the special use permit application and conduct a public meeting about the proposed special use permit in order to obtain public comments and to provide feedback to the applicant. The Planning Board shall not make or forward any recommendation to the Town Council. Subsequent to the Planning Board review, the UDO Administrator shall schedule the evidentiary hearing before the Town Council within thirty (30) days.

4.9.4.1. 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 Council" for calculation of the requisite majority vote.

4.9.4.2. 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. In the course of evaluating the proposed special use, the Town Council may request additional information from the applicant. A request for any additional information may stay any further consideration of the application by the Town Council.

4.9.4.3. 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. The Town Council shall include in its comments a statement as to the consistency of the application with the town's currently adopted Comprehensive Plan.

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

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

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

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

4.9.4.5.3. Adequate utilities, drainage, parking, or necessary facilities have been or are being provided.

4.9.4.5.4. The proposed use shall not be noxious or offensive by reason of vibration, noise, odor, dust, smoke, or gas.

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

4.9.4.5.6. That the use will not adversely affect the use or any physical attribute of adjoining or abutting property.

4.9.4.5.7. That 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.

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

4.9.4.6. Conditions and Guarantees. Prior to the granting of any special use, the Town Council may require conditions and restrictions upon the establishment, location, construction, maintenance, and operation of the special use as is deemed necessary for the protection of the public interest and to secure compliance with the standards and requirements specified above. In all cases in which 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 stated/tied to Section 4.9.4.5.

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

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

4.9.4.9. 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.

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.

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.

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.

An application to materially change a special use permit 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.

4.10.1.1. Any person who has standing under G.S. § 160D-405 or the town may appeal a decision of an administrative officer charged with the enforcement of this ordinance to the Board of Adjustment. An appeal is taken by filing a notice of appeal with the Town Clerk. The notice of appeal shall state the grounds for the appeal. A notice of appeal shall be considered filed with the Town Clerk when delivered to the Town Hall, 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 thirty (30) days from receipt of the written notice within which to file an appeal. Any other person with standing to appeal shall have thirty (30) days from receipt from any source of actual or constructive notice of the decision within which to file an appeal.

4.10.1.4. 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 fifteen (15) days after such a request is filed. Notwithstanding the foregoing, appeals of decisions granting permit or otherwise affirming that a proposed use of property is consistent with the ordinance shall not stay the further review of an application for permits or permissions to use such property; in these situations, the appellant may request and the Board of Adjustment may grant a stay of a final decision of permit applications or building permits affected by the issue being appealed.

4.10.1.6. Subject to the provisions of subsection 4.10.1.3, the Board of Adjustment shall hear and decide the appeal within a reasonable time.

4.10.1.7. The official who made the decision shall be present at the hearing as a witness. The appellant shall not be limited at the hearing to matters stated in the notice of appeal. If any party or the 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-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-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.

4.10.2.1. An application for a variance shall be submitted to the Board of Adjustment by filing a copy of the application with the UDO Administrator thirty (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.

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.

4.10.3.1. 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.

The concurring vote of four-fifths (⅘) of the full membership of Board of Adjustment and not excused from voting 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.

The Subdivision Preliminary Plat (Master Plan) review process is required for those divisions of land into four (4) or more lots, or which require dedication of public utilities and/or public streets (Part X, Subdivision Regulations).

No such land disturbing activity shall take place until a Subdivision Master Plan has been approved.

See Section 5.4.

All major subdivision preliminary plats shall be submitted in accordance with Section 10.100 and shall be accompanied by a completed application and payment of a fee as adopted by the Town Council (see Section 2.7). All major subdivision preliminary plats shall be submitted twenty-one (21) days in advance of the Planning Board meeting at which they are to be reviewed.

The UDO Administrator shall circulate the plat to relevant governmental agencies and officials in accordance with Section 5.5.3. who shall review the application to ensure that it is complete and in compliance with UDO requirements and other requirements. The UDO Administrator shall prepare a report and recommendation on the application and schedule the matter for a Planning Board review at the next available, regularly scheduled meeting.

At least ten (10), but no more than twenty-five (25) calendar days prior to the date of the Planning Board meeting, notice of the proposed petition or application shall be mailed by first class mail to the owner of that parcel of land and all abutting property owners including those separated by a street, railroad, or other transportation corridor as shown on the Johnston County tax listing at the last addresses listed for such property owners on the Johnston County tax abstracts. The party applying for the change in zoning classification shall submit, with the request for preliminary plat, a list of the names of the owners, their addresses, and the tax parcel numbers of the property involved in the change and all properties any portion of which is within two hundred (200) feet of the property to be considered for preliminary plat, as shown on the Johnston County tax listing. The application shall be considered incomplete without such material.

The Planning Board shall review the preliminary plat and conduct a public meeting about the proposed preliminary plat in order to obtain public comments and to provide feedback to the developer. Subsequent to the Planning Board review, the UDO Administrator shall schedule the evidentiary hearing before the Town Council within forty-five (45) days of the Planning Board review of the application.

