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Surf City City Zoning Code

SECTION 3

0 PROCEDURES

3.1 General provisions.

   To establish an orderly process to develop land within the jurisdiction of the Town of Surf City, consistent with standard development practices and terminology, this section provides a clear and comprehensible development process that is fair and equitable to all interests including the applicants, affected neighbors, Administrator, staff and related agencies, and the Town Council.
   A.   No Construction to Commence without Permit. No land shall be used or occupied, and no structures shall be erected, moved, extended, or enlarged, nor shall any timbering, clearing, and grubbing, or filling of any lot for the construction of any building be initiated until the Administrator has issued an appropriate development approval which will certify that the proposed work is in conformity with the provisions of this ordinance.
   B.   Development Approvals Run with the Land. Unless provided otherwise by law, all rights, privileges, benefits, burdens, and obligations created by development approvals made pursuant to this Section attach to and run with the land.
(Ord. No. 2024-15, 11-5-24)

3.2 Submission procedures.

   The following requirements shall apply to all applications prior to and for development approval as identified in this Section.
   A.   Applicants. Applications for development approvals may only be made by the landowner, a lessee or person holding an option or contract to purchase or lease land with the permission of the landowner, or an authorized agent of the landowner. The director of the appropriate department, or designee, may require an applicant to present evidence of the authority to submit an application.
   B.   Pre-Submittal Meeting. A pre-submittal conference with the Administrator or designee held prior to the applicant submitting an application for development approval to discuss the procedures, standards and regulations required for development approval in accordance with this Ordinance. The meeting is required with certain applications as outlined on the Development Process Table in Section 3.7. For all other applications, the Pre-Submittal meeting is optional.
      1.   At the time of the pre-submittal conference, applicants shall submit a sketch plan for review by the Administrator. This plan should, in simple sketch form, show the proposed layout of streets, lots and other features in relation to existing conditions.
      2.   When a subdivision is to be developed in stages, a master plan shall be submitted for the entire development and a preliminary plat shall be submitted for each individual stage. A final plat is submitted for individual stages as each stage is developed. Each new stage shall be developed adjacent to an earlier stage.
   C.   Forms. Applications required under this Code shall be submitted with application forms approved by and available from the Planning Department.
   D.   Fees. Application filing fees shall be established and updated as needed to defray the actual cost of processing the application, as listed in the approved Fee Schedule maintained by the Town. Fees shall be submitted with applications.
   E.   Plans. The necessary engineered and/or surveyed plans shall be submitted with each application as outlined in this section.
   F.   Completeness Review.
      1.   Submission.
         a.   All completed applications for development approval shall be submitted to the Administrator, including the application fee, all appropriate forms and documentation, and the plan sets in accordance with the requirements of this Section and the Fee Schedule adopted by the Town Council.
         b.   Applications sufficient for processing shall be submitted to the Administrator or designee, in accordance with the established submission schedule. Schedules indicating submittal dates shall be developed each year and made available to the public.
      2.   Completeness Determination.
         a.   An application shall be considered submitted only after it has been determined to be complete as provided below, not upon submission to the Administrator.
         b.   On receiving a development application, the Administrator shall, within ten (10) business days, determine whether the application is complete or incomplete. A complete application is one that:
            (1)   Contains all information and materials required by this Zoning Ordinance for submittal of the applicable type of application, and in sufficient detail, format, and readability for the Town of Surf City Administrator to evaluate the application for compliance with applicable review standards; and
            (2)   Is accompanied by the fee established for the type of application.
         c.   Complete Applications. Once the application has been determined complete, the Administrator shall:
            (1)   Release the application for payment in accordance with the fee established for the type of application;
            (2)   Upon payment receipt, accept the application as submitted in accordance with the procedures and standards of this Code in effect at the time of the submittal;
            (3)   Provide the applicant written notice of application submittal acceptance electronically; and
            (4)   Copies of the application and plans shall be referred by the Administrator to the appropriate reviewing entities.
          d.   Incomplete Applications.
            (1)   On determining that the application is incomplete, the Administrator shall, within ten (10) business days following submittal, provide the applicant with written notice of the submittal deficiencies electronically. The applicant may correct the deficiencies and resubmit the application for a completeness review.
            (2)   If the applicant fails to resubmit an application within fifteen (15) calendar days after being first notified of submittal deficiencies, the application submittal shall be considered abandoned.
   G.   Additional Information as Needed. The presumption shall be that all the information required in the application forms is necessary to satisfy the requirements of this section. However, it shall be recognized that each application is unique, and therefore more or less information may be required according to the needs of the particular case. The applicant may rely on the recommendations of the Administrator as to whether more or less information should be submitted.
   H.   Withdrawal of Application.
      1.   An applicant may withdraw an application at any time, by filing a statement of withdrawal with the Administrator or designee.
      2.   The statement of withdrawal shall be signed by all persons who signed the application, or in the event of death or incompetence, by the estate's lawful personal representative.
      3.   The Administrator may withdraw applications due to the failure of the applicant to submit required information within ninety (90) days of the initial request.
      4.   An applicant may postpone a scheduled public hearing once per application for up to ninety (90) days after the date the first public hearing was scheduled to occur, after which the Administrator may withdraw the application.
   I.   Related Applications.
      1.   Related applications necessary for development approvals may be filed and reviewed simultaneously, at the option of the applicant, and with approval from the Administrator. Any application that also requires a rezoning, variance or special use permit, shall not be eligible for final approval until the rezoning, variance, or special use permit has been granted.
      2.   Related applications submitted simultaneously are subject to approval of all other related applications; denial or disapproval of any concurrently submitted application shall stop consideration of any related applications until the denied or disapproved application is resolved.
   J.   Active Application Time Period.
      1.   Requests for additional information, corrections, or other modifications for all applications, unless otherwise indicated in this ordinance, shall be returned to the Administrator or designee within ninety (90) days from the date comments on the application are officially issued. Failure to meet this deadline shall result in the application being considered withdrawn and voided, thus requiring a new application, including all requirements associated with a new application.
      2.   Requests for additional information, corrections, or other modifications for applications submitted to address a notice of violation shall be returned to the Administrator or designee within thirty (30) days from the date comments on the application are officially issued. Failure to meet this deadline shall result in the application being considered withdrawn and voided, thus requiring a new application, including all requirements associated with a new application.
(Ord. No. 2024-15, 11-5-24)

3.3 Neighborhood meeting.

   After the application has been deemed complete but prior to the placement of an application on the agenda of a Planning Board or Town Council meeting or approval by the Administrator or designee, the applicant shall hold a mandatory neighborhood meeting for applications as designated on the Development Process Table in Section 3.7.
   A.   Only the initial application for a development shall require a neighborhood meeting unless there are changes in use, an increase of dwelling units or square footage of more than 10%, or a reduction in buffers.
   B.   The purpose of the neighborhood meeting shall be to inform the neighborhood of the nature of the proposed land use and development features, explain the site plan if any, and solicit comments.
   C.   The applicant shall provide notice by first-class mail (at the last addresses listed for such owners in the county tax records) to all property owners within and immediately abutting the subject property. Where the subject property immediately adjoins a public or private right-of-way, landscape or riparian buffer, commonly owned private area, public property, or homeowners' association property, then letters of notification shall be sent to adjoining property owners as if they directly abut the subject property. The notice shall be mailed at least ten (10) days but not more than 25 days prior to the date of the neighborhood meeting.
   D.   The applicant shall prepare and submit to the Administrator or designee a meeting summary that outlines attendance, major points discussed, and any agreements reached between the parties involved.
   E.   The Administrator or designee may alter the neighborhood meeting procedures in cases where there are absentee land owners, limited number of land owners, or other situations that may limit the ability of adjoining property owners to attend the meeting.
(Ord. No. 2024-15, 11-5-24)

3.4 Public notification.

   Public notice for certain applications will be required prior to consideration and/or approval in accordance with the table in Section 3.7 and with the specific requirements of this Article.
   A.   Published Notice.
      1.   An advertisement shall be placed by the Town and published in a newspaper of general circulation once a week for two (2) successive weeks, The first publication shall appear no less than ten (10) days or no more than twenty-five (25) days prior to the date of the public hearing. An annexation public hearing requires a single notice.
       2.   Optional Published Notice. The first-class mail notice required under subsection C. of this section may not be required if a zoning map amendment proposes to change the zoning designation of more than fifty (50) properties owned by at least fifty (50) different property owners. The Town may, instead, elect as an alternative to publish notice of the hearing as outlined in subsection A.1., above, provided that each advertisement shall not be less than one-half of a newspaper page in size.
      3.   All published notices shall contain the following:
         a.   Parcel Identification Number;
         b.   The address of the subject property (if available);
         c.   The general location of the land that is the subject of the application, which may include, a location map;
         d.   A description of the action requested;
         e.   The current and proposed zoning districts;
         f.   The time, date and location of the public hearing;
         g.   A phone number to contact the Town; and
         h.   A statement that interested parties may appear at the public hearing.
   B.   Posted Notice. A sign shall be placed in a prominent location on the subject property(ies) or on an adjacent public street or highway right-of-way not less than ten (10) days prior to the hearing in which the application shall be reviewed, with a case number, notice of the pending action, and a phone number to contact for additional information. When multiple parcels are included, a posting on each individual parcel is not required but the Town shall post sufficient notices to provide reasonable notice to interested persons.
   C.   Mailed Notice. The Town shall notify by first-class mail (at the last addresses listed for such owners in the county tax records) the affected property owner and all property owners within and immediately abutting the subject property. Where the subject property immediately adjoins a public or private right-of-way, landscape or riparian buffer, commonly-owned private area, public property, or homeowners' association property, then letters of notification shall be sent to adjoining property owners as if they directly abut the subject property. The notice must be mailed at least ten (10) but not more than twenty-five (25) days prior to the date of the public hearing. The Town shall certify to the Town Council that fact that mailings occurred, and such certificate shall be deemed conclusive in the absence of fraud. Mailed notices shall contain the following:
      1.   Parcel Identification Number;
      2.   The address of the subject property (if available);
      3.   The general location of the land that is the subject of the application, which may include, a location map;
      4.   A description of the action requested;
      5.   The current and proposed zoning districts;
      6.   The time, date and location of the public hearing;
      7.   A phone number to contact the Town; and
      8.   A statement that interested parties may appear at the public hearing.
(Ord. No. 2024-15, 11-5-24)

