Wilkesboro City Zoning Code

ADMINISTRATION

§ 156.201 ZONING ENFORCEMENT OFFICER.

(A) Authorization.

(1) The provisions of this chapter shall be administered by the Zoning Enforcement Officer, who shall be appointed by the governing board. The governing board may appoint administrators, inspectors, enforcement officers, planners, technicians, and other staff to develop, administer, and enforce development regulations.

(2) The governing body may enter contracts with another city, county, or combination thereof under which the parties agree to create a joint staff for the enforcement of state and local laws specified in the agreement. The governing boards of the contracting parties may make any necessary appropriations for this purpose.

(B) Duties. Duties assigned to staff may include, but are not limited to, drafting and implementing plans and development regulations to be adopted pursuant to this chapter; determining whether applications for development approvals are complete; receiving and processing applications for development approvals; providing notices of applications and hearings; making decisions and determinations regarding development regulation implementation; determining whether applications for development approvals meet applicable standards as established by law and local ordinance; conducting inspections; issuing or denying certificates of compliance or occupancy; enforcing development regulations, including issuing notices of violation, orders to correct violations, and recommending bringing judicial actions against actual or threatened violations; keeping adequate records; and any other actions that may be required in order to adequately enforce the laws and development regulations under their jurisdiction. Persons aggrieved by a decision, or a determination made by the Zoning Officer may appeal that action to the Zoning Board of Adjustment.

(Res. 2022-23, passed 8-1-2022)

§ 156.202 DEVELOPMENT APPROVALS AND DETERMINATIONS.

(A) Development approvals. To the extent consistent with the scope of regulatory authority granted by G.S. Ch. 160D, no person shall commence or proceed with development without first securing any required development approval as described in this chapter. Development approvals may be issued in print or electronic form. Any development approval issued exclusively in electronic form shall be protected from further editing once issued. Applications for development approvals may be made by the landowner, a lessee or person holding an option or contract to purchase or lease land, or an authorized agent of the landowner. An easement holder may also apply for development approval for such development as is authorized by the easement.

(B) Zoning compliance permit.

(1) It shall be unlawful to begin construction, place, or move any structure, including signs, or to begin to grade or excavate for immediate construction until the Zoning Enforcement Officer has issued for such work a zoning compliance permit which includes a determination that the site plan, building specifications, and the intended use of such structure conform in all respects to these provisions. A zoning compliance permit is required for, but does not satisfy the need for, the issuance of a building permit when the proposed work requires it. Applicants are responsible for obtaining any additional permits from other agencies as required by applicable laws.

(2) It shall be unlawful to change the type of use or type of occupancy of any building, or to extend any use of any lot on which there is a nonconforming use, until the Zoning Enforcement Officer has issued for such intended use a zoning compliance permit, including a determination that the proposed use does, in all respects, conform to the provisions of this chapter.

(1) The officer making the determination shall give written notice to the owner of the property that is the subject of the determination and to the party who sought the determination, if different from the owner. The written notice shall be delivered by personal delivery, electronic mail, or by first-class mail. The notice shall be delivered to the last address listed for the owner of the affected property and to the address provided in the application or request for a determination if the party seeking the determination is different from the owner.

(2) It is conclusively presumed that all persons with standing to appeal have constructive notice of the determination from the date a sign providing notice that a determination has been made is prominently posted on the property that is the subject of the determination, provided the sign remains on the property for at least ten days. The sign shall contain the words "Zoning Decision" or "Subdivision Decision" or similar language for other determinations in letters at least six inches high and shall identify the means to contact a local government staff member for information about the determination. Posting of signs is not the only form of constructive notice. Any such posting is the responsibility of the landowner, applicant, or person who sought the determination. Verification of the posting shall be provided to the staff member responsible for the determination. Absent an ordinance provision to the contrary, posting of signs shall not be required.

(D) Duration of development approval. Unless a different period is specified by this chapter or other specific applicable law, including for a development agreement, a development approval issued pursuant to this chapter expires one year after the date of issuance if the work authorized by the development approval has not been substantially commenced.

(E) Changes. After a development approval has been issued, no deviations from the terms of the application or the development approval shall be made until written approval of proposed changes or deviations has been obtained. The administrator shall follow the same development review and approval process required for issuance of the development approval in the review and approval of any major modification of that approval.

(F) Inspections. Administrative staff 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, staff are 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.

(G) Certificate of occupancy. A local government may, upon completion of work or activity undertaken pursuant to a development approval, make final inspections and issue a certificate of compliance or occupancy if staff finds that the completed work complies with all applicable state and local laws and with the terms of the approval. No building, structure, or use of land that is subject to a building permit shall be occupied or used until a certificate of compliance or temporary certificate pursuant to G.S. § 160D-1116 has been issued.

(Res. 2022-23, passed 8-1-2022)

§ 156.203 ENFORCEMENT.

(A) General enforcement procedures.

(1) Investigation and inspections. Upon the receipt of complaints or other information suggesting a violation of this chapter, the Zoning Enforcement Officer shall investigate the allegations and determine whether a violation exists. Administrative staff 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, staff are 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) Notice of violation. When the Zoning Enforcement Officer determines work or activity has been undertaken in violation of a development regulation adopted pursuant to this chapter or other local development regulation or any state law delegated to the local government for enforcement purposes in lieu of the state or in violation of the terms of a development approval, a written notice of violation may be issued. 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 local government that the notice was provided, and the certificate shall be deemed conclusive in the absence of fraud. Except as provided by G.S. § 160D-1123 or G.S. § 160D-1207(e) or otherwise provided by law, a notice of violation may be appealed to the Zoning Board of Adjustment pursuant to G.S. § 160D-405.

(3) Appeal to Zoning Board of Adjustment. An appeal from a notice of violation shall be taken within 30 days to the Zoning Board of Adjustment. If a person who receives a warning citation does not appeal the determination within the time established in G.S. § 160D-405(d), then that person may not later appeal to the Zoning Board of Adjustment the subsequent imposition of any remedy or penalty.

(4) Extension of time to correct violation. Where the Zoning Enforcement Officer determines that the period of time stated in the original notice of violation is not sufficient for abatement based upon the work required or consent agreement, the enforcement official may amend the notice to provide for additional time. The Zoning Enforcement Officer may grant an extension only by written notice of extension.

