Chapter 16 - Land Use Ordinance

 

Article I - General Provisions

 

Section 16-1  Short Title.

 

This chapter shall be known and may be cited as the Blowing Rock Land Use Ordinance.

 

Section 16-2  Authority.

 

This chapter is adopted pursuant to the authority contained in the town charter as well as the provisions of Article 19 of Chapter 160A, Article 21, Part 6 of Chapter 143, and Article 4 of Chapter 113A of the North Carolina General Statutes.

 

Section l6-3  Jurisdiction. 

 

(A)  This chapter shall be effective throughout the town's planning jurisdiction.  The town's planning jurisdiction comprises the area within the corporate boundaries of the town as well as the area described in that or­dinance adopted by the Board of Commissioners on January 8. 1985, entitled "An Ordinance Establishing The Town of Blowing Rock's Extraterritorial Planning Jurisdiction for The Purpose of Authorizing The Ex­ercise of The Zoning and Other Regulatory Powers Permitted by Article 19 of Chapter 160A of the General Statutes", which ordinance is recorded in book 0002, page 234 of the Watauga County Registry and book 851, page 087 of the Caldwell County Registry.  Such planning jurisdiction may be modified from time to time in accordance with Section 160A-360 of the North Carolina General Statutes.

 

(B)  In addition to other locations required by law, a copy of a map showing the boundaries of the town's planning jurisdiction shall be available for public inspection in the inspections department.

 

Section 16-4  Effective Date.

 

The provisions in this chapter were originally adopted and became effective on March 13, 1984.

 

Section 16-5  Relationship to Existing Zoning, Subdivision and Flood Control Ordinances.

 

To the extent that the provisions of this chapter are the same in substance as the previously adopted provisions that they replace in the town’s zoning ordinance, they shall be considered as continuations thereof and not as new enactments unless otherwise specifically provided.  In particular, a situation that did not constitute a lawful, nonconforming situation under the previously adopted zoning ordinance does not achieve lawful nonconforming status under this chapter merely by the repeal of the zoning ordinance.

 

Section 16-6  Relationship to Land Use Plan

 

It is the intention of the Board that this chapter implement the planning policies adopted by the Board for the town and its extraterritorial planning area, as reflected in the land use plan and other planning documents.  While the Board reaffirms its commitment that this chapter and any amendment to it be in conformity with adopted planning policies, the Board hereby expresses its intent that neither this chapter nor any amendment to it may be challenged on the basis of any alleged nonconformity with any planning document.

 

Section 16-7  No Use of Land or Buildings Except in Conformity With Chapter Provisions.

 

(A)  Subject to Article III of this chapter (Nonconforming Situations), no person may use, occupy, or sell any land or buildings or authorize or permit the use, or sale of land or buildings under his control except in accordance with all of the applicable provisions of this chapter.

 

(B)  For purposes of this section, the ''use” or “occupation'' of a building or land relates to anything and everything that is done to, on, or in that building or land.

 

Section 16-7.01 No Boundary Line Adjustments Except in Conformity with Chapter Provisions.

 

No boundary of any lot may be adjusted, whether by subdivision, combination or recombination of previously platted lots, boundary line agreement, or any other legal method, except in conformance with the provisions of this Chapter.  To assure that a proposed boundary line adjustment conforms to the provisions of this Chapter, including, but not limited to, lot sizes, lot frontages, and building setbacks, the proposed adjustment shall be submitted to the Zoning Administrator for review and approval prior to execution.

 

The plan, plat, or survey depicting the proposed boundary line adjustment shall contain the following certificate:

 

Certificate of Approval

 

The proposed boundary line adjustment depicted herein is in conformance with the requirements of the Land Use Ordinance of the Town of Blowing Rock and is hereby approved.

 

___________________                      _________________________________

                                                Date                                            Zoning Administrator

 

[Amended November 13, 2001]

 

Section 16-8  Fees.

 

(A)  Reasonable fees sufficient to cover the costs of administration, inspection, publication of notice and similar matters may be charged to applicants for zoning permits, sign permits, conditional use permits, special use permits, subdivision plat approval, zoning amendments, variances and other administrative relief.  The amount of the fees charged shall be as set forth in the town's budget or as established by resolution of the Board filed in the office of the town clerk.

 

(B)  Fees established in accordance with subsection (A) shall be paid upon submission of a signed applica­tion or notice of appeal.

 

Sections 16-9 through 16-14 Reserved.

 

Article II - Basic Definitions and Interpretations 

 

Section 16-15  Definitions of Basic Terms.

 

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

 

(1)  Accessory Use.  (See Section 16-150)

 

(2)  Acute Care.  Short-term medical treatment, usually in a hospital, for patients having an acute illness or injury or recovering from surgery. [Amended August 14, 2001]

 

(3)  Administrator.  (See Section 16-37)

 

(4)  Adult Day Care.  Adult day care offers support, services, and supervision to older, frail, or disabled adults who have difficulty taking care of themselves at home, but wish to maintain their independence.  Services may include an individual plan of care, skilled nursing care and health education, rehabilitation services, personal care and supervision, social services, recreational therapy, meals, and transportation.  [Amended August 14, 2001]

 

(5)  Antenna.  [See Section 16-289.03(A)(3)]  [Amended May 13, 1997]

 

(6)  Assisted Living Unit.  A unit occupied by an individual or individuals who are unable to live independently.  The unit is part of a facility that provides indoor, conveniently located, shared food preparation service and major dining areas, and common recreation, social, and service facilities for the exclusive use of all residents.  [Amended August 14, 2001]

 

(7)  Base Flood.  The flood having a one percent chance of being equaled or exceeded in any given year.  Also known as the 100-year flood.