3.5 Plan requirements.

   Required plan sheets submitted as a part of an application must have the necessary information for the Administrator and Boards to make an adequate and informed decision on the proposed land development. However, the Administrator may waive or require additional information based on the type of application, site conditions, or the stage of the development process in which the plan is being reviewed.
   A.   General.
      1.   Unless otherwise noted, plans required by this ordinance, or any portion thereof, with the exception of sketch plans, shall be prepared:
         a.   By an engineer, architect, landscape architect, or land surveyor who is authorized by the State of North Carolina to practice as such;
         b.   To a scale of one inch equal to forty (40) feet (1" = 40') or larger;
         c.   In one (1) or more sheets to show clearly the information required by this section and to facilitate the review and approval of the site plan;
         d.   Showing all horizontal dimensions in feet;
         e.   Indicating decimal fractions of a foot shall be rounded to the closest one-hundredth of a foot (0.00); all bearings shall be in degrees, minutes, and seconds; and,
         f.   Showing the name and address of the owner or developer, the north arrow, the date, the scale of the drawing, and the number of sheets. In addition, it shall reserve a blank space three (3) inches in width by five (5) inches in length for the use of the approving authority.
   B.   Sketch Plans, Site and Master Plans.
      1.   The following plans and plats shall have a property boundary, as determined by survey, of the area to be developed with all bearings, distances, and curve data shown and depicting or containing the information indicated in the following table. An "X" indicates that information is required. For preliminary and Final Plats, refer to the Subdivision Ordinance.
Information Required
Sketch Plan
Site Plan/Master Plan
As-Builts
Information Required
Sketch Plan
Site Plan/Master Plan
As-Builts
Cover Sheet:
Name of Development
X
X
X
Scale (Graphic and written)
X
X
X
North Arrow
X
X
X
Vicinity map
X
X
Address of Development or Subdivision, including PINs
X
X
X
Town Project Number
X
X
X
Name, address, and contact information of owner of record, applicant, and/or developer
X
X
X
Name, Address, Phone and Seal of the Plan Preparer
X
X
X
Zoning Classification (existing and proposed)
X
X
X
Site Acreage
X
X
X
Certification Blocks (See Article XII of the Subdivision Ordinance)
X
Title Block:
Property title, PIN no., subdivision name and/or designation
X
X
X
Location (township, county, state)
X
X
X
Date(s) of survey and/or plat preparation and revisions
X
X
X
Name, address, registration number and seal of surveyor, engineer, or other professional/preparer
X
X
X
Site Data/Calculations:
Total acreage of tract and breakout of acreage of parks, open space, zoning district and proposed land use
X
X
Total number of lots existing and proposed
X
X
X
Total number of housing units by housing type
X
X
X
Building information (sq footage, number of stories)
X
X
Parcel data (required and proposed)
X
X
X
   -Lot Size
X
X
X
   -Setbacks
X
X
X
   -Building Height
X
X
X
   -Lot Width
X
X
X
   -Building Coverage
X
X
X
Typical Lot Diagram (show building orientation, driveway location, setbacks, etc)
X
X
X
Impervious Surface Calculations
X
X
Parking calculations (required and proposed)
X
X
X
Linear feet in roads
X
X
Proposed utility providers
X
X
Dates, Status, Conditions of previous approvals and applications relevant to the application or site
X
X
Required notes
X
X
Existing Conditions Plan:
Dimensions, scale, and north arrow
X
X
X
Professional seal
X
X
X
Site size, metes and bounds of property boundary, with north arrow, scale (in graphic and list format), and measurable graphic of larger site showing context of area of proposed change
X
X
X
Property lines and Property Identification Number (PIN) of site and adjacent properties
X
X
X
Zoning districts (of site and adjacent properties to confirm buffer requirements)
X
X
X
Register of Deeds book and page number for any adjacent platted subdivisions
X
X
X
Adjacent property owner information
X
X
X
Owner information for the parcel of the project location
X
X
X
Existing street names
X
X
X
Existing Land use (of site and adjacent properties)
X
X
X
Adjacent streets (name and right-of-way width)
X
X
X
Any existing features located within the right-of-way
X
X
Setbacks
X
X
X
Existing building footprint(s) with square footage and number of stories
X
X
Existing infrastructure: loading areas, parking, driveways, alleys, streets, sidewalks, dumpsters, lighting, septic tanks, drain fields, wells, hydrants (within 500 feet of site), water meters, culverts (other subsurface features), utility or other easements (type, size, and whether public or private), railroads, cemeteries, etc.
X
X
Existing recorded open space or common areas (including easements)
X
X
X
Topographic contours, contours shall extend 100' past property limits
X
X
Water features (name and location), stream buffers, drainage ways, wetlands, and other environmental features
X
X
X
Existing vegetation (with general description and location)
X
X
X
Demolition proposed (on this sheet or separate if existing conditions under demolition are illegible)
X
Proposed Site Features:
Proposed street, lot, and open space layout (subdivision), Final layout for As-Builts
X
X
X
Proposed building layout, Final layout for As-Builts
X
X
X
Existing property lines to be subdivided or recombined
X
X
X
Exact lot lines, bearings, distances, and lot/block nos.
X
X
Zoning District boundaries
X
X
X
Minimum building setback lines
X
X
X
Proposed Lot Area of each new lot created
X
X
Proposed parks, school sites, or other open spaces and responsible parties/owners, Final items to be shown on As-Builts
X
X
Z
The zoning classifications of the tract and adjoining property
X
X
X
Buffer Widths, Street Trees, Landscaped areas (typical plantings)
X
X
X
Street Trees and other site landscaping (actual locations) - see Landscape Plan
X
X
Retaining walls
X
X
The exact location of floodplain, flood fringe, and floodway (FEMA map number, date, and zone designation)
X
X
X
Landscape Plan:
Title of project
X
X
Dimensions, scale, and north arrow
X
X
Professional seal
X
X
All required open space including the size of each area and which open space type
X
X
Indigenous or native vegetation to remain
X
X
X
Identify all required landscaping
X
X
Vehicle use areas including parking, aisles, and driveways
X
X
Roadways and access points
X
X
Plant spacing and native status
X
X
Overhead and underground utilities
X
X
Tree coverage calculations and areas, with samples, if applicable to the changes proposed
X
X
Existing vegetation to remain (with critical root zones shown)
X
Tree protection fencing location (reference detail location if on separate sheet)
X
Proposed landscaping (meeting minimum size and species mixing requirements
X
X
Detailed Plant list (keyed to plan and showing what requirement each plant will fulfill, caliper size and height of plants, condition of root ball, common name and botanical name, number of each plant)
X
X
Landscape buffers (labeled with slope, required width, required plantings, and required fencing, walls, or berms)
X
X
Stream buffers
X
X
Samples of existing vegetation in required buffers (with critical root zones)
X
Street trees (with calculations)
X
X
Screening (with height, details, cross-sections, etc.)
X
X
Lighting, water, sewer, storm drainage systems, and easements (half-toned) to check for conflicts
X
X
Planting details (for trees, shrubs, and groundcover)
X
X
Fences, walls and/or berms (with height and details)
X
X
Roadways and Circulation:
Proposed streets, curbs, dimensions, grades, and linear feet
X
X
X
Connecting streets and platted streets on adjoining properties
X
X
X
Rights-of-way, locations and dimensions
X
X
X
Approximate or final grades
X
X
Street names
X
X
Roadway cross-sections
X
X
Sidewalks, bike lanes, and other improvements
X
X
X
Circulation drives
X
X
X
Parking and loading areas, dimensioned (ADA Compliant)
X
X
X
Bicycle parking
X
X
Electric Vehicle Charging Stations
X
X
Paths, greenways, bike trails
X
X
X
Existing and Proposed Utilities:
Utility, drainage, access, conservation and other easements of record
X
X
Transmission lines/provision of electrical service
X
X
Natural gas lines
X
X
Sanitary sewers, location, line size, top and invert elevations
X
X
Wastewater Treatment
X
X
Water lines, location and line size
X
X
Cable/Broadband/Fiber
X
X
Stormwater facilities, drains, culverts, ponds
X
X
X
Plans for individual water supply and sewerage disposal connections (permission letters form agencies required to be submitted)
X
X
Fire hydrants
X
X
Streetlights or other site lighting
X
X
Grading/Erosion Control and Sedimentation Plans:
Proposed Grading/topography at 5' intervals, elevations, and slope calculations
X
X
A copy of Erosion Control Plan (approval letter from the County required to be submitted)
X
X
Building and Architectural Elevations
X
Phasing Plan (as needed for Master Plans and Phased Subdivisions)
X
Details and Cross Sections
X
Traffic Impact Analysis (if needed).
X
Restrictions (Easements, Covenants) and Ownership/Maintenance Documentation as needed
X
 
(Ord. No. 2024-15, 11-5-24)

3.6 Quasi-judicial processes and evidentiary hearings.

   All quasi-judicial processes are required to have an evidentiary hearing.
   A.   Notice.
      1.   Public notice of the meetings is required. Mailed and Posted Notice shall be provided in accordance with the requirements of Section 3.4.
      2.   Continuation of Hearing with Notice. 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.
   B.   Evidentiary Hearing. Evidentiary hearings are required to gather competent, material, and substantial evidence. They are held by the body making the quasi-judicial decision, either Board of Adjustment or Town Council.
      1.   Contact with Decision-Making Board Members. Contact with any members of a decision-making board prior to the evidentiary public hearing by any individual regarding the matter is prohibited.
      2.   Materials. The Administrator or staff to the Board 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 as long as 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.
      3.   Oaths. The Board Chair 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 board determining a quasi-judicial matter, willfully swears falsely is guilty of a Class 1 misdemeanor.
      4.   Presentation of Evidence. The applicant, the local government, and any person who would have the standing to appeal the decision under G.S. 160D-1402(c) shall have the right to participate as a party at the evidentiary hearing. This includes presenting evidence, cross-examination of witnesses, objecting to evidence and making legal arguments. Other witnesses may present competent, material, and substantial evidence that is not repetitive as allowed by the board. Further, the Council/Board may subpoena witnesses and compel the production of evidence.
      5.   Administrator as Witness. The official who made the decision or the person currently occupying that position, if the decision-maker is no longer employed by the local government, shall be present at the evidentiary hearing as a witness.
      6.   Competent Evidence Required. All decisions shall be based on competent evidence entered in as part of the record. 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 (i) the evidence was admitted without objection, or (ii) the evidence appears to be sufficiently trustworthy and was admitted under such circumstances that it was reasonable for the decision-making board to rely upon it. The term "competent evidence," as used in this subsection, shall not be deemed to include the opinion testimony of lay witnesses as to any of the following:
         a.   The use of property in a particular way would affect the value of other property.
         b.   The increase in vehicular traffic resulting from a proposed development would pose a danger to the public safety.
         c.   Matters about which only expert testimony would generally be admissible under the rules of evidence.
      7.   Objections. Objections regarding jurisdictional and evidentiary issues, including, but not limited to, the timeliness of an appeal or the standing of a party or the inclusion or exclusion of administrative materials, may be made to the Board. The Board chair shall rule on any objections, and the chair's rulings may be appealed to the full board. These rulings are also subject to judicial review pursuant to G.S. 160D-1402. Objections based on jurisdictional issues may be raised for the first time on judicial review.
      8.   Voting. A simple majority is needed for all quasi-judicial decisions with the exception of variances that require a concurring vote of four-fifths of the Board. For the purposes of this subsection, vacant positions on the board and members who are disqualified from voting on a quasi-judicial matter under G.S. 160D-109(d) shall not be considered members of the board for calculation of the majority if there are no qualified alternates available to take the place of such members.
      9.   Decisions. Every quasi-judicial decision shall be based upon competent, material, and substantial evidence in the record. Each quasi-judicial decision shall be in writing, reflect the Board's determination of contested facts and their application to the applicable standards. Each decision approved by the board shall be signed by the chair.
      10.   Effective Date. A quasi-judicial decision is effective upon filing the written decision with the clerk to the Board. The decision of the Board shall be delivered within a reasonable time by personal delivery, electronic mail, or first-class mail to the applicant, landowner, and any person who has submitted a written request for a copy of the decision.
      11.   Judicial Review. Every quasi-judicial decision shall be subject to review by the superior court by proceedings in the nature of certiorari pursuant to G.S. 160D-1402.
   C.   Appeals from Quasi-Judicial Decisions. An appeal from the decision of the Board of Adjustment regarding a quasi-judicial decision may be made by an aggrieved party and shall be made to the Superior Court of Pender County in the nature of certiorari. Any such petition shall be filed with the clerk of the 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 G.S. 160D-406(j). When first-class mail is used to deliver notice, three (3) days shall be added to the time to file the petition. The decision of the Board may be delivered to the aggrieved party either by personal service or by registered mail or certified mail return receipt requested.
(Ord. No. 2024-15, 11-5-24)

3.7 Development review process table.

Development Approval
Section(s)
Process Type
Required Meetings
Reviewer
Public Notice
Approving Body
Appeal
Validity
Development Approval
Section(s)
Process Type
Required Meetings
Reviewer
Public Notice
Approving Body
Appeal
Validity
Zoning Permit
Section 3.8
ADMIN
AD
AD
BOA
6 months
Temporary Use Permit
Section 3.9
ADMIN
AD
AD
BOA
30 days
Sign Permit
Section 3.10
ADMIN
AD
AD
BOA
6 months
Common Signage Plan
Section 3.11
ADMIN
AD
AD
BOA
1 year
Written Interpretatio n
Section 3.12
ADMIN
AD
AD
BOA
6 months
Manufacture d Home Park Site Plan
Section 5.6
ADMIN
TRC
TC
BOA
1 year
Minor Site Plan
Section 3.14
ADMIN
TRC
AD
BOA
1 year
Major Site Plan
Section 3.14
ADMIN
PS, NB
AD, PB, & TRC
A,B,C
TC
BOA
1 year
As-Builts
Section 3.15
ADMIN
TRC
AD
BOA
1 year
Traffic Impact Analysis (TIA)
Section 3.16
ADMIN
TRC
AD
BOC
1 year
Text Amendment
Section 3.17
LEGIS
AD & PB
A
TC
NCSC
Rezoning/Ma p Amendment
Section 3.18
LEGIS
AD & PB
A or C, B
TC
NCSC
Conditional Zoning Type 1 and PUD
Section 3.19
LEGIS
NB
AD &PB
A, B, C
TC
BOA
May be rescinded after two years
Developer Agreement
Section 3.20
LEGIS
AD, PB
A, B, C
TC
NCSC
Varies
Special Use Permit
Section 3.21
QJ
AD
B,C
TC
NCSC
1 year
Variance
Chapter 3.22
QJ
AD
B,C
BOA
NCSC
30 days to appeal
Admin. Appeal
Section 3.23
QJ
AD
B,C
BOA
NCSC
Interpretation of Zoning Boundaries
QJ
AD
B,C
BOA
NCSC
30 days to appeal
ADMIN = Administrative
LEGIS = Legislative
QJ= Quasi-Judicial
AD = Administrator
PB = Planning Board
TRC = Technical Review Committee
TC = Town Council
BOA = Board of Adjustment
NCSC = NC Supreme Court
PS = Pre-Submission Meeting
NB = Neighborhood Meeting   
 
Public Notice:
A = Published Notice
B = Posted Notice
C = Mailed Notice
 
(Ord. No. 2024-15, 11-5-24)