(5) Enforcement upon failure to correct violation. Upon failure of the violator to obey the notice of violation, a civil citation shall be issued by the enforcement official of the Town of Wilkesboro and either served directly on the violator, duly designated agent, or registered agent if a corporation, either in person or posted in the United States mail service by first class mail addressed to the last known address of the violator as contained in the records of Wilkes County or obtained from the violator. The violator shall be deemed to have been served upon the mailing of said citation. The citation shall direct the violator to appear before the Zoning Enforcement Officer, or designee, within 30 days of the date of the citation, or alternatively to pay the citation by mail. The violation for which the citation is issued must have been corrected by the time the citation is paid; otherwise, further citations shall be issued.

(6) Emergency enforcement without notice. If delay in correcting a violation would seriously threaten the effective enforcement of this chapter or pose an immediate danger to the public health, safety, or welfare, then the Zoning Enforcement Officer may order the immediate cessation of a violation. The Zoning Enforcement Officer may seek immediate enforcement, without prior written notice, through any remedy or penalty authorized by this chapter.

(7) Stop work orders. Whenever any work or activity subject to regulation pursuant to this chapter is undertaken in substantial violation of any state or local law, or in a manner that endangers life or property, staff may order the specific part of the work or activity that is in violation or presents such a hazard to be immediately stopped. 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. A copy of the order shall be delivered to the holder of the development approval and to the owner of the property involved 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. Except as provided by G.S. § 160D-1114 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.

(B) Offenses and remedies.

(1) First offense. Any violation occurring once within a 36-month period shall be considered a first offense. A notice of violation shall be issued by the Administrator or his/her designee to the violator. Such notice shall set out the nature of the violation, the section violated, and the date of the violation. The notice of violation shall provide for a reasonable period of time by which the violation must be abated or otherwise brought into compliance with this chapter. The notice shall specify that a second citation shall incur a civil penalty, together with costs and attorney fees. An appeal of the Administrator's decision shall be allowed. Upon the expiration of the deadline stated in the notice of violation, the violator shall be subject to a civil penalty of $50 for each day that the violation remains on the property without further notice. Should a violation continue to exist and/or the violator fails to pay the penalties, the town shall seek to recover the penalty together with all costs by filing a civil action in the General Court of Justice in the nature of a suit to collect a debt. The collection of a penalty pursuant hereto shall not foreclose further proceedings for penalties coming due subsequent to the date of the filing of a prior proceeding. The provisions of this section may also be enforced through any other appropriate remedies as prescribed in G.S. Ch. 160D.

(2) Repeat offense. Any violation reoccurring on the same property by the same violator more than once within a 36-month period shall be considered a repeat offense provided the reoccurrence is a violation of the same section of this chapter. A notice of violation shall be issued by the Administrator or his/her designee and shall have an immediate civil penalty of $300. No warning period shall be granted since this provision applies only to violations that occur more than once in a 36-month period and proper notice was given for the initial violation. For each day the repeat violation remains, the violator shall be subject to a civil penalty of $300. Should a violation continue to exist and/or the violator fails to pay the penalties, the town shall seek to recover the penalty together with all costs by filing a civil action in the General Court of Justice in the nature of a suit to collect a debt. Procedures for issuance, service, and collection of non-paid penalties shall be as set forth in this section. The collection of a penalty pursuant hereto shall not foreclose further proceedings for penalties coming due subsequent to the date of the filing of a prior proceeding. The provisions of this section may also be enforced through any other appropriate remedies as prescribed in G.S. Ch. 160D.

(3) Other powers. In addition to the enforcement powers specified in this section, the Town Council may exercise any and all enforcement powers granted by state law.

(4) Remedies cumulative. The remedies and enforcement powers established in this chapter shall be cumulative, and the town may exercise them in any order.

(C) Remedies and penalties. The town may use any combination of actions and penalties to prevent, correct, stop, abate, or penalize a violation of this chapter:

(1) Injunction and abatement order. In addition to the penalties set out above, this chapter may be enforced by injunction and order of abatement by the General Court of Justice. When violations occur, the town may apply to the appropriate division of the General Court of Justice for a mandatory or prohibitory injunction and/or order of abatement commanding the defendant to correct the violation. The action shall be governed in all respects by the laws and rules governing civil proceedings, including the Rules of Civil Procedure in general and Rule 65 in particular.

(2) Revocation of development approvals. In addition to initiation of enforcement actions under G.S. § 160D-404, development approvals may be revoked by the local government issuing the development approval by notifying the holder in writing stating the reason for the revocation. The local government 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. The revocation of a development approval by a staff member may be appealed pursuant to G.S. § 160D-405. If an appeal is filed regarding a development regulation adopted by a local government pursuant to this chapter, the provisions of G.S. § 160D-405(f) regarding stays apply.

(3) Disapproval of subsequent permits and development approvals. As long as a violation of this chapter continues and remains uncorrected, the Zoning Enforcement Officer may withhold, and the Zoning Enforcement Officer and other town boards may disapprove, any request for permit or development approval or authorization provided for by this chapter for the land on which the violation occurs.

(Res. 2022-23, passed 8-1-2022)

§ 156.204 DEVELOPMENT AGREEMENTS.

(A) Authorization. Development projects often occur in multiple phases over several years, requiring a long-term commitment of both public and private resources. Such developments often create community impacts and opportunities that are difficult to accommodate within traditional zoning processes. Because of their scale and duration, such projects often require careful coordination of public capital facilities planning, financing, and construction schedules and phasing of the private development. Such projects involve substantial commitments of private capital, which developers are usually unwilling to risk without sufficient assurances that development standards will remain stable through the extended period of the development. Such developments often permit communities and developers to experiment with different or nontraditional types of development concepts and standards, while still managing impacts on the surrounding areas. To better structure and manage development approvals for such developments and ensure their proper integration into local capital facilities programs, local governments need flexibility to negotiate such developments.

(B) Local governments may enter into development agreements with developers, subject to the procedures of this section. In entering into such agreements, a local government may not exercise any authority or make any commitment not authorized by general or local act and may not impose any tax or fee not authorized by otherwise applicable law.