 

(8)  Billboard.  An off-premises sign owned by a person, corporation, or other entity that engages in the business of selling the advertising space on that sign.  [Amended April 10, 1985]

 

(9)  Bed and Breakfast.  A use (i) that takes place within a building that, before the effective date of this subdivision, was designed and used as a single-family detached dwelling; (ii) that con­sists of a single family dwelling unit together with the rental of one or more, but not to exceed six (6), dwelling rooms on a daily or weekly basis to tourists, vacationers, or similar transients; (iii) where the provision of meals, if provided at all, is limited to the breakfast meal; and (iv) where the bed and breakfast operation is conducted primarily by persons who reside within the dwelling unit, with the assistance of not more than the equivalent of one full-time employee.  [Amended February 11, 1986]

 

(10)  Boarding House.  A residential use consisting of at least one dwelling unit together with one or more rooms that are rented out or are designed or intended to be rented but which rooms, individually or collectively, do not constitute separate dwelling units.  Notwithstanding the forego­ing, the renting out of one or two rooms within a single-family residence may be regarded as an accessory use - see Subdivision 16-150(C)(3).  A  rooming house or boarding house is distinguished from a tourist home in that the former is designed to be occupied by longer term residents (at least month-to-month tenants) as opposed to overnight or weekly guests.

 

(11)  Building.  A structure designed to be used as a place of occupancy, storage or shelter.  For the purposes of this ordinance, a parking deck shall be considered to be a building.  [Amended July 9, 1996]

 

(12)  Building, Accessory.  A minor building that is located on the same lot as a principal building and that is used incidentally to a principal building or that houses an accessory use.

 

(13)  Building, Principal.  The primary building on a lot or a building that houses a principal use.

 

(14)  Carry-out Restaurant.  A place where meals or food products are prepared and served, to be eaten primarily off-premise.

 

(15)  Certify.  Whenever this chapter requires that some agency certify the existence of some fact or circumstance to the town, the town may require that such certification be made in any man­ner that provides reasonable assurance of the accuracy of the certification.  By way of illustra­tion, and without limiting the foregoing, the town may accept certification by telephone from some agency when the circumstances warrant it, or the town may require that the certification be in the form of a letter or other document.

 

(16)  Child Care Home.  A home for not more than nine orphaned, abandoned, dependent, abused, or neglected children, together with not more than two adults who supervise such children, all of whom live together as a single housekeeping unit.

 

(17)  Child Care Institution.  An institutional facility housing more than nine orphaned, abandoned, dependent, abused, or neglected children.

 

(18)  Circulation Area.  That portion of the vehicle accommodation area used for access to parking or loading areas or other facilities on the lot.  Essentially, driveways and other maneuvering areas (other than parking aisles) comprise the circulation area.

 

(19)  Combination Use.  A use consisting of a combination on one lot of two or more principal uses separately listed in the Table of Permissible Uses, Section 16-146.  (Under some circumstances, a second principal use may be regarded as accessory to the first, and thus a combination use is not established.  See Section 16-150.  In addition, when two or more separately owned or separately operated enterprises occupy the same lot, and all such enterprises fall within the same principal use classification, this shall not constitute a combination use.)

 

(20)  Conditional Use Permit.  A permit issued by the Board of Commissioners that authorizes the recipient to make use of property in accordance with the requirements of this chapter as well as any additional requirements imposed by the Board.

 

(21)  Convenience Store.  A one story, retail store containing less than 2000 square feet of gross floor area that is designed and stocked to sell primarily food, beverages, and other household sup­plies to customers who purchase only a relatively few items (in contrast to a “supermarket").  It is designed to attract and depends upon a large volume of “stop and go" traffic.  Illustrative examples of convenience stores are those operated by the "Fast Fare", "7-11" and "Pantry" chains.

 

(22)  Day Care Center.  Any child care arrangement that provides day care on a regular basis for more than four hours per day for more than five children of pre-school age.

 

(23)  Developer.  A person who is responsible for any undertaking that requires a zoning permit, special use permit, conditional use permit, or sign permit.

 

(24)  Development.  That which is to be done pursuant to a zoning permit, special use permit, condi­tional use permit, or sign permit.

 

(25)  Dimensional Nonconformity.  A nonconforming situation that occurs when the height, size, or minimum floor space of a structure or the relationship between an existing building or buildings and other buildings or lot lines does not conform to the regulations applicable to the district in which the property is located.

 

(26)  Driveway.  That portion of the vehicle accommodation area that consists of a travel lane bound­ed on either side by an area that is not part of the vehicle accommodation area.  Driveways may serve as access from streets or private roads for single-family residences, and may serve as access between parking areas.

 

(27)  Duplex.  A two-family residence other than a two-family conversion.

 

(28)  Dwelling Unit.  A building containing sleeping, kitchen, and bathroom facilities designed for and used or held ready for use as a permanent residence by one family.

 

(29)  Effective Date of This Article.  The effective date of this article as originally adopted, or the effective date of an amendment to it if the amendment makes a sign nonconforming.  [Amended April 10, 1985]

 

(30)  Expenditure.  A sum of money paid out in return for some benefit or to fulfill some obligation. The term also includes binding contractual commitments to make future expenditures as well as any other substantial changes in position.