3.8 Zoning permit.

 
   A.   Applicability.
      1.   It shall be unlawful to begin moving, constructing, altering, or repairing, except ordinary repairs, of any building or other structure on a site including an accessory structure, until the Planning Department has issued a zoning permit for such work.
      2.   It shall be unlawful to change the type of use of land, or to change the type of use or type of occupancy of any building, or to extend any use or any lot on which there is a nonconforming use, until the Planning Department has issued a zoning permit for such intended use, including a determination that the proposed use, in all respects, conforms to the provisions of this Ordinance.
      3.   It shall be unlawful to undertake any land-disturbing activity until the Planning Department has issued a zoning permit for such work.
      4.   No zoning permit is required for permitted temporary uses (see Section 3.9).
   B.   Timing of Application. In all cases where a building permit is required, application for a zoning permit shall be made concurrently with the application for a building permit. In all other cases, application shall be made before initiating any of the activities that trigger compliance with this section.
   C.   Action by Administrator. If the proposed application is in conformity with the provisions of this Ordinance, the Planning Department shall issue a zoning permit, provided that all of the following conditions shall apply:
      1.   Issuance of a zoning permit shall in no case be construed as waiving any provisions of this section;
      2.   The Administrator shall not grant any exceptions to the actual meaning of any clause, standards, or regulation contained in this Ordinance to any person making application to excavate, construct, move, alter or use buildings, structures or land;
      3.   The Administrator shall issue a permit when the imposed conditions of this Ordinance are complied with by the applicant regardless of whether the use of the permit would violate contractual or other arrangements (including, but not by way of limitation, restrictive covenants) among private parties;
      4.   The zoning permit shall include a determination that plans, specifications and the intended use of such structure and land do, in all respects, conform to the provisions of this Ordinance. Prior to the issuance of a zoning permit, the Administrator or designee shall consult with other applicable departments, as necessary; and
      5.   If the proposed application, is not in conformity with the provisions of this Ordinance, the Administrator or designee shall not issue the zoning permit and shall provide in writing the cause of such disapproval to the applicant.
   D.   Expiration. Once a zoning permit has been issued, all activities pursuant to such permit shall commence within six (6) months. If the proposed moving, constructing, altering, repairing, or use of land, as set forth in an application for a zoning permit, is discontinued for a period of one (1) year or more, the zoning permit shall lapse and be of no further force and effect.
   E.   Clearing and Grading. A Zoning Permit may be issued by the Town to allow for clearing and grading of a site prior to the issuance of a preliminary plat or site plan approval upon the following:
      1.   Certification that the proposed preliminary plat or site plan meets all requirements outlined in the Zoning Ordinance, Subdivision Ordinance, and any other regulatory document adopted by the Town.
      2.   An Erosion and Sedimentation Control Permit has been issued by the North Carolina Department of Environmental Quality (NCDEQ) which authorizes the proposed clearing and grading activity.
      3.   Tree Preservation requirements outlined in Section 7.3, Tree Preservation, or Section 6, Costal and Environmental Protection, whichever is applicable, have been submitted and found to be compliant.
   F.   Foundation and Final Surveys.
      1.   In all zoning districts, a foundation survey is required when piling or alternate foundation is installed before proceeding with erection of any building.
      2.   In all districts a final survey must be submitted prior to a final inspection and before a certificate of occupancy can be issued.
      3.   Final survey must include name and address of owner, physical address of property, exact boundary lines and minimum setback lines and percentage of lot covered by roofed structure(s) and or impervious decks. Decks must be labeled as roofed or open. All buildings and other structures on the lot must be shown including eaves, utility platforms, decks and stairs. Driveways and walkways must denote materials used.
      4.   Final built upon area (BUA) shall be provided and if applicable, the State Stormwater Permit number shall be included.
(Ord. No. 2024-15, 11-5-24; Ord. No. 2026-01, 1-6-26)

3.9 Temporary use permit.

 
   A.   Applicability.
      1.   Temporary uses occurring on property outside of the public right-of-way, including those operating for less than thirty (30) days within a one-year time period, shall obtain a temporary use permit from the Planning Department that outlines conditions of operations to protect the public, health, safety and welfare subject to the standards of Section 5.14, Temporary Use Standards.
      2.   Temporary uses occurring within the public right-of-way require approval by the Town Council.
   B.   Action by Technical Review Committee
      1.   After receiving a complete application, the Technical Review Committee shall have up to thirty (30) days to review the application. The following items may be required as part of a complete temporary permit application:
         a.   Site Plan Information
            (1)   Location of all areas used for the proposed temporary use (i.e. vendors, parking, tents, refuse collection, restroom facilities);
            (2)   Site should have adequate improved parking facilities on site or permission granted to use improved parking area on an immediately adjacent site on the same side of the street:
               A.   If temporary use occurs on a site with existing principal use operating at the same time, only parking spaces above the minimum requirements can be used for temporary use unless it is determined the use will not impact the routine operation of the principal use.
               B.   The Technical Review Committee may evaluate unimproved parking areas to determine if the area would be safe for vehicular access and travel.
            (3)   Site shall be accessed by an approved NCDOT or Town approved driveway.
         b.   Dates, times, and hours of operation, including a rain/reschedule date;
         c.   Traffic control plan demonstrating how traffic will be managed entering and exiting the site;
         d.   Refuse collection plan and schedule;
         e.   If outdoor lighting is proposed, a lighting plan shall be required; and
         f.   Additional information that would allow the Technical Review Committee to make a determination of approval or denial of a temporary use permit.
      2.   Following completion of the technical review period, the Technical Review Committee shall approve or deny the issuance of a temporary use permit based on the ability to meet the following standards:
         a.   No lighting or electrical service shall be provided without an electrical permit.
         b.   No temporary use structure shall be erected without a building permit.
         c.   No temporary use structure shall block fire lanes or pedestrian or vehicular access.
         d.   The site of the temporary use shall be cleared of all debris at the end of the temporary use. All temporary structures shall be cleared from the site within five days after the use is terminated.
         e.   Written permission of the property owner for temporary use shall be provided.
         f.   Adequate parking shall be provided.
         g.   Required parking for the principal use shall remain available.
         h.   Adequate traffic control measures shall be provided.
         i.   Adequate provisions for trash disposal and sanitary facilities shall be provided; and
         j.   When appropriate, adequate provisions for crowd control shall be provided.
   C.   Revocation of a Temporary Use Permit. A temporary use permit shall be revoked if the Administrator finds that the terms of the permit have been violated or that there is a hazard to the public health, safety and welfare.
   D.   Exceptions. Events sponsored by or conducted by a governmental body.
(Ord. No. 2024-15, 11-5-24; Ord. No. 2025-25, 11-5-25)

3.10 Sign permit.

   A.    Applicability. Except as otherwise provided in Section 8, no sign may be erected, located, or altered in any manner until a sign permit, and building permit, if necessary, has been secured from the Planning Department. The change of copy on a legally constructed sign shall not require a permit unless it is included as part of an approved common signage plan (see Section 3.11).
   B.   Action by Administrator. Following completion of the technical review period, the Administrator or designee shall approve the sign permit, provided the sign meets all requirements of this Ordinance, and all other applicable electrical and North Carolina Building Code requirements.
   C.   Inspection of Permanent Signs.
      1.   The applicant shall request an inspection by the appropriate inspector after installation of the signs.
      2.   The sign permit shall be null and void if sign installation is not completed within six (6) months or the signs are not in conformance with the approved application.
      3.   Valid sign permits may be assigned to a successor as holder of a business license for the same premises.
   D.   Temporary Sign Permit. A temporary sign permit shall be issued in accordance with Section 8, Signs. A common signage plan shall not be required for applications for temporary sign permits.
   E.   Revocation of a Sign Permit. The sign permit shall be revoked if a sign is found to be in violation of the requirements of this Ordinance, or other applicable electrical and North Carolina State Building Code requirements.
(Ord. No. 2024-15, 11-5-24)

3.11 Common signage plan.

   A.   Applicability.
      1.   Except as listed below, the owners or developers of two (2) or more contiguous lots, a non-residential or mixed-use complex, or any multi-tenant use shall submit a common signage plan for approval as part of the site plan application. Other applicants may voluntarily submit a common signage plan in accordance with the standards of this section. Such developments may increase the amount of signage otherwise permitted by a maximum amount of twenty-five percent (25%) after approval of the common signage plan.
      2.   Applications for temporary sign permits shall not be required to submit an approved common signage plan.
   B.   Application Requirements.
      1.   The elements of a common signage plan. The applicant shall indicate the standards of consistency of all signs on the subject property with regard to:
         a.   Colors: a maximum of four, including white, may be used. Federal and state registered trademarks may be employed in addition to the specified colors, but may not exceed twelve (12) square feet in copy area.
         b.   Letter/graphics style.
         c.   Location of each sign.
         d.   Materials used in sign construction.
         e.   Maximum dimensions and proportion.
         f.   Limitation in number of free-standing signs to one (1) per street frontage.
         g.   Other restrictions imposed by the applicant.
      2.   Where an application for site plan review is also required, the common signage plan shall be submitted concurrently with the site plan (see Section 3.14, Site Plans).
   C.   Action by Administrator.
      1.   Following completion of the technical review, the Administrator or designee shall approve the common signage plan provided the plan meets all requirements of this section.
      2.   The Administrator or designee may allow modifications to the lettering style to accommodate state and federally registered trademarks (logos) if the Administrator or designee feels that the intent of the common signage plan requirements is maintained. In allowing modifications, the Administrator or designee may limit the logo size. The requirements of a common signage plan shall apply to all tenants within a related project, even if the properties have been subdivided.
   D.   Revisions and Amendments.
      1.   Revisions or amendments to the common signage plan shall require documentation from all tenants on the property prior to approval.
      2.   It shall be the responsibility of the applicant and/or property owner to enforce the terms of the common signage plan, and a current copy of such plan, including any amendments, must be kept on file in the Planning Department.
   E.   Existing Signs Not Conforming to Common Signage Plan. If any new or amended common signage plan is filed for a property on which existing signs are located, it shall include a schedule for bringing into conformance, within three (3) years, all signs not conforming to the proposed amended plan or to the requirements of this Ordinance in effect on the date of submission.
   F.   Binding Effect. After approval of a common signage plan, no sign shall be erected, placed, painted, or maintained, except in conformance with such plan, and such plan may be enforced in the same way as any provisions of this Ordinance. In case of any conflict between the provisions of such a plan and any other provision of this Ordinance, this Section shall control.
(Ord. No. 2024-15, 11-5-24)

3.12 Written interpretation.

   A.    Applicability. When uncertainty exists, the Administrator or designee, after consultation with other involved staff and the Town Attorney, shall be authorized to make all interpretations concerning the provisions of this Ordinance.
   B.   Action by Administrator.
      1.   The Administrator shall review and evaluate the request in light of the text of this Ordinance, the Zoning Map, the adopted plans and policies of the Town and any other relevant information;
      2.   Following completion of the technical review period, the Administrator shall render an opinion;
      3.   The interpretation shall be provided to the applicant in writing.
   C.   Official Record. The Administrator shall maintain an official record of all interpretations. The record of interpretations shall be available for public inspection during normal business hours.
(Ord. No. 2024-15, 11-5-24)

3.13 Subdivisions.

   Please refer to the Town of Surf City Subdivision Ordinance for rules and procedures regarding the subdivision process. All subdivision development must comply with the underlying zoning district and regulations of the Land Use Code.
(Ord. No. 2024-15, 11-5-24)

3.14 Site plans.

   A.   Applicability.
      1.   All proposed development, except for dwelling units on individual lots (single- family detached, cluster subdivision, single-family attached, duplexes, triplexes, and quads), shall be subject to the site plan review process.
      2.   Temporary uses may require site plan review (see Section 3.9, Temporary Use Permit).
   B.   Site Plan Types. A site plan is a development plan prepared to scale, showing accurately and with complete dimensions, the boundaries of the site and the location of all buildings, streets, uses, and principal site development features proposed for a specific parcel of land. There are two (2) types of site plans with differing levels of approval required for each. The criteria for establishing which type of site plan and the corresponding level of approval for each are indicated below.
      1.   Minor Site Plans. The following shall be reviewed as a minor site plan:
         a.   Parking lot expansions where there is no increase in excess of five percent (5%) of floor area of the principal structure;
         b.   Accessory uses in commercial districts involving structures less than five hundred (500) square feet; and
         c.   Amenity facilities, park and open area uses in approved subdivisions.
         d.   Projects listed below shall also be reviewed as a minor site plan provided they do not require a traffic impact analysis in accordance with Section 3.16, Traffic Impact Analysis; do not require modification of the standards established in this Ordinance other than those which the Administrator or designee may modify administratively; and do not involve the issuance of a special use permit.
            (1)   Developments of less than 20,000 square feet of building for nonresidential uses;
            (2)   Multi-family developments containing less than forty (40) units; and,
            (3)   Expansion of an existing conforming structure or expansion of a previously approved site plan by five percent (5%) or less in floor area or number of units.
      2.   Major Site Plans. The following shall be reviewed as a major site plan:
         a.   Any development requiring site plan review not listed above as a minor site plan shall be considered a major site plan.
         b.   Any project, not considered a subdivision, requiring a Traffic Impact Analysis.
         c.   Any project, not considered a subdivision, requiring a Special Use Permit.
   C.    Plan Review Procedures:
 