(C) This section is supplemental to the powers conferred upon local governments and does not preclude or supersede rights and obligations established pursuant to other law regarding development approvals, site-specific vesting plans, or other provisions of law. 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. When the governing board approves the rezoning of any property associated with a development agreement executed and recorded pursuant to this section, the provisions of G.S. § 160D-605(a) apply.

(D) Development authorized by a development agreement shall comply with all applicable laws, including all ordinances, resolutions, regulations, permits, policies, and laws affecting the development of property, including laws governing permitted uses of the property, density, intensity, design, and improvements.

(E) Hearing. Before entering into a development agreement, a local government shall conduct a legislative hearing on the proposed agreement. The notice provisions of G.S. § 160D-602 applicable to zoning map amendments shall be followed for this hearing. The notice for the hearing 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.

(F) Approval of governing board required.

(1) A local government may establish procedures and requirements to consider and enter into development agreements with developers. A development agreement must be approved by the governing board of a local government following the procedures specified in G.S. § 160D-1005.

(2) The development agreement may, by ordinance, be incorporated, in whole or in part, into any development regulation adopted by the local government. A development agreement may be considered concurrently with a zoning map or text amendment affecting the property and development subject to the development agreement. A development agreement may be concurrently considered with and incorporated by reference with a sketch plan or preliminary plat required under a subdivision regulation or a site plan or other development approval required under a zoning regulation.

(Res. 2022-23, passed 8-1-2022)

§ 156.205 LEGAL NONCONFORMITIES.

(A) Intent. The intent of this section is to regulate and limit the continued existence of nonconforming uses, nonconforming lots, and nonconforming structures and like improvements. It is the intent of this section to permit these nonconformities to continue until they are removed, but not to encourage their survival except under the limited circumstances established in this section.

(B) Establishment.

(1) A legal nonconformity, hereafter referred to as "nonconformity", is a use, lot, structure or other like improvement that complied with all applicable requirements when it was created, but which does not comply with subsequent amendments to these requirements.

(2) The burden of establishing that a nonconformity is a legal nonconformity shall be solely upon the owner.

(1) Continuation.

(a) A nonconforming use may not be enlarged, extended, altered, or replaced, unless the change is to a use permitted in the district in which located, except as provided in division (C)(1)(b) of this section.

(b) A nonconforming use may be extended through portions of a building manifestly arranged or intended for such use, but not otherwise, and shall not extend to occupy land outside such building, or any additional building not used for such nonconforming use at the time that nonconforming status was established.

(c) Normal maintenance or repair of a structure housing a nonconforming use may be performed, provided that the cubic content of the structure shall not be increased.

(2) Discontinuance.

(a) If a nonconforming use is abandoned, ceases, or is discontinued for any reason for a period of more than 180 consecutive days, the use shall be considered abandoned. Once abandoned, the use's legal nonconforming status shall be lost and re-establishment of the use shall be prohibited. Any subsequent use of the property shall comply with the regulations of this chapter.

(b) Evidence of abandonment shall include but not be limited to: cessation or discontinuance of the particular use, disconnection of water service to the property, disconnection of electric service to the property, failure to pay property taxes, or failure to maintain the property.

(c) Any conforming structure housing a nonconforming use that is damaged by any means to an extent exceeding 60 percent of recorded tax value shall comply with the use standards of this chapter when it is reconstructed. Any conforming structure housing a nonconforming use that is damaged by any means to a lesser extent may continue the nonconforming use if it is reconstructed and used within two years of the damage.

(D) Nonconforming lots.

(1) Nonconforming lots, as defined in division (B)(1) of this section, may be built upon if compliance is achieved with setback dimensions and other requirements, except lot area or width.

(2) Nothing contained herein exempts a lot from meeting the applicable County or town regulations regarding water and sewer.

(E) Nonconforming structures.

(1) Normal maintenance and repair are permitted.

(2) Structural changes shall be permitted if the change does not increase the extent of nonconformity and complies with other applicable requirements for this chapter.

(3) Any nonconforming structure which has been damaged to an extent exceeding 60% of its fair market value shall comply with the dimensional and other applicable standards of this chapter when it is re-constructed.

(4) If a nonconforming structure, or portion thereof, or any structure or portion thereof containing a nonconforming use becomes physically unsafe or unlawful due to the lack of repairs or maintenance, and is declared to be an unsafe structure, it shall thereafter be rebuilt and repaired in conformance with the standards of this chapter.

(Res. 2022-23, passed 8-1-2022)

§ 156.206 VESTED RIGHTS AND PERMIT CHOICE.

(A) Findings. The Town of Wilkesboro recognizes that local government approval of development typically follows significant investment in site evaluation, planning, development costs, consultant fees, and related expenses. The Town of Wilkesboro finds that it is necessary and desirable to provide for the establishment of certain vested rights in order to ensure reasonable certainty, stability, and fairness in the development regulation process, to secure the reasonable expectations of landowners, and to foster cooperation between the public and private sectors in land-use planning and development regulation. The provisions of this section and G.S. § 160D-108.1 apply.

(B) Establishment.

(1) Site-specific vesting plan. A site-specific vesting plan consists of a plan submitted to a local government in which the applicant requests vesting pursuant to this section, describing with reasonable certainty on the plan the type and intensity of use for a specific parcel or parcels of property. The plan may be in the form of, but not be limited to, any of the following plans or approvals: a planned unit development plan, a subdivision plat, a preliminary or general development plan, a special use permit, or any other land-use approval designation as may be utilized by a local government. Unless otherwise expressly provided by the local government, the plan shall include the approximate boundaries of the site; significant topographical and other natural features affecting development of the site; the approximate location on the site of the proposed buildings, structures, and other improvements; the approximate dimensions, including height, of the proposed buildings and other structures; and the approximate location of all existing and proposed infrastructure on the site, including water, sewer, roads, and pedestrian walkways. What constitutes a site-specific vesting plan under this section that would trigger a vested right shall be finally determined by the local government pursuant to a development regulation, and the document that triggers the vesting shall be so identified at the time of its approval. A variance does not constitute a site-specific vesting plan, and approval of a site-specific vesting plan with the condition that a variance be obtained does not confer a vested right unless and until the necessary variance is obtained. If a sketch plan or other document fails to describe with reasonable certainty the type and intensity of use for a specified parcel or parcels of property, it may not constitute a site-specific vesting plan.