 

(31)  Extraterritorial Planning Area.  That portion of the town's planning jurisdiction that lies out­side the corporate limits of the town.

 

(32)  Family.  One or more persons living together as a single housekeeping unit.

 

(33)  Floodplain.  Any land area susceptible to being inundated by water from the base flood.  As us­ed in this chapter, the term refers to that area designated as subject to flooding from the base flood (one hundred year flood) on the "Flood Boundary and Floodway Map" prepared by the U.S. Department of Housing and Urban Development, a copy of which is on file in the inspec­tions department.

 

(34)  Floodway.  The channel of a river or other watercourse and the adjacent land areas that must be reserved in order to discharge the base flood without cumulatively increasing the water sur­face elevation more than one foot.  As used in this chapter, the term refers to that area designated as a floodway on the “Flood Boundary and Floodway Map" prepared by the U.S. Department of Housing and Urban Development, a copy of which is on file in the inspections department.

 

(35)  Gross Floor Area.  The total area of a building measured by taking the outside dimensions of the building at each floor level intended for occupancy or storage.

 

(36)  Habitable Floor.  Any floor usable for living purposes, which includes working, sleeping, eating, cooking or recreation, or any combination thereof.  A floor used only for storage is not a habitable floor.

 

(37)  Halfway House.  A home for not more than nine persons who have demonstrated a tendency toward alcoholism, drug abuse, mental illness [as defined in G.S. 35-17(30)], or antisocial or criminal conduct, together with not more than two persons providing supervision and other services to such persons, all of whom live together as a single housekeeping unit.

 

(38)  Handicapped or Infirm Home.  A residence within a single dwelling unit for at least six but not more than nine persons who are physically or mentally handicapped or infirm, together with not more than two persons providing care or assistance to such persons, all living together as a single housekeeping unit.  Persons residing in such homes, including the aged and disabl­ed, principally need residential care rather than medical treatment.

 

(39)  Handicapped or Infirm Institution.  An institutional facility housing and providing care or assistance for more than nine persons who are physically or mentally handicapped or infirm.  Persons residing in such homes, including the aged or disabled, principally need residential care rather than medical treatment.

 

(40)  High Volume Traffic Generation.  All uses in the 2.000 classification other than low volume generation uses.

 

(41)  Home Health Care.  Services provided to individuals who are restricted in their ability to leave home without assistance, due to illness or injury.  Services may include, but are not necessarily limited to, skilled nursing, physical therapy, occupational therapy, speech therapy, personal hygiene, meal preparation, light housekeeping, etc.  [Amended August 14, 2001]

 

(42)  Home Occupation.  A commercial activity that: (i) is conducted by a person on the same lot (in a residential district) where such person resides, and (ii) is not so insubstantial or incidental or is not so commonly associated with the residential use as to be regarded as an accessory use (see Section 16-150), but that can be conducted without any significantly adverse impact on the surrounding neighborhood.

 

Without limiting the generality of the foregoing, a use may usually not be regarded as having an insignificantly adverse impact on the surrounding neighborhood if: (i) goods, stock in trade, or other commodities are displayed; (ii) any on-premises retail sales occur; (iii) more than one person not a resident on the premises is employed in connection with the purported home oc­cupation; (iv) it creates objectionable noise, fumes, odor, dust or electrical interference; or (v) more than twenty-five percent of the total gross floor area of residential buildings plus other buildings housing the purported home occupation, or more than 300 square feet of gross floor area (whichever is less), is used for home occupation purposes.

 

(43)  Hotels and Motels.  A building or group of buildings wherein temporary lodging is provided on a regular basis to persons who seek to rent rooms or dwelling units on a day-to-day basis, ex­cept that the following are excluded from this definition: (i) tourist homes; (ii) bed and breakfast establishments; (iii) single-family and two-family residences, regardless of the basis on which they are rented; (iv) multi-family residences, unless at least ten percent of the dwelling units within a multi-family development are regularly rented or offered for rent on a day -to-day basis.  [Amended November 12, 1985]

 

(44)  Independent Living Unit.  A unit providing a residential environment for ambulatory or disabled individuals at least fifty-five years of age who do not require health and support services located on the site, such as medical and nursing care, central dining, and transportation services.  Each unit is a self-contained dwelling unit that is physically accessible to older or disabled persons. [Amended August 14, 2001]

 

(45)  Intermediate Care.  Intermediate care is health-related care, outside of a conventional hospital, that is provided by supervised licensed personnel and does not require hospital or skilled nursing care on a regular basis.  It provides the opportunity to care for patients who do not need the facilities of high technology hospitals, but are not capable of being cared for in their own homes without extensive support.  It includes help with activities of daily living, including meals, dressing, personal hygiene, feeding, and medications.  [August 14, 2001]

 

(46)  Intermediate Care Home.  A facility maintained for the purpose of providing accommodations for not more than seven occupants needing medical care and supervision at a lower level than that provided in a nursing care institution but at a higher level than that provided in institu­tions for the handicapped or infirm.

 

(47)  Intermediate Care Institution.  An institutional facility maintained for the purpose of providing accommodations for more than seven persons needing medical care and supervision at a lower level than that provided in a nursing care institution but at a higher level than that provided in institutions for the handicapped or infirm.