      1.    Minor Site Plan.
         a.    Action by Administrator .
            (1)    Upo n sub mis sion of a com plet ed app lication, the Administrator shall schedule the minor site plan for review by the Technical Review Committee. The Technical Review Committee shall review the minor site plan for consistency with the requirements of this Ordinance.
            (2)   After technical review, the Administrator shall determine whether the minor site plan conforms to the requirements of this Ordinance.
      2.   Major Site Plan Review.
         a.   Action by Administrator.
            (1)   Upon submission of a completed application, the Administrator or designee shall schedule the major site plan for review by the Technical Review Committee. The Technical Review Committee shall review the major site plan for consistency with the requirements of this Ordinance.
            (2)   Upon completion of the technical review, the Administrator or designee shall prepare a report that reviews the application in light of comments provided by the Technical Review Committee, and in light of the adopted plans and policies of the Town and the general requirements of this Ordinance. The report, site plan and any related application materials shall be forwarded to the Planning Board for recommendation. After Planning Board review, the project shall then be reviewed by the Town Council for final approval.
         b.   Action by Town Council.
            (1)   After considering the Administrator's comments and Planning Board's recommendation, the Town Council shall approve or disapprove the major site plan, with or without conditions, or send the site plan back to the Technical Review Committee for additional consideration.
             (2)   Major site plans requiring revisions shall be returned to the Town Council within ninety (90) days or the application shall be considered withdrawn. One extension period may be granted by the Town Council.
      3.   Approval Criteria. In approving a site plan, the Administrator, TRC, the Planning Board, and Town Council shall consider the compliance with the ordinance. The Board shall note that this is a legislative proceeding and as such, there shall be no subjective considerations. If the application meets the requirements of the ordinance, the Board must approve the Site Plan.
         a.   Period of Validity. An approved site plan shall expire two (2) years from the date of approval unless the proposed development is pursued as set forth below:
            (1)   A complete building permit application has been submitted and remains valid;
            (2)   Where more than one building is to be built, the applicant may submit a series of building permit applications. The first application shall be submitted within two (2) years from the date that site plan approval is granted. Each subsequent application shall be submitted within one hundred eighty (180) days from the date of issuance of a certificate of occupancy for the previous building; or
            (3)   If no building permit is required, a certificate of occupancy has been issued.
         b.   Building Permit/Certificate of Occupancy.
            (1)   No building permit or certificate of occupancy shall be issued until the required site plan of the proposed use or development has been approved by the appropriate Town officials.
            (2)   In order to secure a vested right for a site plan, the applicant must submit a site-specific development plan, or request the Board approve said site plan as a site specific development plan.
   D.   Dedication and Improvements.
      1.   In the development of any property for which a site plan is required in this section, the applicant shall be required to dedicate any additional right-of-way necessary to the width required by the Town for streets adjoining the property, to install curbs and gutters and pave all streets adjoining the property to Town standards, and to install sidewalks in accordance with the policies and requirements of Section 7.9.
      2.   The applicant shall bear the costs of the installation of all on-site improvements as required by this Section, including provision for surface drainage, pavement, landscaping, and utilities. Any applicant required to install or construct off-site improvements pursuant to this section may, with the approval of the Administrator as a condition of site plan approval, and upon a determination by the Administrator that such improvements are not necessary or desirable at the time, but will be needed in the future, make a payment in lieu of such improvements or part thereof. The amount of any such payment shall be an amount estimated by the Town to be the actual and total installation and construction costs of such improvements. The amount paid for a given improvement shall be considered total and complete payment for the improvements considered and will preclude any further assessment of the property in the event that the town elects to install such improvements at a later date. Full payment shall be made before any building permit or certificate of occupancy is issued for any use shown on the site plan.
      3.   For all residential and planned developments approved the effective date of this Section, recreation and open space dedication, or payment of fee-in-lieu thereof in accordance with Section 7.1 shall be required.
   E.   Guarantees of Improvements.
      1.   Prior to the approval of any site plan, the applicant shall submit a cost estimate and time schedule for installation of each phase of the site improvements.
      2.   The Town shall require a bond or letter of credit guaranteeing required on-site and off-site improvements. This bond or letter of credit shall be in the amount determined by the Town Manager.
      3.   As each phase of improvements is implemented and inspected by the Town, the bond amount shall be reduced by the costs of the installed improvements.
      4.   In the event that the applicant wishes to occupy any building or any portion of any building prior to the completion of the required site improvements, the bond guaranteeing improvements shall be retained by the Town until the remaining required improvements are completed.
   F.   Inspections of Required Improvements. Inspections of site improvements shall be made by the Administrator or their designee.
(Ord. No. 2024-15, 11-5-24)

3.15 As-builts.

 
   A.   Applicability.
      1.   All subdivision and site plan applications where public improvements have been installed shall submit As-Built Drawings in accordance with the requirements of 3.5 Plan Requirements.
      2.   As-Builts shall be in compliance with the approved site plan or preliminary plat. Any deviations from the Construction Drawings shall be noted on the drawings and approved by the Administrator.
   B.   Action by the Administrator.
      1.   Upon submission of a completed application, the Administrator shall schedule the As-Built drawings for review by the Technical Review Committee. The Technical Review Committee, or portion thereof, shall review the As-Builts for consistency with the requirements of this Ordinance as well as those of the approved site plan or preliminary plat.
      2.   After technical review, the Administrator shall determine whether the As-Builts conform to the requirements of the Zoning and/or Subdivision Ordinance and the approved plan sets.
(Ord. No. 2024-15, 11-5-24)

3.16 Traffic impact analysis.

   A.    Applicability.
      1.   A Traffic Impact Analysis (TIA) may be required to be submitted in conjunction with an application for a planned development, preliminary plat, site plan, or special use permit.
      2.   A TIA shall be required for projects, which can be anticipated to generate at least one hundred (100) vehicle trips at peak hour from the latest edition of the Institute of Transportation Engineers (ITE) Trip Generation Manual.
   B.    Exemptions. The following projects shall not be required to submit a TIA:
      1.   Developments approved prior to the effective date of this Ordinance that have maintained valid planned development master plans, preliminary plats, major site plans or special use permits.
      2.   Redevelopment of any site on which the additional traffic at peak hour represents an increase of less than one hundred (100) trips from the previous development, where the redevelopment is initiated within twelve (12) months of the completion of demolition of the previous project.
   C.    Pre-Submittal Conference.
      1.    All applicants required to submit a TIA shall schedule a pre-submittal conference with the Administrator or designee.
      2.   The Administrator and the Town's consultant, if applicable, shall determine the type and scope of the study during the pre-submittal conference, which may also involve representatives from other agencies or departments.
   D.   Application Requirements. A TIA prepared by a professional engineer licensed in the State of North Carolina shall be submitted in accordance with the requirements of this section. The TIA report must describe the study methodology, the data used, and the study findings and provide recommendations based on the results.
   E.   Definition of Impact Area. The Administrator shall determine the geographic area to be included in a traffic impact analysis. Identification of the points of access and key streets and intersections to be affected by development of the subject parcel shall be required. Traffic recorder and turning movement assessment locations may also have to be determined. The study area shall not extend beyond the point where the project traffic at build-out is less than ten percent of the capacity of the roadway or intersection.
   F.   Consultants.
      1.   The Administrator may require that an independent consultant be hired by the Town to perform the required studies, or to review all or part of a study prepared by the applicant's consultant. The Administrator is authorized to administer the contract for any such consultant.
      2.   The Town shall determine the scope of services to be performed by the independent consultant and receive a cost estimate of such services.
      3.   The applicant shall provide an amount equal to the cost estimate to the Town, which shall deposit the amount in a special account set up for this purpose. Any funds not used shall be returned to the applicant in a timely manner, without interest. If the estimated or actual cost increases during the review from the Town's initial cost estimate, the applicant immediately shall provide an amount equal to the increased cost to the Town, which the Town shall deposit in the special account. The final approval of any application requiring a TIA by the Town shall be contingent upon the full payment of all consultant costs incurred for the analysis.
      4.   The Town may require additional funds for independent review where a decision-making body expands the scope of the required review; the applicant substantially amends the application; additional meetings involving the consultant are requested by the applicant; or the consultant's appearance is requested at public or affected agency meetings beyond those anticipated in the original scope of services.
   G.   Action on Application.
      1.   The Administrator may deny an application if the results of a TIA demonstrate that a proposed development may overburden the Town's street system.
      2.   The Administrator shall deny an application if the traffic impact analysis demonstrates that:
         a.   The projected traffic generated by the project, combined with existing traffic, exceeds the desirable operating level in the TIA study area; or
         b.   The project endangers the public safety.
   H.   Application Modification Based on Traffic Analysis. An applicant may modify an application to minimize the traffic-related effects identified in a traffic impact analysis. Modifications may include:
      1.   A reduction in the projected vehicle trips per day;
      2.   The dedication of additional right-of-way;
      3.   The rerouting of traffic and a proposed access and egress point;
      4.   Participation in the funding of a traffic signal or intersection improvement; and
      5.   Other modification determined to be necessary.
   I.   Appeal of Administrator's Action.
      1.   An applicant may appeal the Administrator's denial to the Town Council.
      2.   The Town Council may approve the traffic impact analysis if the Town Council determines that the:
         a.   Applicant has satisfactorily mitigated adverse traffic effects; or
         b.   Additional traffic from the project has an insignificant effect on the Town's streets.
   J.   Period of Validity. A TIA shall be valid for a specific site for no more than one (1) year, so long as no significant modifications to the study area are made following completion of the study.
(Ord. No. 2024-15, 11-5-24)

3.17 Text amendment.

   A.    Applicability. Amendments to the text of this Ordinance shall be made in accordance with the provisions of this section. The Town Council shall consider amendments to the text of this Ordinance, as may be required from time to time.
   B.   Initiation of Amendment. A request to amend the text of this Ordinance may be initiated by the Town Council, Board of Adjustment, Planning Board, Administrator, or the general public.
   C.   Action by Administrator.
      1.    The Administrator shall draft the appropriate amendment and prepare a staff report that reviews the proposed text amendment request.
      2.   Following completion of technical review by staff, the Administrator shall forward the completed request and any related materials to the Planning Board for a recommendation.
   D.   Action by Planning Board.
      1.   The Planning Board shall make a recommendation on the application to the Town Council. If the Planning Board fails to make a recommendation, the Town Council may process the request without a recommendation.
      2.   Plan consistency. When conducting a review of proposed map amendment pursuant to this section, the planning board shall advise and comment on whether the proposed action is consistent with any comprehensive plan or future land use plan that has been adopted and any other officially adopted plan that is applicable. The Planning Board shall provide a written recommendation to the Town Council that addresses plan consistency. 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.
      3.   Following Planning Board review, the Administrator or designee shall forward the completed request and any related materials, including the Planning Board recommendation (if applicable), to the Town Council for final action.
   E.   Action by Town Council.
      1.   Before taking action on a text amendment, the Town Council shall consider the recommendations of the Planning Board and Administrator or designee.
      2.   Following the legislative hearing, the Town Council may approve the amendment, deny the amendment, or send the amendment back to the Planning Board for additional consideration.
      3.   Concurrently with adopting, denying, or remanding any text amendment, the Town Council shall adopt a statement describing whether its action is consistent or inconsistent with the adopted plans and polices of the Town and explaining why the Town Council considers the action taken to be reasonable and in the public interest. The requirement may also be met by a clear indication in the minutes of the Town Council that the Town Council was aware of and considered the planning board's recommendations and any relevant portions of the comprehensive plan.
   F.   Approval Criteria.
      1.   In evaluating any proposed amendment of the text of this Ordinance, the Planning Board and the Town Council shall consider the following:
         a.   The extent to which the proposed text amendment is consistent with the remainder of the Ordinance, including, specifically, any purpose and intent statements;
         b.   The extent to which the proposed text amendment represents a new idea not considered in the existing Ordinance, or represents a revision necessitated by changing circumstances over time;
         c.   Whether or not the proposed text amendment corrects an error in the Ordinance; and
         d.   Whether or not the proposed text amendment revises the Ordinance to comply with state or federal statutes or case law.
      2.   In deciding whether to adopt a proposed text amendment to this Ordinance, the central issue before the Town Council is whether the proposed amendment advances the public health, safety or welfare and is consistent with the adopted plans and policies of the Town and the specific intent of this Ordinance.