(2) Establishment of vested right. A vested right is established with respect to any property upon the valid approval of a site-specific vesting plan as provided in this section. Such a vested right confers upon the landowner the right to undertake and complete the development and use of the property under the terms and conditions of the site-specific vesting plan, including any amendments thereto.

(3) Approval and amendment of plans.

(a) If a site-specific vesting plan is based on an approval required by a local development regulation, the local government shall provide whatever notice and hearing is required for that underlying approval. A duration of the underlying approval that is less than two years does not affect the duration of the site-specific vesting plan established under this section. If the site-specific vesting plan is not based on such an approval, a legislative hearing with notice as required by G.S. § 160D-602 shall be held.

(b) A local government 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. Conditional approval results in a vested right, although failure to abide by the terms and conditions of the approval will result in a forfeiture of vested rights. A local government shall not require a landowner to waive the landowner's vested rights as a condition of developmental approval. A site-specific vesting plan is deemed approved upon the effective date of the local government's decision approving the plan or another date determined by the governing board upon approval. An approved site-specific vesting plan and its conditions may be amended with the approval of the owner and the local government as follows: any substantial modification must be reviewed and approved in the same manner as the original approval.

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

(1) A vested right for a site-specific vesting plan remains vested for a period of two years. This vesting shall not be extended by any amendments or modifications to a site-specific vesting plan unless expressly provided by the local government.

(2) Notwithstanding the provisions of this section, a local government may provide for rights to be vested for a period exceeding two years but not exceeding five years where warranted in light of all relevant circumstances, including, but not limited to, the size and phasing of development, the level of investment, the need for the development, economic cycles, and market conditions or other considerations. These determinations are at the discretion of the local government and shall be made following the process specified for the particular form of a site-specific vesting plan.

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

(4) 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.

(D) Subsequent changes prohibited and exceptions.

(1) A vested right, once established as provided for in this section, precludes any zoning action by a local government which would change, alter, impair, prevent, diminish, or otherwise delay the development or use of the property as set forth in an approved site-specific vesting plan, except under one or more of the following conditions:

(a) With the written consent of the affected landowner.

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

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

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

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

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

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

(E) Miscellaneous provisions.

(1) The vested rights granted by this section run with the land except for the use of land for outdoor advertising governed by G.S. §§ 136-131.1 and 136-131.2 in which case the rights granted by this section run with the owner of a permit issued by the North Carolina Department of Transportation.

(2) After approval of a site-specific vesting plan, all successors to the original landowner are entitled to exercise these rights.

(3) Nothing in this section precludes judicial determination, based on common law principles or other statutory provisions, that a vested right exists in a particular case or that a compensable taking has occurred. Except as expressly provided in this section, nothing in this section shall be construed to alter the existing common law.

(F) Permit choice.

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

(2) Vested rights. Amendments in land development regulations are not applicable or enforceable without the written consent of the owner with regard to any of the following:

(a) 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.

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

(d) A multi-phased development pursuant to this section.

(e) 1. A vested right established by the terms of a development agreement authorized by this chapter.

2. A vested right, once established as provided for in this section or by common law, precludes any action by a local government that would change, alter, impair, prevent, diminish, or otherwise delay the development or use of the property allowed by the applicable land development regulation or regulations, except where a change in state or federal law mandating local government enforcement occurs after the development application is submitted that has a fundamental and retroactive effect on the development or use.

(3) Duration of vesting.

(a) Upon issuance of a development permit, the statutory vesting granted by G.S. § 160D-108 for a development project is effective upon filing of the application in accordance with G.S. § 143-755, for so long as the permit remains valid pursuant to law. Unless otherwise specified by this section or other statute, local development permits expire one year after issuance unless work authorized by the permit has substantially commenced. A local land development regulation may provide for a longer permit expiration period.

(b) Except where a longer vesting period is provided by statute or land development regulation, the statutory vesting granted by this section, once established, expires for an uncompleted development project if development work is intentionally and voluntarily discontinued for a period of not less than 24 consecutive months, and the statutory vesting period granted by this section for a nonconforming use of property expires if the use is intentionally and voluntarily discontinued for a period of not less than 24 consecutive months. The 24-month discontinuance period is automatically tolled during the pendency of any Zoning Board of Adjustment proceeding or civil action in a state or federal trial or appellate court regarding the validity of a development permit, the use of the property, or the existence of the statutory vesting period granted by this section. The 24-month discontinuance period is also tolled during the pendency of any litigation involving the development project or property that is the subject of the vesting.

(4) Multiple permits for development project. Subject to G.S. § 160D-108, where multiple local development permits are required to complete a development project, the development permit applicant may choose the version of each of the local land development regulations applicable to the project upon submittal of the application for the initial development permit. This provision is applicable only for those subsequent development permit applications filed within 18 months of the date following the approval of an initial permit. For purposes of the vesting protections of this section, an erosion and sedimentation control permit or a sign permit is not an initial development permit.

(5) Multi-phased development. A multi-phased development is vested for the entire development with the land development regulations then in place at the time a site plan approval is granted for the initial phase of the multi-phased development. A right which has been vested as provided for in this section remains vested for a period of seven years from the time a site plan approval is granted for the initial phase of the multi-phased development.

(6) Process to claim vested right. A person claiming a statutory or common law vested right may submit information to substantiate that claim to the Zoning Administrator or other officer designated by a land development regulation, 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.

(7) Definitions. As used in this section, the following definitions apply:

DEVELOPMENT. As defined in G.S. § 143-755(e)(1).

DEVELOPMENT PERMIT. As defined in G.S. § 143-755(e)(2).

LAND DEVELOPMENT REGULATION. As defined in G.S. § 143-755(e)(3).

MULTI-PHASED DEVELOPMENT. A development containing 25 acres or more that is both of the following:

1. Submitted for development permit approval to occur in more than one phase.

2. Subject to a master development plan with committed elements showing the type and intensity of use of each phase.

(Res. 2022-23, passed 8-1-2022)

§ 156.207 LEGISLATIVE DECISIONS AND AMENDMENTS.

(A) The governing board may amend the text of this chapter or the Official Zoning Map upon compliance with the provisions of this section.