 

(48)  Itinerant Merchant.  A person, other than a merchant with an established retail store in the town, who transports an inventory of goods to a building, vacant lot, or other location in the town and who, at that location, displays the goods for sale and sells the goods at retail or offers the goods for sale at retail.  [Amended August 13, 2002]

 

(49)  Kennel.  A commercial operation that: (i) provides food and shelter and care of animals for pur­poses not primarily related to medical care (a kennel may or may not be run by or associated with a veterinarian); or (ii) engages in the breeding of animals for sale.

 

(50)  Loading and Unloading Area.  That portion of the vehicle accommodation area used to satisfy the requirements of Section 16-300.

 

(51)  Lot.  A parcel of land whose boundaries have been established by some legal instrument such as a recorded deed or a recorded map and which is recognized as a separate legal entity for purposes of transfer of title.

 

Subject to Section 16-123, the permit-issuing authority and the owner of two or more contiguous lots may agree to regard the lots as one lot if necessary or convenient to comply with any of the requirements of this ordinance.

 

(52)  Lot Area.  The total area circumscribed by the boundaries of a lot, except that: (i) when the legal instrument creating a lot shows the boundary of the lot extending to the center of a public street right-of-way or into a public street right-of-way, then the lot boundary for the purposes of com­puting the lot area shall be the street right-of -way line, or a line running parallel to and thirty feet from the center of the traveled portion of the street if the right-of-way line cannot be deter­mined; and (ii) in a residential district, when a private road that serves more than three dwelling units is located along any lot boundary, then the lot boundary for purposes of computing the lot area shall be the inside boundary of the traveled portion of that road.

 

(53)  Low Volume Traffic Generation.  Uses such as furniture stores, carpet stores, major appliance stores, etc. that sell items that are large and bulky, that need a relatively large amount of storage or display area for each unit offered for sale, and that therefore generate less customer traffic per square foot of floor space than stores selling smaller items.

 

(54)  Major Renovation.  Work to restore or repair a structure estimated to cost more than twenty-five percent of the appraised valuation of that structure.  [Amended August 11, 1992]

 

(55)  Mobile Home.  Any structure that: (i) consists of a single unit completely assembled at the factory, or of two (double-wide) or three (triple-wide) principal components totally assembled at the fac­tory and joined together at the site; (ii) is designed so that the total structure (or in the case of double-wides or triple-wides, each component thereof) can be transported on its own chassis; (iii) is over 32 feet in length and over 8 feet in width; (iv) is designed to be used as a dwelling and provides complete, independent living facilities for one family including permanent provisions for living, sleeping, eating, cooking, and sanitation; (v) is actually being used or held ready for use as a dwelling; (vi) is not constructed in accordance with the standards set forth in the North Carolina State Building Code.

 

(56)  Mobile Home, Class A.  A mobile home constructed after July 1, 1976 that meets or exceeds the construction standards promulgated by the U.S. Department of Housing and Urban Develop­ment that were in effect at the time of construction and that satisfies the following additional criteria:

 

(a)  The mobile home has a length not exceeding four times its width;

(b)  The pitch of the mobile home’s roof has a minimum vertical rise of one foot for each five feet of horizontal run;

(c)  The exterior materials are of wood, hardboard, or aluminum comparable in composition, appearance, and durability to site built houses in the vicinity;

(d)  A continuous, permanent masonry foundation, unpierced except for required ventilation and access, is installed under the mobile home; and

(e)  The tongue, axles, transporting lights, and removable towing apparatus are to be removed subsequent to final placement.

 

(57)  Mobile Home, Class B.  A mobile home constructed after July 1, 1976 that meets or exceeds the construction standards promulgated by the U.S. Department of Housing and Urban Develop­ment that were in effect at the time of construction but that does not satisfy the criteria neces­sary to qualify the house as a class A mobile home.

 

(58)  Mobile Home, Class C.  Any mobile home that does not meet the definitional criteria of a class A or class B mobile home.

 

(59)  Mobile Home Park.  A multifamily residential use consisting of two or more detached mobile homes located on one lot.

 

(60)  Modular Home.  A single-family residence constructed in accordance with the standards set forth in the North Carolina State Building Code and composed of components substantially assembled in a manufacturing plant and transported to the building site for final assembly on a permanent foundation. Among other possibilities, a modular home may consist of two sections transported to the site in a manner similar to a mobile home (except that the modular home meets the N.C. State Building Code), or a series of panels or room sections transported on a truck and erected or joined together on the site.

 

(61)  Multifamily Conversion.  A multifamily residence containing not more than four dwelling units resulting from the conversion of a single building containing at least 2000 square feet of gross floor area that was in existence on the effective date of this ordinance and that was originally designed, constructed and occupied as a single-family residence.

 

(62)  Nonconforming Lot.  A lot existing at the effected date of this chapter (and not created for the purposes of evading the restrictions of this chapter) that does not meet the minimum area re­quirement of the district in which the lot is located.

 

(63)  Nonconforming Project.  Any structure, development, or undertaking that is incomplete on the effective date of this chapter and would be inconsistent with any regulation applicable to the district in which it is located if completed as proposed or planned.

 

(64)  Nonconforming Situation.  A situation that occurs when, on the effective date of this chapter, any existing lot or structure or use of an existing lot or structure does not conform to one or more of the regulations applicable to the district in which the lot or structure is located.  Among other possibilities, a nonconforming situation may arise because a lot does not meet minimum acreage requirements, because structures exceed maximum height limitations, because the relationship between existing buildings and the land (in such matters as density and set-back requirements) is not in conformity with this chapter, because signs do not meet the requirements of this chapter (Article XVII), or because land or buildings are used for purposes made unlawful by this chapter.