A public notice of shall be mailed to the person or entity whose application is the subject of the hearing; to the owner of the property that is the subject of the hearing if the owner did not initiate the hearing; to the owners of all parcels of land abutting the parcel of land that is the subject of the hearing; and to any other persons entitled to receive notice as provided by the local development regulation. The notice shall state the date, time and place of the hearing, reasonably identify the property that is the subject of the hearing and give a brief description of the action requested or proposed. In the absence of evidence to the contrary, the local government may rely on the county tax listing to determine owners of property entitled to mailed notice. The notice must be deposited in the mail at least ten (10) days, but not more than twenty-five (25) days, prior to the date of the hearing. Within that same time period, the 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. The town 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 Council is not then present, the hearing shall be continued until the next regular board meeting without further advertisement.

The Town Council shall hold an evidentiary meeting in accordance with the procedures for quasi-judicial hearings (Section 4.11) on the proposed subdivision preliminary plat and shall approve, deny or approve with conditions, or table the application for a specific number of days. The Town Council may also request additional information of the applicant, other governmental agencies or interested/affected parties in order to aid in the review of the request.

No Preliminary Plat approval shall be granted by the Town Council unless it complies with the following findings of fact:

4.11.10.1. The plan is consistent with the adopted plans and policies of the town;

4.11.10.2. The plan complies with all applicable requirements of this ordinance;

4.11.10.3. There exists adequate infrastructure (transportation and utilities) to support the plan as proposed; and

4.11.10.4. The plan will not be detrimental to the use or development of adjacent properties or other neighborhood uses.

Following denial by the Town Council, the applicant may file a new application and associated fee. Unless the Town Council explicitly states conditions that must be met prior to the resubmission of an application, the applicant shall not submit a new application for the same property within one (1) year of the date of denial by the Town Council unless the application is (i) significantly different from the previously denied application or (ii) the applicant pays a double fee. All applications shall be resubmitted for full review unless the application is resubmitted to address conditions set forth by the Town Council for reapplication

An appeal from the decision of the Town Council regarding a Subdivision Preliminary Plat (Master Plan) may be made by an aggrieved party and shall be made to the Superior Court of Wake County in the nature of certiorari. Any such petition shall be filed with the clerk of the superior court within thirty (30) days after the decision of the Council is filed with the Town Clerk, or after a written copy thereof is delivered to every aggrieved party who has filed a written request for such copy with the secretary or Mayor at the time of its hearing of the case, whichever is later. The decision of the Council may be delivered to the aggrieved party either by personal service or by registered mail or certified mail return receipt requested.

Approval of a Subdivision Preliminary Plat (Master Plan) shall be valid for two (2) years from the date of approval. Subdivisions may be phased according to a schedule established by the applicant. If the approved Subdivision Master Plan provides for multiple phases within the subdivision, a Subdivision Construction Plan approval for any one (1) phase shall extend the Subdivision Preliminary Plat approval for all other phases for a period of two (2) years from the date of the Subdivision Construction Plan approval for that phase. If a Subdivision Construction Plan approval has not been obtained prior to the end of this two-year period, the Subdivision Preliminary Plat approval shall become void.

The Town Council may grant a single extension of this time period of up to one (1) year upon submittal by the applicant of sufficient justification for the extension. Sufficient justification may include, but is not limited to, delays in other outside agency permits, financing institution delays, or other similar reasons beyond the control of the applicant.

Any substantial change to a Subdivision Preliminary Plat (Master Plan) as noted below shall be reviewed by the Planning Board and approved or denied by the Town Council as an amended a Subdivision Preliminary Plat. The following changes to a Subdivision Preliminary Plat shall require approval by the Town Council:

1.

Modification of special performance criteria, design standards, or other requirements specified by the Subdivision Preliminary Plat

2.

A change in land use or development type beyond that permitted by the approved Subdivision Preliminary Plat.

3.

When there is introduction of a new vehicular access point to an existing street, road or thoroughfare not previously designated for access.

4.

When there is an increase in the total number of residential dwelling units originally authorized by the approved Subdivision Preliminary Plat.

5.

When the total floor area of a commercial or industrial classification is increased more than ten (10) percent beyond the total floor area last approved by Town Council. Changes of less than ten (10) percent may be approved by the UDO Administrator.

6.

Any change which alters the basic development concept of the Subdivision Preliminary Plat.

4.12.1.1. The provisions of this section apply to all hearings for which a notice is required by Section 4.3.

4.12.1.2. The town 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 land owners if that person is not the appellant or applicant. The administrative materials shall become part of the hearing record. The administrative materials may be provided in written or electronic form. Objections to the 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.

4.12.1.3. 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.

4.12.1.4. 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:

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

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

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

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

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

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

4.12.1.8. 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.

4.12.1.9. 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-404(b) 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.

4.12.2.1. 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.

4.12.2.2. 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.

4.12.3.1. 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.

4.12.3.2. 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-1402.

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.

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

A petition for review shall be filed with the Johnston County Clerk of Superior Court by the later of thirty (30) days after the decision is effective or after a written copy thereof is given in accordance with Section 4.12.4. When first class mail is used to deliver notice, three (3) days shall be added to the time to file the petition.

A copy of the writ of certiorari shall be served upon the Town of Smithfield.