§ 40-397. Site-specific development plan.

(a)

Purpose. This section provides for the establishment of certain vested rights for the following reasons:

(1)

To provide reasonable certainty, stability, and fairness in the land-use planning process;

(2)

Secure the reasonable expectations of landowners;

(3)

Foster cooperation between the public and private sectors in the area of land-use planning;

(4)

The town recognizes that approval of land-use development typically follows significant landowner investment in site evaluation, planning, development costs, consultant fees, and related expenses;

(5)

These provisions will strike an appropriate balance between private expectations and the public interest, while scrupulously protecting the public health, safety, and welfare;

(6)

There will be ample opportunities for public participation and the public interest will be served; and

(7)

To preserve the prerogatives and authority of local elected officials with respect to land-use matters.

(b)

Establishment of vested right for a site-specific development plan.

(1)

A vested right shall be deemed established with respect to any property upon approval, of a site-specific development plan or a phased development plan, subject to all conditions, specifications, procedures and required findings as listed under article XI of this chapter, conditional use permit approval process.

(2)

Such vested right shall confer upon the landowner the right to undertake and complete the development and use of said property under the terms and conditions of the site-specific development plan or the phased development plan including any amendments thereto.

(3)

A site-specific development plan or a phased development plan shall be deemed approved upon the effective date of the town council's action.

(4)

Any property owner wishing to establish vested right shall make their intentions known in writing to the town at the time of submittal of the site-specific development plan.

(5)

A vested right may be established only for uses that are currently permitted by right or by conditional use permits in the appropriate zoning district.

(c)

Requirements for site-specific development plans and phased development plans. A site-specific development plan and phased development plan shall meet the site plan requirements as listed in article XIII of this chapter. In addition, the submittal shall include all of the following:

(1)

The site-specific development plan or phased development plan may be conditioned to require that the entire development or any phase of it be commenced or completed within a specified period of time.

(2)

A description of public facilities that will service 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.

(3)

A description, where appropriate, of any reservation or dedication of land for public purposes and any provisions to protect environmentally sensitive property.

(4)

A description of all local development permits approved or needed to be approved for the development of the property, together with a statement indicating that the failure of the approval to address a particular permit, condition, term, or restriction does not relieve the developer of the necessity of complying with the law governing their permitting requirements, conditions, terms, or restrictions.

(5)

A description of any conditions, terms, restrictions, or other requirements determined to be necessary by the local government for the public health, safety, or welfare of its citizens.

(6)

No phase of a phased development plan shall be dependent upon the completion of a subsequent phase. Each development project shall stand on its own (i.e., the parking for phase 1 of a development shall not be contingent on a parking deck yet to be built in phase 2).

(7)

Each part or phase of a site-specific development plan shall clearly describe what is being proposed in accordance with article XIII of this chapter (i.e., the labeling of "future development" shall not constitute a vested right without specific details).

(8)

Each site-specific development plan which obtains a vested right under this chapter shall contain the following notation: "Approval of this site-specific development plan establishes a vested right under G.S. 160A-385.1. Unless terminated at an earlier date, the vested right shall be valid until (date)."

(d)

Duration and termination of vested right.

(1)

Town council may provide that rights shall be vested for two 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. These determinations shall be in the sound discretion of the town council.

(2)

Following approval of a site-specific development plan or a phased development plan, nothing in this section shall exempt such a plan from subsequent reviews and approvals by the town to ensure compliance with the terms and conditions of the original approval, provided that such reviews and approvals are not inconsistent with said original approval. Nothing in this section shall prohibit the town council from revoking the original approval for failure to comply with applicable terms and conditions of the approval or this chapter.

(3)

Upon issuance of a building permit, the provisions of G.S. 160A-418 and 160A-422 shall apply, except that a permit shall not expire or be revoked because of the running of time while a vested right under this section is outstanding.

(4)

A right which has been vested as provided in this section shall terminate 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)

If a site-specific development plan receives approval by town council for less than five years, then the town council may vote to extend the site-specific development without going back through the approval process. Any such approval shall be at the request of the landowner and for good cause shown. In no circumstance shall the statutory vesting of a site-specific development plan exceed five years without going back through the conditional use permit approval process under the current code requirements.

(e)

Subsequent changes prohibited; exceptions.

(1)

A vested right, once established as provided for in this section, precludes any zoning action 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 development plan or an approved phased development plan, except:

a.

With the written consent of the affected landowner;

b.

Upon findings, by ordinance after notice and a public hearing, that natural or manmade 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 development plan or the phased development 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 consultant's fees incurred after approval by the town, together with interest thereon at the legal rate until paid. Compensation shall not include any diminution in the value of the property which is caused by such action;

d.

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

e.

Upon the enactment or promulgation of a state or federal law or regulation which precludes development as contemplated in the site-specific development plan or the phased development plan, in which case the town may modify the affected provisions, upon a finding that the change in state or federal law has a fundamental effect on the plan, by ordinance after notice and a hearing. For example, in no case does an approval of a site-specific development plan supersede federal or state regulations such as the rules defined by the National Flood Insurance Program (NFIP) or Coastal Area Management Act (CAMA).

(2)

The establishment of a vested right shall not preclude the application of overlay zoning which imposes additional requirements but does not affect the allowable type or intensity of use, or ordinances or regulations which are general in nature and are applicable to all property subject to town land use regulations, including, but not limited to, building, fire, plumbing, electrical, and mechanical codes. Otherwise applicable new regulations shall become effective with respect to property which is subject to a site-specific development plan or a phased development 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 shall not preclude, change or impair the authority to adopt and enforce zoning ordinance provisions governing nonconforming situations or uses.

(4)

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

(5)

Nothing in this chapter shall prevent the town from amending this chapter or official map in such a way that a development project for which a vested right has been established is rendered nonconforming in any way.

(Code 1986, app. A, § 17.9; Ord. No. 09-773, 1-13-2009)