 

(65)  Nonconforming Use.  A nonconforming situation that occurs when property is used for a purpose or in a manner made unlawful by the use regulations applicable to the district in which the property is located.  (For example, a commercial office building in a residential district may be a nonconforming use.)  The term also refers to the activity that constitutes the use made of the property.  (For example, all the activity associated with operating a retail clothing store in a resi­dentially zoned area is a nonconforming use.)

 

(66)  Nursing Care Home.  A facility maintained for the purpose of providing skilled nursing care and medical supervision at a lower level than that available in a hospital to not more than nine per­sons.

 

(67)  Nursing Care Institution.  An institutional facility maintained for the purpose of providing skilled nursing care and medical supervision at a lower level than that available in a hospital to more than nine persons.

 

(68)  Overlay District.  A zoning district, as established in Section 16-139, which is applied only in conjunction with an underlying, general use zoning district and which may grant additional use or development requirements upon the underlying zoning district.  The effect is for both the overlay district and the underlying zoning district to control the use and development of a lot.  In the event of a conflict between the regulations of the overlay district and the underlying zoning district, the regulations of the overlay district shall prevail, regardless of whether they are more strict or less strict than the regulations of the underlying district. [Amended April 11, 2000]

 

(69)  Parking Area Aisles.  A portion of the vehicle accommodation area consisting of lanes providing access to parking spaces.

 

(70)  Parking Space.  A portion of the vehicle accommodation area set aside for the parking of one vehicle.

 

(71)  Planning jurisdiction.  The area within the town limits as well as the area beyond the city limits within which the town is authorized to plan for and regulate development, as set forth in Section 16-3.

 

(72)  Planned Unit Development.  A development constructed on a tract of at least five (5) acres under single ownership, planned and developed as an integral unit, and consisting of a combination of principal uses that could not be combined in any district other than a planned unit development district.

 

(73)  Public Water Supply System.  Any water supply system furnishing potable water to ten or more dwelling units or businesses or any combination thereof. (See G.S. 130A-311.)

 

(74)  Receive-Only Earth Station.  An antenna and attendant processing equipment for reception of electronic signals from satellites.

 

(75)  Residence, Multi-Family.  A residential use consisting of two dwelling units located in separate buildings on the same lot or three or more dwelling units located in one or more buildings on the same lot.

 

(76)  Residence, Single-Family.  A residential use consisting of a building containing one dwelling unit on a single lot.

 

(77)  Residence, Single-Family with Accessory Apartment.  A residential use having the external appearance of a single-family residence, but in which there is located a second dwelling unit that comprises not more than twenty-five percent of the gross floor area of the building nor more than a total of 750 square feet.

 

(78)  Residence, Two-Family.  A residential use consisting of two dwelling units within a single building on a single lot other than a single-family residence with accessory apartment.  Two dwelling units that are connected only by structural components designed to form a passageway (e.g., a covered walkway) rather than a place of occupancy (e.g., porch or garage) shall not be regarded as a two-family residence.

 

(79)  Restaurant.  A place where meals or food products are prepared, served, and eaten.

 

(80)  Road.  All private ways used to provide motor vehicle access to (i) two three or more lots or (ii) two or more distinct areas or buildings in unsubdivided developments.

 

(81)  Rooming House.  (See Boarding House)

 

(82)  Short-Term Rental of a Dwelling Unit.  The rental, lease, or use of an attached or detached residential dwelling unit for a duration that is less than 28 consecutive days.  Short-term rental use does not include rooming houses, boarding houses, or bed and breakfast establishments, which are specifically addressed as separate uses within the Table of Permissible Uses.  [Amended April 11, 2000]

 

(83)  Sign.  Any object, device, display, or structure that uses any color, form, graphic, illumination, symbol, or writing to advertise, to call attention to, to announce or identify the purpose of any person, place, or entity, or to communicate information of any kind to the public.  Any flag, streamer, pole, or architectural device shall be construed a sign when it is intended to draw attention to or announce or identify an enterprise.  [Amended March 11, 1997]

 

(84)  Sign, Freestanding.  A sign that is attached to, erected on, or supported by a structure (such as a pole, mast, frame, or other structure) that is not itself an integral part of or attached to a building or other structure whose principal function is something other than the support of a sign.  If the message is removed from a structure that was originally designed and used as a freestanding sign, this structure shall still be considered a sign.  Freestanding signs, as used in this Article, shall include the following:

 

(84.1)  Ground-mounted Sign.  A freestanding sign, supported by a contiguous structural base or planter box that is permanently affixed to the ground, shall be considered a ground-mounted sign.

 

(84.2)  Column Sign.  A sign supported by one or more columns or poles or other similar support.

[Amended April 10, 1985; Amended March 11, 1997]

 

(85)  Sign, Internally Illuminated.  Signs where the source of the illumination is inside the sign and light emanates through the message of the sign, rather than being reflected off the surface of the sign from an external source.  Without limiting the generality of the foregoing, signs that consist of or contain tubes that (i) are filled with neon or some other gas that glows when an electric current passes through it and (ii) are intended to form or constitute all or part of the message of the sign, rather than merely providing illumination to other parts of the sign that contain the message, shall also be considered internally illuminated signs.  [Amended April 10, 1985]

 

(86)  Sign, Nonconforming.  A sign that was erected legally but that does not comply with subsequently-enacted sign restrictions and regulations.  [Amended March 11, 1997]

 

(87)  Sign, Off-Premises.  A sign that communicates a commercial message about a business, service, commodity, accommodation, attraction, or other enterprise or activity that exists or is conducted, sold, offered, maintained or provided at a location other than the premises where the sign is located.  [Amended April 10, 1985; Amended March 11, 1997]

 

(88)  Sign, On-Premises.  A sign that draws attention to or communicates information about a business, service, commodity, accommodation, attraction, or other enterprise or activity that exists or is conducted, sold, offered, maintained, or provided on the premises where the sign is located.