(B) Amendment petition. A petition for amendment to the text of this chapter or to the Official Zoning Map may be proposed by the governing board, the Planning Board, the Zoning Board of Adjustment, the Zoning Enforcement Officer, or other interested person or agency. Forms and fees are available from the Zoning Enforcement Officer.

(C) Initial zoning. To exercise zoning powers a local government shall create or designate a planning board. The Planning Board shall prepare or shall review and comment upon a proposed zoning regulation, including the full text of such regulation and maps showing proposed district boundaries.

(D) Zoning amendments. Subsequent to initial adoption of a zoning regulation, all proposed amendments to the zoning regulation or zoning map shall be submitted to the Planning Board for review and comment. The Planning Board may hold public meetings hearings while preparing the regulation. Upon completion, the Planning Board shall make a written recommendation regarding adoption of the regulation to the governing board.

(E) Recommendation. Within a maximum of 60 days after the regular meeting at which a review of the application is scheduled, the Planning Board shall submit a recommendation to the governing board concerning the disposition of the application. If no written report is received from the Planning Board, the governing board may act on the amendment without the Planning Board report. The governing board is not bound by the recommendations, if any, of the Planning Board.

(F) Public hearing. Following receipt of a recommendation from the Planning Board, the governing board must hold a public hearing before formally acting on the proposed amendment. The governing board shall not hold its required hearing or take action until it has received a recommendation regarding the regulation from the Planning Board. Following its required hearing, the governing board may refer the regulation back to the Planning Board for any further recommendations that the board may wish to make prior to final action by the governing board in adopting, modifying, or rejecting the regulation.

(G) Review of other ordinances and actions. Any development regulation other than a zoning regulation that is proposed to be adopted may be referred to the Planning Board for review and comment.

(H) Plan consistency. When conducting a review of proposed zoning text or map amendments, the Planning Board shall advise and comment on whether the proposed action is consistent with any comprehensive plan that has been adopted and any other officially adopted plan that is applicable. The Planning Board shall provide a written recommendation to the governing board that addresses plan consistency and other matters as deemed appropriate, but a comment by the Planning Board that a proposed amendment is inconsistent with the comprehensive plan shall not preclude consideration or approval of the proposed amendment by the governing board. If a zoning map amendment qualifies as a "large-scale zoning map amendment" 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.

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

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

(K) Single statement permissible. The statement of reasonableness and the plan consistency statement required by this section may be approved as a single statement.

(Res. 2022-23, passed 8-1-2022)

§ 156.208 PROCEDURES & NOTICE REQUIREMENTS.

(A) Hearing with published notice. Before adopting, amending, or repealing any development regulation authorized by this chapter, the governing board shall hold a legislative hearing. A notice of the hearing shall be given once a week for two successive calendar weeks in a newspaper having general circulation in the area. The notice shall be published the first time not less than ten days nor more than 25 days before the date scheduled for the hearing. In computing such period, the day of publication is not to be included but the day of the hearing shall be included.

(B) Ordinance required. A development regulation adopted shall be adopted by ordinance.

(C) Down-zoning. No amendment to zoning regulations or a zoning map that down-zones property shall be initiated nor is it enforceable without the written consent of all property owners whose property is the subject of the down-zoning amendment unless the down-zoning amendment is initiated by the local government. For purposes of this section, "down-zoning" means a zoning ordinance that affects an area of land in one of the following ways:

(1) By decreasing the development density of the land to be less dense than was allowed under its previous usage.

(2) 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.

(D) Mailed notice. The owners of affected parcels of land and the owners of all parcels of land abutting that parcel of land shall be mailed a notice of the hearing on a proposed zoning map amendment by first-class mail at the last addresses listed for such owners in the county tax records. Properties are "abutting" even if separated by a street, railroad, or other transportation corridor or public right-of-way. This notice must be deposited in the mail at least ten but not more than 25 days prior to the date of the hearing. If the zoning map amendment is being proposed in conjunction with an expansion of municipal extraterritorial planning and development regulation jurisdiction under G.S. § 160D-202, a single hearing on the zoning map amendment and the boundary amendment may be held. In this instance, the initial notice of the zoning map amendment hearing may be combined with the boundary hearing notice and the combined hearing notice mailed at least 30 days prior to the hearing.

(E) Optional notice for large-scale zoning map amendments. The first-class mail notice is not required if the zoning map amendment proposes to change the zoning designation of more than 50 properties, owned by at least 50 different property owners, and the local government elects to use the expanded published notice under G.S. §§ 160D-601 and 160D-602(b).

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

(Res. 2022-23, passed 8-1-2022)

§ 156.209 PROTEST PETITIONS.

(A) In case of a protest against any amendment or change of this chapter, or allowed by this chapter, signed by the owners of 20% or more, either of the area of the lots included in such proposed change; or of those immediately adjacent thereto, either in the rear thereof or on either side thereof, extending 100 feet there from; or of those directly opposite thereto extending 100 feet from the street frontage of such opposite lots; such amendment shall not become effective except by favorable vote of three-fourths of all members of the governing board.

(B) No protest against any change or amendment of this chapter shall be valid or effective under the provisions of the foregoing division unless such protest is in the form of a written petition actually bearing the signatures of the requisite number of property owners and stating that the signers do protest the proposed change or amendment, and unless such protest shall have been received by the governing board in sufficient time to allow at least two normal workdays prior to the date established for a public hearing on the proposed change or amendment to determine the sufficiency and accuracy of the petition. Such petition shall be accompanied by a map or sketch clearly showing the property of the petitioners in such detail as to show that the ownership requirements of the foregoing division are met, which would compel a three-fourths favorable vote by the governing board.

(Res. 2022-23, passed 8-1-2022)

§ 156.210 WITHDRAWAL OF APPLICATION.

A zoning petition may not be withdrawn by the applicant after publication, or scheduled publication which cannot be cancelled, of notice of public hearing except by permission of the governing board before which the petition is pending for action or consideration. The filing fees are not refundable, except that the Zoning Enforcement Officer may authorize refund of the fees if no notice expenses related to the petition have been incurred.

(Res. 2022-23, passed 8-1-2022)

§ 156.211 EFFECT OF DENIAL ON SUBSEQUENT PETITIONS.