3.18 Rezoning/map amendments.

   A.    Applicability.
      1.    Amendments to the Zoning Map shall be made in accordance with the provisions of this Section.
      2.    Rezonings should correspond with the boundary lines of existing platted lots or parcels. Where the boundaries of a rezoning request stop short of an exterior property line, it must be possible to subdivide and develop that portion of the property outside the proposed rezoning boundary in accordance with the existing zoning and other requirements of this Ordinance.
      3.    All zoning requirements shall be met within the boundaries of the area being rezoned. If all of the requirements cannot be met on the site being rezoned, prior to advertisement of the public hearing, the rezoning shall be expanded to include all property necessary to meet zoning requirements.
   B.   Initiation of Amendment.
      1.   The Town Council, any Town agency, or any resident or landowner within the land use jurisdiction of the Town may initiate a rezoning, except that no amendment to a zoning regulation or a zoning map that down-zones property shall be initiated nor enforceable without the written consent of all property owners subject to the amendment unless initiated by the Town. For purposes of this section, "down-zoning" means a zoning ordinance that affects an area of land in one of the following ways:
         a.   By decreasing the development density of the land to be less dense than was allowed under its previous usage.
         b.   By reducing the permitted uses of the land that are specified in a zoning ordinance or land development regulation to fewer uses than were allowed under its previous usage."
      2.   Citizen Comment. If any resident or property owner in the Town submits a written statement regarding a proposed amendment, modification, or repeal to zoning regulation, including a map amendment that has been properly initiated as provided in 160D-601, to the clerk to the Council at least two (2) business days prior to the proposed vote on such change, the clerk to the Council shall deliver such written statement to the Town Council.
   C.   Review Process.
      1.   Prior to Administrator review, the Applicant shall conduct a Neighborhood Meeting in accordance with the requirements of Section 3.3.
      2.   Action by Administrator.
         a.   The Administrator shall prepare a staff report that reviews the rezoning request in light of the adopted plans and policies of the Town and the general requirements of this Ordinance.
         b.   Following completion of technical review by staff, the Administrator shall forward the completed request and any related materials to the Planning Board.
      3.   Action by Planning Board.
         a.   All proposed amendments to zoning map shall be submitted to the Planning Board for review and comment. If no written report is received from the planning board within thirty (30) days of referral of the amendment to that board, the Town Council may act on the amendment without the planning board report. The Town Council is not bound by the recommendations, if any, of the planning board.
         b.   Plan consistency.
            (1)   When conducting a review of proposed map amendment pursuant to this section, the planning board shall advise and comment on whether the proposed action is consistent with any comprehensive plan or future land use plan that has been adopted and any other officially adopted plan that is applicable. The Planning Board shall provide a written recommendation to the Town Council that addresses plan consistency.
            (2)   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.
            (3)   If a zoning map amendment qualifies as a "large-scale rezoning" under G.S. 160D-602(b), the planning board 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 recommendation made.
            (4)   The review and comment required of the Planning Board by this section shall not be assigned to the Town Council and must always be performed by a separate board, even if the Town Council is acting on behalf of the Planning Board.
         c.   Following Planning Board review, the Administrator shall forward the completed rezoning request and any related materials, including the Planning Board recommendation (if applicable), to the Town Council for final action
      4.   Action by the Town Council.
         a.   Before taking action on a rezoning, the Town Council shall consider the recommendations of the Planning Board and Administrator.
         b.   Following the legislative hearing, the Town Council may approve the rezoning, deny the rezoning, or send the rezoning back to the Planning Board for additional consideration.
         c.   Concurrently with adopting, denying, or remanding any rezoning, the Town Council shall adopt a statement describing whether its action is consistent or inconsistent with the adopted plans and polices of the Town and explaining why the Town Council considers the action taken to be reasonable and in the public interest. The requirement may also be met by a clear indication in the minutes of the Town Council that the Town Council was aware of and considered the planning board's recommendations and any relevant portions of the comprehensive plan.
            (1)   If a zoning map amendment is adopted and the action was deemed inconsistent with the 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.
            (2)   A comprehensive plan amendment and a zoning amendment may be considered concurrently.
            (3)   The comprehensive plan consistency statement is not subject to judicial review.
            (4)   If a zoning map amendment qualifies as a "large-scale rezoning" under G.S. 160D-602(b), the Council's 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.
            (5)   Additional Reasonableness Statement for Rezonings. 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:
               (a)   The size, physical conditions, and other attributes of the area proposed to be rezoned;
               (b)   The benefits and detriments to the landowners, the neighbors, and the surrounding community;
               (c)   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;
               (d)   Why the action is taken is in the public interest; and
               (e)   Any changed conditions warranting the amendment.
               (f)   If a zoning map amendment qualifies as a "large-scale rezoning" under G.S. 160D-602(b), the Town Council's statement on reasonableness may address the overall rezoning.
            (6)   Single Statement Permissible. The statement of reasonableness and the plan consistency statement required by this section may be approved as a single statement.

3.19 Conditional zoning and planned unit development (PUD).

   A.    Applicability.
      1.    Development in a conditional zoning district shall be subject to all the use and development standards and requirements that apply to development in the parallel general zoning district, plus any conditions imposed as part of the conditional zoning approval.
      2.   The purpose of this section is to provide a uniform means for amending the Official Zoning Map to establish a conditional zoning district.
      3.    There are two types of Conditional Districts.
         a.    Type 1 - Base District Conditional Zoning (-CZ). This conditional zoning district is equivalent to its corresponding general use (base) zoning district, except as limited or expanded by the additional conditions that the applicant and the Town mutually agree are necessary to ensure compatibility between land uses, conformance to adopted plans, and/or mitigation of expected development impacts.
         b.   Type 2 - Planned Unit Development (PUD). This zoning district is similar to a Planned Development in that the uses and design guidelines are set by the applicant and the Town with no direct correspondence to an existing district. Conditions that the applicant and the Town mutually agree upon ensure compatibility between land uses, conformance to adopted plans, and/or mitigation of expected development impacts.
      4.   Applications for a conditional rezoning shall include all the land area within a recorded lot or site that is the subject of the application. Conditional rezoning applications may not establish split zoning classifications where only a portion of a lot or site is subject to a particular conditional zoning district classification.
   B.   Type 2 Planed Development Conditional District Criteria.
      1.   Rezoning Criteria. In approving a rezoning for a planned development conditional zoning, the Town Council shall find the Planned Development Master Plan to comply with the general standards for planned development in this section and the specific standards for the proposed planned development listed below.
      2.   Planned Development Master Plan. The development proposed in the Master Plan is compatible with the character of surrounding land uses and maintains and enhances the value of surrounding properties. The Master Plan shall be prepared by a professionally certified landscape architect, engineer or architect.
      3.   Design Guidelines and Dimensional Standards. The planned development shall provide a comprehensive set of design guidelines (lot areas, setbacks, density, architectural features, etc.) that demonstrate the project will be appropriate within the context of the surrounding properties and the larger community. All bulk, area and dimensional standards shall be established by the Town Council at the time of approval.
      4.   Development Standards. The development standards specified in Section 5, shall apply, unless alternatives meeting the intensity and intent of the regulations is proposed and accepted by the Town Council as a portion of the Conditions.
      5.   Resource Conservation Areas.
         a.   No resource conservation area shall be counted towards the requirements for minimum lot area.
         b.   Only fifty percent (50%) of the resource conservation area shall be counted towards the recreation and open space requirements (see Subsection 6, below).
      6.   Recreation and Open Space. The planned development master plan shall meet or exceed the recreation and open space requirements of Section 7.1.
      7.   Stormwater Management. The planned development master plan shall contain a comprehensive stormwater management plan prepared by a professional engineer licensed in the State of North Carolina.
      8.   Phasing. If development is proposed to occur in phases, the planned development master plan shall include a phasing plan for the development, and if appropriate, with specific build-out dates. Guarantees shall be provided that project improvements and amenities that are necessary and desirable for residents and tenants of the project, or that are of benefit to the Town, are constructed with the first phase of the project, or, if this is not possible, then as early in the project as is technically feasible.
      9.   Minimum Requirements. The minimum tract of land for rezoning is two (2) contiguous acres.
      10.   Permitted Uses. The mix of uses shall be established by the Town Council at the time of approval.
      11.   Project Boundary Buffer. A project boundary buffer shall be provided. The width and planting requirements shall be determined in the Master Plan.
   C.   Application Submittal and Review.
      1.   Conditional rezoning applications may only be initiated by the landowner(s) of the land subject to the application, or their authorized agents.
      2.   All conditions of approval proposed by the applicant must be included with the conditional rezoning application.
      3.   Conditional rezoning applications shall include a site plan or concept plan depicting the proposed development configuration that shall be reviewed by the TRC prior to the public hearing.
      4.   Action by Administrator.
         a.   Upon submission of a completed application, the Administrator shall schedule the conditional rezoning for review by the Technical Review Committee. The Technical Review Committee shall review the conditional rezoning for consistency with the requirements of this Ordinance.
         b.   Upon completion of the technical review for a conditional rezoning, the Administrator shall prepare a report that reviews the application in light of comments provided by the Technical Review Committee, in light of the adopted plans and policies of the Town, and the general requirements of this Ordinance. The report, site plan and any related application materials shall be forwarded to the Planning Board.
      5.   Action by Planning Board.
         a.   The Planning Board shall make a recommendation on the application to the Town Council. The Planning Board's recommendation shall include a written statement to the Town Council describing whether its recommendation is consistent with the adopted plans and policies of the Town, and reasonable and in the public's interest. During its review of a conditional rezoning application, the Planning Board may suggest revisions to the proposed conditions (including the concept plan), consistent with the provisions of Section 3.19.C.9, Conditions of Approval. Only those revisions agreed to in writing by the applicant shall be incorporated into the application.
         b.   Following Planning Board review, the Administrator shall forward the completed conditional rezoning request and any related materials, including the Planning Board recommendation, to the Town Council for final action.
      6.   Action by Town Council.
         a.   Before taking action on a conditional rezoning, the Town Council shall consider the recommendations of the Planning Board and Administrator.
         b.   After the conclusion of the Public Hearing, the Town Council may approve the conditional rezoning as proposed, approve revised conditional rezoning, deny the conditional rezoning, or send the conditional rezoning back to the Planning Board for additional consideration.
         c.   Concurrently with adopting, denying, or remanding any rezoning, the Town Council shall adopt a statement describing whether its action is consistent with the adopted plans and policies of the Town and explaining why the Town Council considers the action taken to be reasonable and in the public interest.
      7.   Designation of Official Zoning Map. The Administrator shall make changes to the Official Zoning Map promptly after approval of a conditional rezoning application by the Town Council.
      8.   Conditional Zoning Review Standards. The advisability of a conditional zoning is a matter committed to the legislative discretion of the Town Council and is not controlled by any one factor. In determining whether to approve or deny a conditional zoning, the Town Council shall weigh the relevance of and consider the following:
         a.   Whether the proposed conditional rezoning advances the public health, safety, or welfare;
         b.   Whether and the extent to which the proposed conditional rezoning is appropriate for its proposed location, and is consistent with the purposes, goals, objectives, and policies of the Town's adopted policy guidance;
         c.   Whether an approval of the conditional rezoning is reasonable and in the public interest;
         d.   Whether and the extent to which the concept plan associated with the conditional rezoning is consistent with this ordinance; and
         e.   Any other factors as the Town Council may determine to be relevant.
      9.   Conditions of Approval.
         a.   Only conditions mutually agreed to by the owner(s) of the property that is the subject of a conditional zoning district designation and the Town Council may be approved as part of a conditional rezoning application establishing a conditional zoning district.
         b.   Conditions shall be limited to those that address conformance of development and use of the site with Town regulations and adopted plans and that address the impacts reasonably expected to be generated by the development or use of the site.
         c.   Conditions shall be in writing and may be supplemented with text or plans and maps.
         d.   Unless subject to an approved condition, all requirements of a corresponding general zoning district shall apply to a conditional zoning district.
      10.   Effect.
         a.   Lands subject to a conditional rezoning shall be subject to all the standards, conditions, and plans approved as part of that application. These standards, plans, and approved conditions are perpetually binding on the land as an amendment to this ordinance and the Official Zoning Map and may only be changed in accordance with the procedure for zoning map amendment, conditional zoning, or planned development.
         b.   No permit or development approval shall be issued for development subject to a conditional zoning district except in accordance with the approved conditions and an accompanying conditional zoning plan (if submitted).
(Ord. No. 2024-15, 11-5-24)