 

(89)  Sign Permit.  A permit issued by the land use administrator that authorizes the recipient to erect, move, enlarge, or substantially alter a sign.

 

(90)  Skilled Nursing Care.  Skilled care is professionally supervised nursing care and related medical and other health services for persons who are assessed as needing 24-hour nursing care that can only be met in a long-term care facility on an inpatient basis. [Amended August 14, 2001]

 

(91)  Special Events.  Circuses, fairs, carnivals, festivals, or other types of special events that: (i) run for longer than one day, but not longer than two weeks; (ii) are intended to or likely to attract substantial crowds; and (iii) are unlike the customary or usual activities generally associated with the property where the special event is to be located.

 

(92)  Special Use Permit.  A permit issued by the board of adjustment that authorizes the recipient to make use of property in accordance with the requirements of this chapter as well as any additional requirements imposed by the board of adjustment.

 

(93)  Street.  A public Town street or a street with respect to which an offer of dedication has been made and accepted by the Town.

 

(94)  Shared Driveway.  A driveway shared between two single-family zoning lots.  See Section 16-294.

 

(95)  Street, Arterial.  A major street in the town's street system that serves as an avenue for the circulation of traffic onto, out, or around the town and carries high volumes of traffic.

 

(96)  Street, Collector.  A street whose principal function is to carry traffic between minor, local, and sub-collector streets and arterial streets, but that may also provide direct access to abutting properties. It serves or is designed to serve, directly or indirectly, more than one hundred dwell­ing units and is designed to be used or is used to carry more than eight hundred trips per day.

 

(97)  Street, Cul-de-sac.  A street that terminates in a vehicular turn-around.

 

(98)  Street, Local.  A street whose sole function is to provide access to abutting properties.  It serves or is designed to serve at least ten, but not more than twenty-five, dwelling units and is ex­pected to or does handle between seventy-five and two hundred trips per day.

 

(99)  Street, Marginal Access.  A street that is parallel to and adjacent to an arterial street and that is designed to provide access to abutting properties so that these properties are somewhat sheltered from the effects of the through traffic on the arterial street and so that the flow of traffic on the arterial street is not impeded by direct driveway access from a large number of abutting properties.

 

(100)  Street, Minor.  A street whose sole function is to provide access to abutting properties.  It serves or is designed to serve not more than nine dwelling units and is expected to or does handle up to seventy-five trips per day.

 

(101)  Street, Subcollector.  A street whose principal function is to provide access to abutting properties, but is also designed to be used or is used to connect minor and local streets with collector or arterial streets.  Including residences indirectly served through connecting streets, it serves or is designed to serve at least twenty-six, but not more than one hundred, dwelling units and is expected to or does handle between two hundred and eight hundred trips per day.

 

(102)  Structure.  Anything constructed or erected.

 

(103)  Subdivision.  The division of a tract of land into two or more lots, building sites, or other divi­sions for the purpose of sale or building development (whether immediate or future) and in­cluding all divisions of land involving the dedication of a new street or a change in existing streets; but the following shall not be included within this definition nor be subject to the regula­tions of this chapter applicable strictly to subdivisions: (i) the combination or recombination of portions of previously platted lots where the total number of lots is not increased and the resultant lots are equal to or exceed the minimum standards set forth in this chapter; (ii) the division of land into parcels greater than ten acres where no street right-of-way dedication is involved; or (iii) the public acquisition by purchase of strips of land for widening or opening streets; or (iv) the division of a tract in single ownership whose entire area is no greater than two acres into not more than three lots, where no street right-of-way dedication is involved and where the resultant lots are equal to or exceed the minimum standards set forth in this chapter.

 

(104)  Subdivision, Architecturally Integrated.  A subdivision in which all of the principal buildings are constructed in accordance with a master plan approved in conjunction with the permit that authorizes the development.  All of the uses within such a development must be permissible within the district where this use is located.

 

(105)  Subdivision, Major.   Any subdivision other than a minor subdivision.

 

(106)  Subdivision, Minor.  A subdivision that does not involve any of the following: (i) the creation of more than a total of three lots; (ii) the creation, dedication, or extension of any new street or road, whether public or private; (iii) the extension of a public water or sanitary sewer system other than laterals to individual lots; or (iv) the installation of drainage improvements that would require an easement across one or more lots to serve other lots.  In stating that a minor subdivision does not involve the “creation, dedication, or extension of any new street or road”, it means that adequate access to such lots is provided by an approved existing street (public or private) without the need for additions or improvements to existing street rights-of-way or easements.  [Amended August 13, 1996]

 

(107)  Temporary Emergency, Construction, or Repair Residence.  A residence (which may be a mobile home) that is: (i) located on the same lot as a residence made uninhabitable by fire, flood, or other natural disaster and occupied by the persons displaced by such disaster; or (ii) located on the same lot as a residence that is under construction or undergoing substantial repairs or reconstruction and occupied by the persons intending to live in such permanent residence when the work is completed; or (iii) located on a nonresidential construction site and occupied by persons having construction or security responsibilities over such construction site.