(A) When the governing board shall have acted upon an application or the application shall have been withdrawn after the first notice of the public hearing thereon, the governing board shall not receive another application for the same or similar text or map amendment, affecting the same property or a portion of it, until the expiration of a one-year period, extending from the date of action or withdrawal, as appropriate.

(B) The governing board may on its own motion, however, initiate an amendment of this nature prior to the expiration of the one-year period.

(Res. 2022-23, passed 8-1-2022)

§ 156.212 MINOR CHANGES.

Typographical errors, spelling changes, numerical reference errors, errors in section or page numbering, or other purely non-substantive editorial changes may be corrected by the Zoning Enforcement Officer without formal adoption by the governing board provided that the changes necessary to correct such errors do not change the meaning of the ordinance. Any correction made pursuant to this section must be documented to the governing body.

(Res. 2022-23, passed 8-1-2022)

§ 156.213 QUASI-JUDICIAL PROCEDURES.

(A) Process required. Boards shall follow quasi-judicial procedures in determining appeals of administrative decisions, special use permits, certificates of appropriateness, variances, or any other quasi-judicial decision.

(B) Notice of hearing. Notice of evidentiary hearings conducted pursuant to this chapter shall be mailed to the person or entity whose appeal, application, or request is the subject of the hearing; to the owner of the property that is the subject of the hearing if the owner did not initiate the hearing; to the owners of all parcels of land abutting the parcel of land that is the subject of the hearing; and to any other persons entitled to receive notice as provided by the local development regulation. In the absence of evidence to the contrary, the local government may rely on the county tax listing to determine owners of property entitled to mailed notice. The notice must be deposited in the mail at least ten days, but not more than 25 days, prior to the date of the hearing. Within that same time period, the local government shall also prominently post a notice of the hearing on the site that is the subject of the hearing or on an adjacent street or highway right-of-way. The 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.

(C) Administrative materials. The clerk to the board shall transmit all applications, reports, and written materials relevant to the matter being considered. The administrative materials may be distributed to the members of the board prior to the hearing if at the same time they are distributed to the board a copy is also provided to the appellant or applicant and to the landowner if that person is not the appellant or applicant. The administrative materials shall become a part of the hearing record. The administrative materials may be provided in written or electronic form. Objections to inclusion or exclusion of administrative materials may be made before or during the hearing. Rulings on unresolved objections shall be made by the board at the hearing.

(D) Presentation of evidence.

(1) The applicant, the local government, and any person who would have standing to appeal the decision under G.S. § 160D-1402(c) shall have the right to participate as a party at the evidentiary hearing. Other witnesses may present competent, material, and substantial evidence that is not repetitive as allowed by the board.

(2) Objections regarding jurisdictional and evidentiary issues, including, but not limited to, the timeliness of an appeal or the standing of a party, 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.

(E) Appearance of official new issues. 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. The appellant shall not be limited at the hearing to matters stated in a notice of appeal. If any party or the local government would be unduly prejudiced by the presentation of matters not presented in the notice of appeal, the board shall continue the hearing.

(F) Oaths. The chair of the board or any member acting as chair and the clerk to the board are authorized to administer oaths to witnesses in any matter coming before the board. Any person who, while under oath during a proceeding before the board determining a quasi-judicial matter, willfully swears falsely is guilty of a Class 1 misdemeanor.

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

(H) Appeals in nature of certiorari. When hearing an appeal pursuant to G.S. § 160D-947(e) or any other appeal in the nature of certiorari, the hearing shall be based on the record, and the scope of review shall be as provided in G.S. § 160D-1402(j).

(I) Voting. The concurring vote of four-fifths of the board shall be necessary to grant a variance. A majority of the members shall be required to decide any other quasi-judicial matter or to determine an appeal made in the nature of certiorari. For the purposes of this division, 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 requisite majority if there are no qualified alternates available to take the place of such members.

(J) Decisions. The board shall determine contested facts and make its decision within a reasonable time. When hearing an appeal, the board may reverse or affirm, wholly or partly, or may modify the decision appealed from and shall make any order, requirement, decision, or determination that ought to be made. The board shall have all the powers of the official who made the decision. Every quasi-judicial decision shall be based upon competent, material, and substantial evidence in the record. Each quasi-judicial decision shall be reduced to writing, reflect the board's determination of contested facts and their application to the applicable standards, and be approved by the board and signed by the chair or other duly authorized member of the board. A quasi-judicial decision is effective upon filing the written decision with the clerk to the board or such other office or official as the development regulation specifies. 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 prior to the date the decision becomes effective. The person required to provide notice shall certify to the local government that proper notice has been made, and the certificate shall be deemed conclusive in the absence of fraud.

(K) 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. Appeals shall be filed within the times specified in G.S. § 160D-1405(d).

(Res. 2022-23, passed 8-1-2022)

§ 156.214 SPECIAL USE PERMITS.

(A) Intent. Special Uses, because of their inherent nature, extent of development, or external effects, require special care in the control of their location, design and methods of operation in order to ensure protection of the public health, safety and welfare. It is the intent of this section to set forth the additional information required for submittal and consideration of specials uses and to state the standards by which each application shall be judged.

(B) General standards and findings of fact. The Zoning Board of Adjustment shall not approve any special use unless it finds:

(1) The use will not materially endanger the public health and safety if located where proposed and developed and operated according to the plan as submitted.

(2) The use, which is listed as a special use in the district in which it is proposed to be located, complies with all applicable regulations and standards.

(3) The use will not substantially injure the value of contiguous property, or the use is a public necessity.

(4) The use is in compliance with the general plans for the physical development of the town as embodied in these regulations, or portion thereof, adopted by the governing board.

(C) Application. Applications for approval of a special use permit shall be filed on forms available from the Zoning Enforcement Officer. Applications which are not complete shall be returned forthwith to the applicant, with a notation of the deficiencies in the application. The following information shall be submitted as part of a request for a special use permit:

(1) A completed written application narrative for a special use permit along with standard application fees required by the town shall be filed with the Zoning Enforcement Officer. All other reasonable application expenses incurred by the town for the processing of a special use permit application shall be paid prior to the issuance of a final notification of action taken, and the associated issuance of a special use permit, if any. The application, unless determined to not be applicable by the Zoning Enforcement Officer, shall include the following items:

(a) Contact information of the applicant and all property owner(s), if different from the applicant, deed book and page number of the property description.