3.20 Developer agreements.

   A.   Authorization. As authorized by G.S. 160D-1001, the Town may enter into development agreements with developers subject to the procedures of that Ordinance and the established procedures and requirements included below.
   B.   General.
      1.   The Town may not exercise any authority, make any commitment, or impose any tax or fee not authorized by law.
      2.   A development agreement shall not exempt the property owner or developer from compliance with the State Building Code or State or local housing codes that are not part of the local government's development regulations.
      3.   Development shall comply with all applicable laws, including all ordinances, resolutions, regulations, permits, policies, and laws affecting the development of the property, including permitted uses, density, intensity, design, and improvements.
   C.   Hearing. A development agreement must be approved by the Town Council following a legislative hearing on the proposed agreement. Notice of the hearing shall be made in accordance with Section 3.4 of this Section. The notice must specify the location of the property subject to the development agreement, the development uses proposed on the property, and must specify a place where a copy of the proposed development agreement can be obtained.
   D.   Agreement Incorporated into ordinance.
      1.   Further, the development agreement may, by ordinance, be incorporated, in whole or in part, into any development regulation adopted by the Town.
      2.   A development agreement may be considered concurrently with a zoning map or text amendment affecting the property and development subject to the development agreement.
      3.   A development agreement may be concurrently considered with and incorporated by reference with a plan or preliminary plat required under a subdivision or zoning regulation.
      4.   If incorporated into a conditional district, the provisions of the development agreement shall be treated as a development regulation in the event of the developer's bankruptcy.
   E.   Contents.
      1.   A development agreement shall, at a minimum, include subsections a. though g. below. Items contained in subsections h. through j. below are at the discretion of the Town Council for the specific development:
         a.    A description of the property subject to the agreement and the names of its legal and equitable property owners.
         b.    The duration of the agreement. However, the parties may enter into subsequent development agreements that may extend the original duration period. Any action requiring an extension shall be requested prior to the actual expiration date to ensure there is no lapse in coverage.
         c.    The development uses permitted on the property, including densities and building types, intensities, placement on the site, and design.
         d.   A description of public facilities that will serve the development, including who provides the facilities, the date any new public facilities, if needed, will be constructed, and a schedule to assure public facilities are available concurrent with the impacts of the development. In the event that the development agreement provides that the Town shall provide certain public facilities, the development agreement shall provide that the delivery date of such public facilities will be tied to a successful performance by the developer in implementing the proposed development, such as meeting defined completion percentages or other performance standards.
         e.   A description, where appropriate, of any reservation or dedication of land for public purposes and any provisions, agreed to by the developer that exceeds existing laws related to the protection of environmentally sensitive property.
         f.   A description, where appropriate, of any conditions, terms, restrictions, or other requirements for the protection of public health, safety, or welfare.
         g.   A description, where appropriate, of any provisions for the preservation and restoration of historic structures.
         h.   A development schedule, including start dates and interim completion, dates at no greater than five (5) year intervals. Modifications to dates may be requested by the developer.
         i.   If another government entity is made a party to the agreement, the agreement must specify which government body is responsible for the overall administration of the development agreement. A local or regional utility authority may also be made a party to the development agreement.
         j.   Performance guarantees shall be in accordance with G.S. 160D-804.1.
(Ord. No. 2024-15, 11-5-24)

3.21 Special use permit.

   Special uses are land uses that are generally compatible with the land uses permitted by right in a zoning district, but require individual review of their location, design, and configuration so as to evaluate the potential for adverse impacts on adjacent property and uses. Special uses ensure the appropriateness of the use at a particular location within a given zoning district.
   A.   Applicability. A special use permit shall be required for all special uses as set forth in the Permitted Land Use Table (Section 5.4). A development comprised of uses regulated by separate rows on the table shall be reviewed using the most restrictive process from among the proposed uses.
   B.   Action by the Administrator.
      1.   Upon submission of a completed application, the Administrator shall schedule the site plan for review by the Technical Review Committee. The Technical Review Committee shall review the site plan for consistency with the requirements of this Ordinance.
      2.   Upon completion of the technical review, the Administrator shall prepare a report that reviews the application in light of comments provided by the Technical Review Committee, in light of the adopted plans and policies of the Town, and the general requirements of this Ordinance. The report, site plan and any related application materials shall be forwarded to the Town Council.
   C.   Review Process.
      1.   Board Hearing and Decision. The Town Council shall hold an evidentiary hearing. The applicant and other property owners likely to be materially affected by the application shall be given an opportunity to be heard. Upon reviewing all of the pertinent information, the Board may approve, deny or approve with conditions the Special Use Permit by a majority vote.
      2.   Conditions. The Town Council may place conditions on the use as part of the approval to assure that mitigation measures are associated with the use. The conditions shall become part of the Special Use Permit approval and shall be included in the final site plan application. However, the Board must not impose conditions on special use permits that the Town does not otherwise have the statutory authority to impose. Further, there must be written consent by the applicant to the related conditions.
      3.   Findings of Fact. In addition to determining that the application meets all other requirements of this ordinance, the Town Council must find the following in order to grant approval of a Special Use Permit:
         a.   The proposed special use conforms to the character of the neighborhood, considering the location, type, and height of buildings or structures and the type and extent of the landscaping on the site.
         b.   The proposed use will not cause undue traffic congestion or create a traffic hazard.
         c.   Adequate utilities (water, sewer, drainage, electric, etc.) are available for the proposed use.
         d.   The proposed use shall not be noxious or offensive by reason of vibration, noise, odor, dust, smoke, or gas.
         e.   The establishment of the proposed use shall not impede the orderly development and improvement of the surrounding property.
         f.   The establishment, maintenance, or operation of the proposed use shall not be detrimental to or endanger the public health, safety, or general welfare.
         g.   The proposed use will not substantially injure the value of adjoining or abutting property. or, in the alternative, the use is a public necessity.
         h.   The proposed use is consistent with the officially adopted plans and policies of the town, including any specific use standards, specifications, and other requirements of this Code or the Town Code of Ordinances.
   D.   Effect of Decision.
      1.   If the Town Council votes to deny an application, there may be no subsequent application for the same or similar use submitted by any party for any part of the subject property until twelve (12) months have elapsed from the date of denial. If the Town Council votes to approve an application, the permit shall be recorded in the County Register of Deeds office.
      2.   The special use permit and additional conditions, if applicable, shall run with the land and shall be binding on the original applicant as well as any successors, assigns, and heirs. Any decision by the Town Council may be appealed within thirty (30) days of the decision in accordance with G.S. 160D-405.
   E.   Coordination with Rezoning. An application for a major special use permit may be reviewed concurrently with a rezoning application. However, a decision shall be rendered first for any rezoning and then subsequently for any major special use permit.
(Ord. No. 2024-15, 11-5-24)ÿ

3.22 Variance.

   The variance process administered by the Board of Adjustment is intended to provide limited relief from the requirements of this ordinance in those cases where strict application of a particular requirement will create a practical difficulty or unnecessary hardship prohibiting the use of the land in a manner otherwise allowed under this ordinance. However, in no event shall the Board of Adjustment grant a variance that would conflict with any state code, would allow the establishment of use that is not otherwise allowed in a particular zoning district, or which would change the zoning district classification or the district boundary of the property in question.
   A.   Application Procedure. An application for a variance may be filed by the owner of the property or by an agent specifically authorized by the owner to file such an application. Staff shall review an application for a variance to determine if it is complete. If an application is complete, the Administrator or designated staff shall schedule the matter for consideration at a meeting of the Board of Adjustment. The Administrator or designee shall prepare a staff report regarding the submitted variance application.
   B.   Review Process.
      1.   Upon receipt of the request for a variance from the Administrator or designee, the Board of Adjustment shall hold a public, evidentiary hearing on the request.
      2.   After conducting the hearing and within forty-five (45) days, the Board of Adjustment may: deny the application; conduct an additional public hearing on the application; approve the application; or approve the application with additional conditions. A concurring vote of four-fifths (4/5) of the members of the Board of Adjustment shall be necessary to grant a variance.
      3.   Conditions. In granting any variance, the Board of Adjustment may attach such conditions to the approval as it deems necessary and appropriate to satisfy the purposes and objectives of this ordinance. The Board of Adjustment may also attach conditions in order to reduce or minimize any injurious effect of such variance upon other property in the neighborhood and to ensure compliance with other terms of this ordinance. Such conditions and safeguards must be reasonably related to the condition or circumstance that gives rise to the need for a variance.
      4.   Any approval or denial of the request shall be accompanied by written findings of fact supporting the conclusion that the variance meets or does not meet each of the standards set forth below in Subsection C.
    C.   Required Findings. The Board of Adjustment shall not grant a variance unless and until it makes all of the following findings:
      1.   Carrying out the strict letter of the ordinance would result in unnecessary hardship. It shall not be necessary to demonstrate that, in the absence of the variance, no reasonable use can be made of the property.
      2.   The hardship results from conditions that are peculiar to the property, such as location, size, or topography. Hardships resulting from personal circumstances, as well as hardships resulting from conditions that are common to the neighborhood or the general public, may not be the basis for granting a variance. 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.
      3.   The hardship did not result from actions taken by the applicant of the property owner. The act of purchasing property with the knowledge that circumstances exist that may justify the granting of a variance shall not be regarded as a self-created hardship.
      4.   The requested variance is consistent with the spirit, purpose, and intent of this ordinance, such that public safety is secured, and substantial justice is achieved.
      5.   The variance is in harmony with the general purpose and intent of the ordinance and preserves its spirit. That is, the applicant is not seeking to establish, or expand, or extend a nonconforming use. Moreover, the existence of a nonconforming use is the same or in any other zoning district shall not constitute a reason for granting the requested variance.
(Ord. No. 2024-15, 11-5-24)

3.23 Administrative appeals.

   The following is established to provide an appeal process for parties aggrieved by an order, requirement, decision, or determination made by the Administrator or designee charged with enforcing the specific provision of the ordinance.
   A.   Application Procedure. An appeal of an administrative decision may be taken by any person who has standing under G.S. 160D-1402(c) or by the Town, to the Board of Adjustment. Such an appeal shall be made within thirty (30) days of the receipt of the written notice of decision from the Administrator or designee, or of the filing of the written notice with the Town Clerk. If notice is sent via first-class mail, it is deemed received on the third business day following the deposit of the notice, for mailing with the United States Postal Service. A complete application, as required by the Town of Surf City shall be submitted for an appeal.
   B.   Stay of Proceedings. The filing of an appeal shall stay enforcement of the action appealed from and accrual of any fines assessed during the length time of the appeal to the board of adjustment and any subsequent appeal in accordance with G.S. 160D-1402 or during the length of time of any civil proceeding authorized by law or appeals therefrom unless the Administrator or designee certifies that, in their opinion, by reason of facts stated in the certification, such a stay would cause imminent peril to life and property. In such a case, proceedings shall not be stayed except by restraining order or preliminary injunction granted by the Superior Court of Pender County in accordance with Rule 65 of the North Carolina Rules of Civil Procedure.
   C.   Required Appeal Application Information. Upon submission of a complete application, containing such relevant information as may reasonably allow the Board of Adjustment to understand the basis for the applicant's appeal, the Administrator or designee shall similarly prepare a report detailing the regulations and interpretation behind the matter being appealed and their reason for their decision.
   D.   Review Process.
      1.   Upon receiving the application and being deemed complete, the Administrator or designated staff for the Board of Adjustment shall schedule a public, evidentiary hearing on the appeal. The applicant, the local government, and any person who would have the standing to appeal the decision under G.S. 160D-1402(c) shall have the right to participate as a party at the evidentiary hearing. Refer to Section 3.6 for hearing procedures.
      2.   After conducting the public hearing, the Board of Adjustment shall adopt an order reversing or affirming, wholly or in part, or modifying the order requirements, decision, or determination in question. It shall take a simple majority vote of the Board of Adjustment to reverse or modify the contested action.
      3.   The Board of Adjustment, in making its ruling, shall have all the powers of the Administrator or designee from whom the appeal is taken, and may issue or direct the issuance of a permit.
      4.   The decision of the Board of Adjustment must be in writing and permanently filed in the minutes as a public record. All findings of fact and conclusions of law must be separately stated in final decisions or orders of the Board of Adjustment, which must be delivered to parties of interest by certified mail.
(Ord. No. 2024-15, 11-5-24)