 

For purposes of this definition, "temporary" shall be construed to mean a period not to exceed 180 days subject to renewal by the Zoning Administrator.  [Amended April 8,1986]

 

(108)  Temporary Sign.  A sign that: (i) is used in connection with a circumstance, situation, or even that is designed, intended or expected to take place or to be completed within a reasonably short or definite period after the erection of such sign; or (ii) is intended to remain on the loca­tion where it is erected or placed for a period of not more than fifteen days.  If a sign display area is permanent but the message displayed is subject to periodic changes, that sign shall not be regarded as temporary.

 

(109)  Tourist Home.  A use that consists of at least one dwelling unit together with one or more, but not to exceed four (4), rooms that are rented out on a daily basis or weekly basis (with or without board) to tourist, vacationers, or similar transients, but which rooms, individually or collectively, do not constitute separate dwelling units.  [Amended February 11, 1986]

 

(110)  Tower.  [See Section 16-289.03(A)(9)]  [Amended May 13, 1997]

 

(111)  Townhouse - A unit in a non-vertically attached, multi-unit complex where the owner of the unit owns in severalty both the unit (including the entire physical structure) and the land on which the unit rests. The common areas are owned by the unit owners' association.

 

(112)  Townhouse development.  A development of a zoning lot that consists of two (2) or more attached dwelling units or buildings and appurtenances, each of which is located on its own individual lot, plus land developed and designated for the common use and benefit of the occupants of the townhouse lots, provided an entity is designated to be legally responsible for maintenance and control of the common land areas. The individual lots within a townhouse development shall not be required to meet the building setback requirements, minimum lot sizes, or minimum lot widths as specified in Article XII, provided the overall zoning lot containing the townhouse development meets such standards.

 

(113)  Tract.  A lot (see definition 39).  The term tract is used interchangeably with the term lot, par­ticularly in the context of subdivisions, where one "tract" is subdivided into several "lots."

 

(114)  Travel Trailer.  A structure that is: (i) intended to be transported over the streets and highways (either as a motor vehicle or attached to or hauled by a motor vehicle); and (ii) is designed for temporary use as sleeping quarters, but that does not satisfy one or more of the definitional criteria of a mobile home.

 

(115)  Two-Family Conversion.  A two-family residence resulting from the conversion of a single building containing at least 2000 square feet of gross floor area that was in existence on the effective date of this ordinance and that was originally designed, constructed and occupied as a single-family residence.

 

(116)  Use.  The activity or function that actually takes place or is intended to take place on a lot.

 

(117)  Use, Principal.  A use listed in the Table of Permissible Uses.

 

(118)  Utility Facilities.  Any above-ground structures or facilities (other than buildings, unless such buildings are used as storage incidental to the operation of such structures or facilities) owned by a governmental entity, a nonprofit organization, corporation, or any entity defined as a public utility for any purpose by Section 62-3 of the North Carolina General Statutes and used in con­nection with the production, generation, transmission, delivery, collection, or storage of water, sewage, electricity, gas, oil, or electronic signals. Excepted from this definition are utility lines and supporting structures listed in subsection 16-151(A)(2).

 

(119)  Utility Facilities, Neighborhood.  Utility facilities that are designed to serve the immediately sur­rounding neighborhood and that must, for reasons associated with the purpose of the utility in question, be located in or near the neighborhood where such facilities are proposed to be located.

 

(120) Utility Facilities, Community or Regional.  All utility facilities other than neighborhood facilities.

 

(121)  Value of a Sign.  The value for tax purposes of any sign so listed.  If tax value is not available, the value shall mean the original cost of the sign.  In the absence of information as to original cost submitted by the sign owner, the administrator shall estimate original cost based upon the best information reasonably available.  [Amended April 10, 1985]

 

(122)  Variance.  A grant of permission by the board of adjustment that authorizes the recipient to do that which, according to the strict letter of this chapter, he could not otherwise legally do.

 

(123)  Vehicle Accommodation Area.  That portion of a lot that is used by vehicles for access, circula­tion, parking and loading and unloading.  It comprises the total of circulation areas, loading and unloading areas, and parking areas.

 

(124)  Wholesale Sales.  On-premises sales of goods primarily to customers engaged in the business of reselling the goods.

 

(125)  Zoning lot.  A legally subdivided lot (not a tract) shown on a legally recorded plat or deed, or a combination of such legally subdivided and recorded adjacent lots.

 

(126)  Zoning Permit.  A permit issued by the land use administrator that authorizes the recipient to make use of property in accordance with the requirements of this chapter.

 

Section 16-16  Lots Divided by District Lines.

 

(A)  Whenever a single lot two acres or less in size is located within two or more different zoning districts, the district regulations applicable to the district within which the larger portion of the lot lies shall apply to the entire lot.

 

(B)  Whenever a single lot greater than two acres in size is located within two or more zoning districts, then:

 

(1)  If each portion of the lot located within a separate district is equal to or greater than the minimum lot size for that district, then each portion of the lot shall be subject to all the regulations applicable to the district in which it is located.

 

(2)  If any portion of the lot located within a separate district is smaller than the minimum lot size for that district, then such smaller portion shall be regarded as if it were in the same zoning district as the nearest larger portion to which it is attached.