(b) Property owners, as well as adjacent owners, names, addresses, tax parcel numbers, and existing uses per parcel.

(c) A scaled boundary survey drawn to an appropriate scale prepared by and certified to be correct by a surveyor or engineer registered with State of North Carolina showing the total acreage, present zoning classification(s), date and north arrow, extent of area to be developed, locations and widths of all easements and rights-of-way within or adjacent to the site.

(d) A site plan showing, but not limited to all existing and/or proposed buildings, storage areas, parking and access areas, proposed size, layout and setbacks of land and proposed structures, planned illumination, and proposed number, type and location of signs.

(e) Proposed or existing fencing, screening, gates, parking, service and storage areas.

(f) Location of all areas on the site subject to flood hazard or inundation as shown on flood maps or soil maps as well as applicable watershed boundaries.

(g) Existing and proposed topography including all water courses on the site, including direction of flow.

(h) Plans for providing potable water and for the treatment of wastewater.

(i) Proposed phasing, if any, and approximate completion time of the project.

(j) Access to site including sight distances of all roads used for access.

(k) Architectural elevations of all structures proposed to be used in the development.

(l) An application fee as described in Town of Wilkesboro’s Schedule of Fees.

(m) Written evidence showing how the proposed use complies with special use permit standards as described in §§ 156.501 through 156.531.

(D) Public hearing.

(1) Notice and procedures for the public hearing shall be administered as described in § 156.213 Quasi-Judicial Procedures of this chapter.

(2) Action on the application shall be one of the following:

(a) Approval;

(b) Approval subject to conditions; or

(3) If the Zoning Board of Adjustment denies the permit, the reasons for its action shall be recorded in the minutes of the meeting and findings of fact.

(E) Imposed conditions.

(1) The Zoning Board of Adjustment may impose such reasonable conditions upon approval of a special use permit as will afford protection of the public health, safety, and general welfare, ensure that substantial justice is done, and equitable treatment provided. Any conditions based on time must be consistent with the provisions in § 156.206 regarding vested rights. Such conditions shall run with the land and use and shall be binding on the original applicant(s) as well as all successors, assigns, and heirs.

(2) Where appropriate, such conditions may include requirements that street and utility rights-of-way be dedicated to the public and that provision be made for recreational space and facilities. Conditions and safeguards imposed under this section shall not include requirements for which the local government does not have authority under statute to regulate nor requirements for which the courts have held to be unenforceable if imposed directly by the local government, including, without limitation, taxes, impact fees, building design elements within the scope of G.S. § 160D-702(b), driveway-related improvements in excess of those allowed in G.S. §§ 136-18(29) and 160A-307, or other unauthorized limitations on the development or use of land.

(F) Notice of decision.

(1) The town clerk shall cause notice of the disposition of the application to be delivered by certified mail to the applicant and any aggrieved party who has filed a written request for a copy with the Board at the time of the hearing and shall record a copy of the decision.

(2) The letter notifying the applicant of the Board's action shall be approved and signed by the Chairman or Vice-Chairman of the Zoning Board of Adjustment.

(3) In the case of approval or approval with conditions, the Town Clerk shall issue the necessary special use permit findings of fact in accordance with the action of the Zoning Board of Adjustment and the Clerk shall record it in the office of the Wilkes County Register of Deeds within 30 days of receipt.

(G) When the Zoning Board of Adjustment shall have denied an application or the application shall have been withdrawn, by written notice, after publication of the first public hearing notice, the Zoning Enforcement Officer shall not accept another application for the same or similar special use, affecting the same property or a portion thereof, until the expiration of one year from the date of denial or withdrawal.

(H) Appeal. A decision by the Zoning Board of Adjustment on an application for a special use permit may be appealed only to the Superior Court by an aggrieved party. Such appeal shall be in the nature of certiorari and must be filed within 30 days of filing of the decision in the office of the Town Clerk.

(I) Revocation and modifications.

(1) A special use permit may be revoked by the Zoning Board of Adjustment after a finding of the existence of any one of the following conditions:

(a) That the physical construction or activity authorized by a special use permit has not commenced within the time limit set within § 156.202(D).

(b) That the governmental licensees or permits required for the activity authorized by a special use permit have not been obtained or have subsequently been terminated; or

(c) That any of the applicable requirements of this section or any conditions attached to the special use permit, or modification, have been violated.

(d) On request by the holder of a special use permit, the Zoning Board of Adjustment may, for good cause shown, extend the time limits for commencement of authorized construction or activity by up to 12 months.

(e) The Zoning Board of Adjustment may consider reapplication for a special use permit on property on which previous permit has been revoked provided that all of the standards which are set forth in this chapter are met.

(f) Any other modification or revocation of a special use permit shall follow the same process for approval as is applicable to the approval of a special use permit. If multiple parcels of land are subject to a special use permit, the owners of individual parcels may apply for permit modification so long as the modification would not result in other properties failing to meet the terms of the special use permit or regulations. Any modifications approved apply only to those properties whose owners apply for the modification. The regulation may require that special use permits be recorded with the register of deeds.

(Res. 2022-23, passed 8-1-2022)

§ 156.215 VARIANCES.

When unnecessary hardships would result from carrying out the strict letter of a zoning regulation, the Zoning Board of Adjustment shall vary any of the provisions of the zoning regulation upon a showing of all of the following:

(A) Unnecessary hardship would result from the strict application of the regulation. It is not necessary to demonstrate that, in the absence of the variance, no reasonable use can be made of the property.

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

(C) The hardship did not result from actions taken by the applicant or the property owner. The act of purchasing property with knowledge that circumstances exist that may justify the granting of a variance is not a self-created hardship.

(D) (1) The requested variance is consistent with the spirit, purpose, and intent of the regulation, such that public safety is secured, and substantial justice is achieved.

(2) No change in permitted uses may be authorized by variance. Appropriate conditions may be imposed on any variance, provided that the conditions are reasonably related to the variance. Any other development regulation that regulates land use or development may provide for variances from the provisions of those ordinances consistent with the provisions of this section.

(Res. 2022-23, passed 8-1-2022)

§ 156.216 FEES.