3.24 Modifications to development approvals.

   Occasionally, unanticipated circumstances require changes to approved development plans and permits, including developer agreements and site-specific vesting plans. In accordance with G.S.160D-403(d), the Town of Surf City allows for minor modifications to be administratively approved, however, all major modifications require the same procedures to be followed as were completed for the original approval. This administrative flexibility reduces the need for a full approval process to accommodate a limited change to the plans for a project.
   A.   Major Modifications. Major Modifications are considered significant and require an amendment. Amendments shall be reviewed and considered in accordance with the procedures and standards established for the original approval.
      1.   Any change in land use.
      2.   Any increase in density.
      3.   Any decrease in the amount of open space.
      4.   When there is the introduction of a new vehicular access point to an existing street, road, or thoroughfare not previously designated for access.
      5.   When the total floor area of a commercial or industrial classification is increased more than ten percent (10%) beyond the total floor area last approved by the Town Council.
      6.   A change in the type of proposed dwelling unit (e.g., Single-family detached to Townhouse).
      7.   Change in location of any public easement.
      8.   When the number of existing trees to be preserved decreased more than ten percent (10%) beyond the number of trees shown on the approved plans.
      9.   Any change that would increase traffic beyond the levels projected in the approved Transportation Impact Analysis (TIA).
      10.   Any increase in the stormwater impact beyond what was identified in the approved stormwater analysis for the project.
      11.   Any change which alters the basic development concept of the approval.
      12.   Any net reduction in the area of a buffer or a reduction in the width of more than twenty-five (25%) of the approved width.
      13.   A change in the number of approved phases of any development, or any change in the phasing of proposed improvements, such as utilities, roadways, open space, etc.
      14.   For developer agreements, any change in deadlines or completion dates in excess of three (3) months.
   B.   Minor Modifications. The Administrator or designee is authorized to review and approve administratively a minor modification to an approved Special Use Permit, PUD, Conditional Zoning, Minor or Major Subdivision, Minor or Major Site Plan, or Site-Specific Vesting Plan, subject to the following limitations.
      1.   General Limitations. The minor modification shall meet the following:
         a.   Does not involve a change in the uses permitted or the density of overall development permitted.
         b.   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;
         c.   Does not qualify as a major modification; and,
         d.   Is in compliance with all other ordinance requirements.
      2.   Site Design. Site design minor modifications are limited adjustments to the terms of the design of an approved development plan or plat, including a site plan attached as a condition to conditional zoning or special use permit. In addition to the general limitations for minor modifications, a site design minor modification must:
         a.   Comply with underlying zoning standards and other applicable conditions of the approval;
         b.   Be limited to a minor change such as, without limitation:
            (1)   Changes to the location of or the rearrangement of internal streets, turn lanes, drives, or access restrictions;
            (2)   Changes to the configuration of parking areas, but not the number of parking spaces, unless permitted by Subsection 3.a, below;
            (3)   Changes to the configuration or location of open space or placement of required amenities, provided the amount of open space (whether passive or active) is not decreased;
            (4)   Changes to the configuration of landscape yards, including types of materials, provided minimum width and planting requirements remain;
            (5)   Changes to proposed building elevations or facades, including materials, provided that the change retains the same general architectural character and provided the development still complies with the applicable design requirements;
            (6)   Changes to the arrangement or location of buildings provided there is no increase in the number of buildings, size, or amount of impervious surface.
      3.   Dimensional Standards. Dimensional standard minor modifications are adjustments to the dimensional standards of the Land Use Code. Dimensional standards may only be modified upon a finding by the Administrator or designee, based on evidence from the permit holder, that the modification is needed to address a site characteristic or technical design consideration not known at the time of initial approval. In addition to the general limitations for minor modifications, dimensional standard minor modifications are limited to:
         a.   An adjustment to parking requirements up to the greater of five (5) spaces or ten percent (10%).
         b.   An adjustment to setback requirements up to greater than five (5) feet or twenty-five percent (25%) of the standard setback.
         c.   An adjustment to landscape standards up to twenty percent (20%) of required landscaping.
   C.   Procedure for Minor Modifications.
      1.   Preliminary Plat or Site Plan.
         a.   When minor revisions are proposed to an approved preliminary plat or site plans, the applicant shall submit a written request to the Administrator with a copy sent to the Technical Review Committee delineating the revisions and requesting authorization for administrative revision.
            (1)   The Administrator shall notify the applicant whether the proposed revision qualifies for minor modification and the basis for the determination. If approved, the final plat may be submitted in accordance with the revisions.
            (2)   The Administrator shall distribute copies of the revised plat to the appropriate agencies.
      2.   Final Plat. When minor revisions are proposed to an approved final plat, the applicant shall submit a written request to the Administrator with a copy sent to the Technical Review Committee delineating the revisions and requesting authorization for administrative revision.
         a.   If the plat has been recorded, the applicant shall submit the recorded plat with a statement describing the revisions made and title block for the Administrator signature, and date of signing.
         b.   If the ownership of the subdivision has changed or if any lots have been sold since the previous recording, an owner's and notary's certificates shall be provided on the plat for each current owner.
         c.   In addition to the letter and the revised final plat, the applicant shall submit the required fees to the Administrator for processing and rerecording the revised plat.
         d.   The Administrator shall distribute copies of the recorded final plat to the appropriate agencies.
   D.   Appeals and Variances. A decision on a minor modification may be appealed to the Board of Adjustment as an administrative determination. An application for a minor modification does not preclude an applicant from seeking a variance from the Board of Adjustment.
   E.   Individual Parcels within a Conditional Zoning District. For a conditional zoning district applicable to multiple parcels, the owners of individual parcels may apply for a minor modification or major amendment so long as the change would not result in other properties failing to meet the terms of the conditions. Any approved changes shall only be applicable to those properties whose owners petitioned for the change.
(Ord. No. 2024-15, 11-5-24)

3.25 Nonconforming situations.

   Nonconforming situations that were otherwise lawful on the effective date of this ordinance may be continued, subject to the requirements outlined in this subsection.
   A.   Nonconforming Lots. When a nonconforming lot can be used in conformity with all of the regulations (other than the area or width requirements) applicable to the district in which the lot is located, such a use may be made as of right. Otherwise, the nonconforming lot may be used only in accordance with a special use permit issued by the board of adjustment. The board shall issue such a permit if it finds that 1) the proposed use is one permitted by the regulations applicable to the district in which the property is located, and 2) the property can be developed as proposed without any significant negative impact on the surrounding property or the public health, safety, or welfare. In issuing the permit authorized by this paragraph, the board may allow deviations from applicable dimensional requirements (such as setback lines and yard size minimums) if it finds that no reasonable use of the property can be made without such deviations.
   B.   Extension or Enlargement of Nonconforming Situations.
      1.   Except as specifically provided in this subsection, it shall be unlawful for any person to engage in any activity that causes an increase in the extent of non-conformity of a nonconforming situation.
      2.   Unless otherwise stated in this subsection, a nonconforming use may be extended throughout any portion of a completed building that, when the use was made nonconforming by this ordinance, was manifestly designed or arranged to accommodate such use. However, subject to subsection 7.6 of this section (authorizing the completion of nonconforming projects in certain circumstances), a non-conforming use may not be extended to additional buildings or to land outside the original building.
      3.   Subject to subsection 7.6 of this section (authorizing the completion of nonconforming projects in certain circumstances), a nonconforming use of open land may not be extended to cover more land than was occupied by that use when it became nonconforming.
      4.   The volume, intensity, or frequency of use of property where a nonconforming situation exists may be increased and the equipment or processes used at a location where a nonconforming situation exists may be changed if these or similar changes amount only to changes in the degree of activity rather than changes in kind and no violations of other paragraphs of this subsection occur.
      5.   Physical alteration of structures or the placement of new structures on open land are unlawful if they result in:
         a.   An increase in the total amount of space devoted to a nonconforming use;
         b.   Greater nonconformity with respect to dimensional restrictions such as yard requirements, height limitations, or density requirements; or
         c.   The enclosures of previously unenclosed areas, even though those areas were previously used in connection with the nonconforming activity. An area is unenclosed unless at least seventy-five (75) percent of the perimeter of the area is marked by a permanently constructed wall or fence.
      6.   Minor repairs to and routine maintenance of property where nonconforming situations exist are permitted and encouraged.
      7.   Any structure used for single-family residential purposes and maintained as a nonconforming use may be replaced with a similar structure of a larger size, so long as the replacement does not create new non-conformities with respect to yard size and setback requirements. In particular, a manufactured home may be replaced with a larger manufactured home, and a "single-wide" manufactured home may be replaced with a "double-wide."
      8.   A structure that is conforming in any respect or a structure that is used in a nonconforming manner may be reconstructed or replaced if partially or totally destroyed, subject to the following restrictions:
         a.   Such structure may be restored and occupancy or use allowed if that structure is destroyed or damaged. In order to rebuild a nonconforming structure the permits for repairs or rebuilding must be issued within 12 months;
         b.   The total amount of space devoted to a nonconforming use may not be increased, except that a larger, single-family residential structure may be constructed in place of a smaller one and a larger manufactured home intended for residential use may replace a smaller one;
         c.   The reconstructed building may not be more nonconforming with respect to dimensional restrictions such as yard requirements, height limitations, or density requirements, and such dimensional nonconformity's must be eliminated if that can reasonably be accomplished without unduly burdening the reconstruction process or limiting the right to continue the nonconforming use of such building;
         d.   The reconstructed building may not enclose areas that were previously unenclosed, even though those areas were used in connection with the nonconforming activity. An area is unenclosed unless at least seventy-five (75) percent or more of the perimeter of the area is marked by a permanently constructed wall or fence.
      9.   Manufactured homes in nonconforming manufactured home parks may not be increased in number. Manufactured homes, when nonconforming, may not be substituted for conforming types of dwelling units or other nonconforming dwelling units.
   C.   Change in Nonconforming Use.
      1.   A nonconforming use may be changed to a conforming use. Thereafter, the property may not revert to a nonconforming use.
      2.   Except as specifically provided in this subsection, it shall be unlawful for any person to engage in any activity that causes an increase in the extent of nonconforming situation.
      3.   The Administrator is authorized to approve an Administrative Adjustment to allow a change from one or more nonconforming uses to one or more nonconforming uses that are in the same use category or to another functionally similar use, or to allow a modification or expansion to an existing nonconforming use, provided that the proposed uses do not materially increase the degree of nonconformity, and the uses will have no greater adverse impacts on the surrounding area. To make this determination, the Administrator shall consider, but is not limited to consider, all of the following:
         a.   Anticipated traffic of each use;
         b.   Parking requirements of each use;
         c.   Anticipated number of persons on the premises of each use at a time of peak demand;
         d.   Hours of operation of each use;
         e.   Environmental impacts of each use; and
         f.   Off-site impacts of each use, such as sight distance, visibility, lighting, noise, glare, dust, vibration, or smoke;
      4.   If the Administrator denies the Administrative Adjustment, the Administrator must state, in writing, the reasons for the denial.
   D.   Abandonment and Discontinuance of Nonconforming Situations.
      1.   When a nonconforming use is discontinued for a consecutive period of twelve (12) months, or discontinued for any period of time without a present intention to reinstate the nonconforming use, the property involved may thereafter be used only for conforming purposes.
      2.   If the principal activity on property where a nonconforming use exists is discontinued for a consecutive period of twelve (12) months or discontinued for any period of time without a present intention of resuming that activity, then the property may thereafter be used only in conformity with all of the regulations applicable to the district in which the property is located.
      3.   For purposes of determining whether a right to continue a nonconforming situation is lost pursuant to this subsection, all of the buildings, activities, and operations maintained on a lot are generally to be considered as a whole.
      4.   When a structure or operation made nonconforming by this ordinance is vacant or discontinued at the effective date of this ordinance, the twelve (12) month period, for purposes of this subsection, begins to run at the effective date of the ordinance.
   E.   Completion of Nonconforming Projects. The completion or erection of any nonconforming project may be completed provided all construction is done pursuant to a valid building permit issued prior to the effective date of this ordinance.
   F.   Nonconformities Created by Public Action. When lot area or setbacks are reduced as a result of conveyance to a federal, state or local government for a public purpose and the remaining area is at least seventy-five (75) percent of the required minimum standard for the district in which it is located, then that lot shall be deemed to be in compliance with the minimum lot size and setback standards of this ordinance without the need for a variance from the board of adjustment.
(Ord. No. 2024-15, 11-5-24)

3.26 Vested rights.

   A.   The zoning vested right is a right which is established pursuant to G.S.160D-108 to undertake and complete the development and use of property under the terms and conditions of an approved site-specific vesting plan. Obtaining development approval through the vested rights precludes any action by the Town of Surf City that would change, alter, impair, prevent, diminish, or otherwise delay the development or use of the property allowed by the applicable land development regulation or regulations. As such, amendments in land development regulations are not applicable or enforceable without the written consent of the owner with regard to any of the following:
      1.   Buildings or uses of buildings or land for which a development permit application has been submitted and subsequently issued in accordance with G.S. 143-755.
      2.   Subdivisions of land for which a development permit application authorizing the subdivision have been submitted and subsequently issued in accordance with G.S. 143-755.
      3.   A site-specific vesting plan pursuant to G.S. 160D-108.1 and subsection H, below.
      4.   A multi-phased development pursuant to Subsection D.
      5.   A vested right established by the terms of a development agreement.
   B.   Duration of Vested Rights.
      1.   Upon issuance of a development permit, the vesting granted for a development project is effective upon the filing of the application in accordance with G.S. 143-755, for so long as the permit remains valid. Unless otherwise specified, building permits expire after six (6) months and development permits expire one (1) year after issuance unless work authorized by the permit has substantially commenced.
       2.   Except where a longer vesting period is provided by statute or land development regulation, the vesting granted expires for an uncompleted development project if development work is intentionally and voluntarily discontinued for a period of not less than twenty-four (24) consecutive months. The vesting period for a nonconforming use of property expires if the use is intentionally and voluntarily discontinued for a period of not less than twenty-four (24) consecutive months.
   C.   Multiple Permits. Where multiple development permits are required to complete a development project, the applicant may choose the version of each of the Town's land development regulations applicable to the project, upon submittal of the application for the initial development permit. This provision is applicable only for those subsequent development permit applications filed within eighteen (18) months of the date following the approval of an initial permit.
   D.   Multi-Phased Developments. A multi-phased development is a development containing over twenty-five (25) acres that are both submitted for development approval to occur in more than one phase and subject to a master development plan with committed elements showing the type and intensity of each phase.
      1.   A multi-phased development is vested for the entire development with the land development regulations then in place at the time a site plan approval is granted for the initial phase of the multi-phased development.
      2.   A right that has been vested as provided for herein remains vested for a period of seven (7) years from the time a site plan approval is granted for the initial phase of the multi-phased development.
   E.   Continuing Review. Following the issuance of a development permit, the Town of Surf City may make subsequent inspections and reviews to ensure compliance with the applicable land development regulations in effect at the time of the original approval.
   F.   Process to Claim Vested Right. A person claiming a vested right may submit information to the Administrator, who shall make an initial determination as to the existence of the vested right. The decision of the zoning administrator or officer may be appealed under G.S. 160D-405. On appeal, the existence of a vested right shall be reviewed de novo. In lieu of seeking such a determination or pursuing an appeal under G.S. 160D-405, a person claiming a vested right may bring an original civil action as provided by G.S. 160D-1403.1.
   G.   Runs with the Land. Vested rights run with the land except for the use of land for outdoor advertising governed by G.S. 136-136.1 and G.S. 136-131.2 in which case the rights granted by this section run with the owner of the permit issued by the North Carolina Department of Transportation.
   H.   Site-Specific Vesting Plans.
      1.   A site-specific vesting plan consists of a plan submitted to the Town in which the applicant requests vesting, describing with reasonable certainty on the plan the type and intensity of use for a specific parcel or parcels of property. The development approvals listed below are determined by the Town of Surf City to qualify as site-specific vesting plans.
         a.   Minor Subdivision Preliminary Plat.
         b.   Major Subdivision Preliminary Plat.
         c.   Minor Site Plan.
         d.   Major Site Plan.
         e.   Special Use Permit.
         f.   Planned Unit Development.
         g.   Conditional Zoning.
      2.   A vested right established pursuant to this ordinance shall run for a period of two (2) years from the effective date of the approval of the underlying development application.
      3.   Approval Process for a site-specific vesting plan.
         a.   Each site-specific vesting plan shall include the information required by the Town Council and outlined in this Article for the underlying type of development plan.
         b.   Each site-specific vesting plan shall provide the notice and hearing required for the underlying type of development plan. If the vesting plan is not based on such approval, a legislative hearing as required by G.S.160D-602 shall be held.
         c.   The Town of Surf City may approve a site-specific vesting plan upon any terms and conditions that may reasonably be necessary to protect the public health, safety, and welfare.
         d.   A site-specific vesting plan is deemed approved upon the effective date of the Town Council's decision approving the plan.
         e.   An approved site-specific vesting plan and its conditions may be amended with the approval of the owner and the local government in the same manner as required for the underlying type of development plan. Minor modifications may be approved administratively in accordance with Section 3.24.
      4.   Duration and Termination of a Vested Right.
         a.   A vested right for a site-specific vesting plan remains valid for two (2) years. Upon following the same process as required for the original approval, the Town Council or the Administrator may extend the vesting of a site-specific vesting plan up to three (3) years (with a total length of vesting not to exceed five (5) years) upon finding that:
            (1)   The permit has not yet expired;
            (2)   Conditions have not changed so substantially as to warrant a new application; and,
            (3)   The extension is warranted in light of all other relevant circumstances-including, but not limited to the size and phasing of development, the level of investment, the need for the development, economic cycles, and market conditions or other considerations.
         b.   Upon issuance of a building permit, the provisions of G.S. 160D-1111 and G.S. 160D-1115 apply, except that a permit does not expire and shall not be revoked because of the running of time while a vested right under this section is outstanding.
          c.   A right vested as provided in this section terminates at the end of the applicable vesting period with respect to buildings and uses for which no valid building permit applications have been filed.
      5.   Changes and Exceptions.
         a.   A vested right precludes any zoning action by a local government that would change, alter, impair, prevent, diminish, or otherwise delay the development or use of the property as set forth in an approved site-specific vesting plan, except under the following conditions outlined in G.S. 160D.108.1.
         b.   The establishment of a vested right shall not preclude the application of overlay zoning that imposes additional requirements but does not affect the allowable type or intensity of use or ordinances or regulations that 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.
         c.   Notwithstanding any provision of this section, the establishment of a vested right does not preclude, change, or impair the authority of the Town of Surf City to adopt and enforce development regulations governing nonconforming situations or uses.
   I.   Voluntary Annexation.
      1.   A petition for annexation filed with the Town under G.S. 160A-31 or 160A-58.1 shall contain a signed statement declaring whether or not any zoning vested right with respect to the properties subject to the petition has been established under G.S. 160D-102.
      2.   The statement shall declare that no zoning vested right has been established under G.S. 160D-102, or the failure to sign a statement declaring whether or not a zoning vested right has been established, shall be binding on the landowner and any such zoning vested right shall be terminated.
   J.   Limitations. Nothing in this Ordinance is intended or shall be deemed to create any vested right other than those established pursuant to G.S. 160D-102.
   K.   Repealer. In the event that G.S. 160D-102 is repealed, this Ordinance shall be deemed repealed and the provisions hereof no longer effective.
(Ord. No. 2024-15, 11-5-24)

3.27 Permit choice.

   An applicant for a development permit may choose which adopted version of the rule or ordinance will apply to the permit and use of the building, structure, or land indicated on the permit application if a land development regulation is amended between the time the application was submitted and the permit decision is made or if a land development regulation is amended after a development permit decision has been challenged and found to be wrongfully denied or illegal.
   A.   When a development required multiple permits under the development regulations of this ordinance, the applicant may choose the regulations applicable to the project at the time of their initial permit application. The applicant must submit the subsequent applications within eighteen (18) months of approval of the initial permit in order to claim permit choice.
   B.   If the development permit applicant chooses the version of the rule or ordinance applicable at the time of the permit application, the development permit applicant shall not be required to await the outcome of the amendment to the rule, map, or ordinance prior to acting on the development permit. The provisions contained in G.S 143-755 apply.
   C.   If a permit application is on hold for six (6) or more consecutive months at the request of the applicant, then permit choice is waived and the rules in effect at the time of resuming consideration of the application apply.
(Ord. No. 2024-15, 11-5-24)

3.28 Enforcement.

   A.   Enforcement of Provisions.
      1.   The Administrator and/or their designee shall administer and enforce this ordinance. The Administrator may be provided with assistance of such other persons as the Town Council may direct.
      2.   If the Administrator finds that any of the provisions of this ordinance are being violated, they shall notify in writing the person responsible for such violation indicating the nature of the violation and ordering the action necessary to correct it. The notice of violation shall be delivered to the holder of the development approval and to the landowner of the property involved, if the landowner is not the holder of the development approval, by personal delivery, electronic delivery, or first-class mail and may be provided by similar means to the occupant of the property or the person undertaking the work or activity. The notice of violation may be posted on the property. The person providing the notice of violation shall certify to the town clerk that the notice was provided, and the certificate shall be deemed conclusive in the absence of fraud. An order discontinuance of illegal use of land, buildings, or structures; removal of illegal buildings or structures or of additions, alterations, or structural changes thereto; discontinuance of any illegal work being done; or shall take any other action authorized by this ordinance to ensure compliance with or to prevent violation of its provisions.
   B.   Notice to Comply.
      1.   Inspections. Town staff, under the direction of the Administrator or Code Enforcement Officer, may inspect work undertaken pursuant to a development approval to assure that the work is being done in accordance with applicable State and local laws and of the terms of the approval. In exercising this power, the staff is authorized to enter any premises within the jurisdiction of the local government at all reasonable hours for the purposes of inspection or other enforcement action, upon presentation of proper credentials; provided, however, that the appropriate consent has been given for inspection of areas not open to the public or that an appropriate inspection warrant has been secured.
      2.   Complaints Regarding Violations. Whenever a violation of this ordinance occurs or is alleged to have occurred, any person may file a written complaint. Any written complaint stating fully the cause and basis thereof shall be filed with the Administrator who shall properly record such complaint, investigate in a timely manner, and take action as provided by this ordinance.
      3.   Notice of Violation.
         a.   Upon discovering a violation of this ordinance, the Administrator shall issue a written "Notice of Violation" containing the following information:
            (1)   That the land, building, structure, sign, or use is in violation of this ordinance;
            (2)   A description of the violation and citation of the relevant Section(s) of the applicable code;
            (3)   Specific measures necessary to remedy the violation;
            (4)   The time within which the violation shall be corrected.
         b.   The Notice of Violation shall be in writing and shall be delivered to the holder of the development approval and to the owner of the property involved (if that person is not the holder of the development approval) by personal delivery, electronic delivery, or first-class mail or by conspicuously posting on the property. The responsible party shall remedy the violation within the time specified in the Notice of Violation. Appeals of the Notice of Violation may be taken to the Board of Adjustment and any further enforcement shall have stayed pending hearing of the appeal.
      2.   Responsible Party. The owner of any land, building, structure, sign, land use or part thereof, and any occupant, architect, builder, contractor, agent or another person, who participates or acts in concert, assists, directs, creates or maintains any condition that is in violation of this ordinance may be held responsible for the violation and subject to the civil penalties and remedies provided therein.
   C.   Stop Work Orders. Whenever any work or activity subject to regulation pursuant to this ordinance is undertaken in substantial violation of any State or local law, or in a manner that endangers life or property, the Administrator may order the specific part of the work or activity that is in violation or presents such a hazard to be immediately stopped.
      1.   The order shall be in writing, directed to the person doing the work or activity, and shall state the specific work or activity to be stopped, the reasons therefore, and the conditions under which the work or activity may be resumed.
      2.   A copy of the order shall be delivered to the holder of the development approval and to the owner of the property involved (if that person is not the holder of the development approval) by personal delivery, electronic delivery, or first-class mail. The person or persons delivering the stop-work order shall certify to the local government that the order was delivered, and that certificate shall be deemed conclusive in the absence of fraud.
      3.   Appeals and Violations of Stop Works Orders. Except as provided by G.S. 160D-1112 and G.S. 160D-1208, a stop-work order may be appealed pursuant to G.S. 160D-405. No further work or activity shall take place in violation of a stop-work order pending a ruling on the appeal. Violation of a stop-work order shall constitute a Class 1 misdemeanor.
   D.   Revocation of Permits. In addition to initiation of enforcement actions under G.S. 160D-404, development approvals may be revoked by the Town by notifying the holder in writing stating the reason for the revocation. The Town shall follow the same development review and approval process required for issuance of the development approval, including any required notice or hearing, in the review and approval of any revocation of that approval. Development approvals shall be revoked for any substantial departure from the approved application, plans, or specifications; for refusal or failure to comply with the requirements of any applicable local development regulation or any State law delegated to the local government for enforcement purposes in lieu of the State; or for false statements or misrepresentations made in securing the approval. Any development approval mistakenly issued in violation of an applicable State or local law may also be revoked.
   E.   Remedies. Any development regulation adopted in accordance with G.S. Chapter 160D may be enforced by any remedy provided in G.S. 160A-175 or G.S. 153A-123. If a building or structure is erected, constructed, reconstructed, altered, repaired, converted, or maintained, or any building, structure, or land is used or developed in violation of this ordinance or of any development regulation, the Town may take appropriate action or proceedings.
      1.   No civil penalty shall be assessed under this Section until a Notice of Violation has been issued to the responsible party as provided above. If after receiving a Notice of Violation the responsible party fails to correct the violation, a civil penalty shall be imposed in the form of a citation. Such citation shall be in writing and shall be delivered by certified or registered mail to the holder of the development approval and to the owner of the property involved (if that person is not the holder of the development approval), by personal service, or by conspicuously posting on the property. The citation shall state the civil penalty fee and shall direct the violator to pay the civil penalty within ten (10) business days of the date of issuance. Failure to pay the civil penalty shall subject the responsible party, in addition to other remedies, to the payment of reasonable attorney's fees, including the principal amount of the penalty and interest accruing thereon.
      2.   Upon expiration of the time limit set forth by the Administrator in the Notice of Violation, Civil Penalties as set by the Town of Surf City fee schedule shall be assessed per violation. Assessment of a civil penalty and payment of that penalty does not negate the responsible party from correcting the violation. Civil penalties paid within ten (10) business days shall be reduced by fifty (50%) percent if the violation has been corrected.
      3.   Civil penalties assessed for violations of this Article shall constitute a lien against the property upon which the violation is or has been conducted.
      4.   Notwithstanding any other remedies of civil penalties imposed for violations of this Article, in the event that the Town files suit to enforce any section of this Article and prevails in such suit, the entity found to be in violation shall be responsible for reasonable attorney's fees expended by the Town to enforce such ordinance.
   F.   Penalties for Transferring Lots in an Unapproved Subdivision. The following penalties as set forth in the General Statutes shall also prevail: G.S. 160D-807, "Penalties for Transferring Lots in Unapproved Subdivisions; any person who, being the owner or agent of the owner of any land located within the jurisdiction of that city, thereafter subdivides his land in violation of the ordinance or transfers or sells land by reference to, exhibition of, or any other use of a plat showing a subdivision of the land before the plat has been properly approved under such ordinance and recorded in the office of the appropriate register of deeds, shall be guilty of a Class 1 misdemeanor. The description by metes and bounds in the instrument of transfer or other document used in the process of selling or transferring land shall not exempt the transaction from this penalty. The Town may bring an action for injunction of any illegal subdivision, transfer, conveyance, or sale of land, and the court shall, upon appropriate findings, issue an injunction and order requiring the offending party to comply with the subdivision ordinance."
(Ord. No. 2024-15, 11-5-24)