The local government shall have the authority to enact ordinances, procedures, and fee schedules relating to the administration and the enforcement of this chapter. The local government shall have the power to fix reasonable fees for support, administration, and implementation of programs. The schedule of fees shall be adopted by the governing board and shall be maintained for public inspection in the office of the local government clerk.

(Res. 2022-23, passed 8-1-2022)

§ 156.217 PLANNING BOARD.

(A) Composition. The Planning Board shall consist of at least nine members, each to be appointed for three-year terms. In appointing the members or in the filling of vacancies caused by the expiration of the terms of existing members, the governing board may appoint certain members for less than three years so that the terms of all members shall not expire at the same time. All the members shall reside within the Planning and Development Jurisdiction as established pursuant to this chapter. The Board may appoint advisory bodies and committees as appropriate.

(B) Joint County Planning Board. A joint Planning Board is created pursuant to G.S. § 160D-301(a)(2).

(C) Compensation. Members shall serve with such compensation as shall be determined by the governing board. Also, members may be removed by the Council for inefficiency, neglect of duty, or malfeasance in office, and such removal shall be reported at the next meeting of the governing board and recorded in the minutes of such meeting.

(D) By-laws. The Planning Board shall adopt by-laws and rules of procedure that shall govern its proceedings.

(E) Duties and powers. A Planning Board may be assigned the following powers and duties:

(1) To prepare, review, maintain, monitor, and periodically update and recommend to the governing board a comprehensive plan, and such other plans as deemed appropriate, and conduct ongoing related research, data collection, mapping, and analysis.

(2) To facilitate and coordinate citizen engagement and participation in the planning process.

(3) To develop and recommend policies, ordinances, development regulations, administrative procedures, and other means for carrying out plans in a coordinated and efficient manner.

(4) To advise the governing board concerning the implementation of plans, including, but not limited to, review and comment on all zoning text and map amendments as required by G.S. § 160D-604.

(5) To exercise any functions in the administration and enforcement of various means for carrying out plans that the governing board may direct.

(6) To provide a preliminary forum for review of quasi-judicial decisions, provided that no part of the forum or recommendation may be used as a basis for the deciding board.

(7) To perform any other related duties that the governing board may direct.

(Res. 2022-23, passed 8-1-2022)

§ 156.218 ZONING BOARD OF ADJUSTMENT.

(A) Composition. The Zoning Board of Adjustment shall consist of at least five members, each to be appointed for three-year terms. In appointing the members or in the filling of vacancies caused by the expiration of the terms of existing members, the governing board may appoint certain members for less than three years so that the terms of all members shall not expire at the same time. All the members shall reside within the Planning and Development Jurisdiction as established pursuant to this chapter. The Board may appoint advisory bodies and committees as appropriate.

(B) Alternate members. The governing board may appoint alternate members to serve on the board in the absence or temporary disqualification of any regular member or to fill a vacancy pending appointment of a member. Alternate members shall be appointed for the same term, at the same time, and in the same manner as regular members. Each alternate member serving on behalf of any regular member has all the powers and duties of a regular member.

(D) By-laws. The Zoning Board of Adjustment shall adopt by-laws and rules of procedure that shall govern its proceedings.

(E) Duties and powers.

(1) To hear and decide appeals from and review any order, requirement, decision, or determination made by any administrative official charged with the enforcement of this chapter.

(2) To hear and decide requests for variances from the requirements of this chapter.

(3) To review applications for special use permits as authorized under this chapter.

(4) To make interpretations of the Official Zoning Map and to pass upon disputed questions of lot lines or district boundary lines and similar questions as arise in the administration of this chapter.

(5) To enter, at reasonable times, upon private lands and make examinations or surveys as necessary for the performance of its official duties.

(6) To request Town Council to hold public hearings on matters within the purview of the Board.

(7) To hear and decide any other matter as required by the provisions of this chapter or the Town of Wilkesboro Code of Ordinances.

(Res. 2022-23, passed 8-1-2022)

§ 156.219 HISTORIC PRESERVATION COMMISSION.

(A) Composition. The Historic Preservation Commission shall consist of at least five members, each to be appointed for three-year terms. In appointing the members or in the filling of vacancies caused by the expiration of the terms of existing members, the governing board may appoint certain members for less than three years so that the terms of all members shall not expire at the same time. A majority of the members of the Commission shall have demonstrated special interest, experience, or education in history, architecture, archaeology, or related fields. All the members shall reside within the Planning and Development Jurisdiction as established pursuant to this chapter. The Commission may appoint advisory bodies and committees as appropriate.

(B) Duties and powers.

(1) Undertake an inventory of properties of historical, prehistorical, architectural, and/or cultural significance.

(2) Recommend to the governing board areas to be designated by ordinance as "Historic Districts" and individual structures, buildings, sites, areas, or objects to be designated by ordinance as "Landmarks."

(3) Acquire by any lawful means the fee or any lesser included interest, including options to purchase, to properties within established districts or to any such properties designated as landmarks to hold, manage, preserve, restore, and improve such properties, and to exchange or dispose of the property by public or private sale, lease or otherwise, subject to covenants or other legally binding restrictions that will secure appropriate rights of public access and promote the preservation of the property.

(4) Restore, preserve, and operate historic properties.

(5) Recommend to the governing board that designation of any area as a historic district or part thereof, or designation of any building, structure, site, area, or object as a landmark, be revoked or removed for cause.

(6) Conduct an educational program regarding historic properties and districts within its jurisdiction.

(7) Cooperate with the state, federal, and local governments in pursuance of the purposes of this section. The governing board or the commission, when authorized by the governing board, may contract with the state, or the United States of America, or any agency of either, or with any other organization provided the terms are not inconsistent with state or federal law.

(8) Enter, solely in performance of its official duties and only at reasonable times, upon private lands for examination or survey thereof. However, no member, employee, or agent of the commission may enter any private building or structure without the express consent of the owner or occupant thereof.

(9) Prepare and recommend the official adoption of a preservation element as part of the local government's comprehensive plan.

(10) Review and act upon proposals for alterations, demolitions, or new construction within historic districts, or for the alteration or demolition of designated landmarks, pursuant to this section.

(11) Negotiate at any time with the owner of a building, structure, site, area, or object for its acquisition or its preservation, when such action is reasonably necessary or appropriate.