 

(C)  This section applies only to lots created on or before the effective date of this chapter unless the board of adjustment, in a proceeding under Section 16-93 to determine district boundaries, concludes that a lot established after the effective date of this chapter was not created to bring additional lot area within a more intensive zoning district, or otherwise to take unfair or unwarranted advantage of the provisions of this section.

 

Sections 16-17 through 16-20 Reserved.

 

Article III - Administrative Mechanisms

 

Part I.  Planning Board

 

Section 16-21  Appointment and Terms of Planning Board Members

 

(A) There shall be a planning board consisting of eleven nine members.  Ten eight members, appointed by the Town Board, shall reside within the town limits.  One member, appointed by the Watauga County Board of Commis­sioners, shall reside within that portion of the town's extraterritorial planning area that lies within Watauga County.  If, despite good faith efforts, a resident of the extraterritorial planning area within each county can­not be found to fill the seat reserved for residents of such area, then the county board of commissioners may appoint any other resident of the county (including residents of the Town of Blowing Rock) to fill such seat.  If the county board fails to make an appointment within ninety days after receiving a resolution from the town Board requesting that an appointment be made, the Board may make the appointment.

 

(B)  Planning board members shall be appointed for three year staggered terms, but members may con­tinue to serve until their successors have been appointed.  Initially, four in-town residents and the Watauga County extraterritorial area resident shall be appointed for three year terms, three in-town residents shall be appointed for two year terms, and three in-town residents shall be appointed for one year terms.  Vacancies may be filled for the unexpired terms only.  [Amended July 9, 1985]

 

(C)  Members may be appointed to successive terms without limitation.

 

(D)  Planning board members may be removed by the Board at any time for failure to attend three con­secutive regularly scheduled meetings or for failure to attend four or more of the meetings within any twelve month period or for any other good cause related to performance of duties.  Upon request of the member pro­posed for removal the Board shall hold a hearing on the removal before it becomes effective.

 

(E)  All members may participate in and vote on all issues before the board, regardless of whether the issue affects property within the town or within the extraterritorial planning area.

 

[ Amended August 12, 2003 ]

 

Section 16-22  Meetings of the Planning Board

 

(A)  The planning board shall establish a regular meeting schedule and shall meet frequently enough so that it can take action in conformity with Section 16-66 (Applications to be Processed Expeditiously).

 

(B)  Since the board has only advisory authority, it need not conduct its meetings strictly in accordance with the quasi-judicial procedures set forth in Articles IV, V, and VI.  However, it shall conduct its meetings so as to obtain necessary information and to promote the full and free exchange of ideas.

 

(C)  Minutes shall be kept of all board proceedings.

 

(D)  All board meetings shall be open to the public, and whenever feasible the agenda for each board meeting shall be made available in advance of the meeting.

 

(E)  Whenever the board is called upon to make recommendations concerning a conditional use permit request, special use permit request, or a minor zoning amendment proposal, the staff shall post on or near the subject property one or more notices that are sufficiently conspicuous in terms of size, location, and con­tent to provide reasonably adequate notice to potentially interested persons of the matter that will appear on the board's agenda at a specified date and time.  Such notice(s) shall be posted at least seven days prior to the meeting at which the matter is to be considered.  The staff shall also send written notice to adjoining property owners if and to the extent required by any regulation or requirement of the planning board adopted under subsection 16-25(C).

 

Section 16-23  Quorum and Voting. 

 

(A) A quorum for the planning board shall consist of five in-town members if there are no vacant seats, four members if there are one or two vacant seats, and three members if there are more than two vacant seats.  A quorum is necessary for the board to take official action.

 

(B)  All actions of the planning board shall be taken by majority vote, a quorum being present.

 

(C) A roll call vote shall be taken upon the request of any member.

 

[ Amended August 12, 2003 ]

 

Section 16-24  Planning Board Officers.

 

(A)  At its first meeting in December of each year, the planning board shall, by majority vote of its membership (excluding vacant seats) elect one of its members to serve as chairman and preside over the board's meetings, one member to serve as vice-chairman, and one member to serve as secretary.  The persons so designated shall serve in these capacities for terms of one year, with eligibility for re-election.  Vacancies in these offices may be filled for the unexpired terms only by majority vote of the board membership (ex­cluding vacant seats).

 

(B)  The chairman, vice-chairman and secretary may take part in all deliberations and vote on all issues.

 

Section 16-25  Powers and Duties of Planning Board.

 

(A)  The planning board may:

 

(1)  Make studies and recommend to the Board plans, goals and objectives relating to the growth, development and redevelopment of the town and the surrounding extraterritorial planning area.

 

(2)  Develop and recommend to the Board policies, ordinances, administrative procedures and other means for carrying out plans in a coordinated and efficient manner.

 

(3)  Make recommendations to the Board concerning proposed conditional use permits and proposed zoning map changes, as provided by Sections 16-56 and 16-322.

 

(4)  To act as the Watershed Review Board on proposed plats of land subdivision and hear major and minor variance requests related to subdivisions within the designated Water Supply Watersheds.

 

(5)  To hear cases concerning major and minor variances, vested rights, administrative reviews and appeals involving the interpretation or application of the Watershed Protection Ordinance in designated Water Supply Watersheds.

 

(6)  Perform any other duties assigned by the Board.

 

(B)  The planning board shall, in conjunction with its annual budget request, submit to the board of com­missioners a progress report of its activities during the current fiscal year.  In addition, not later than thirty days after the close of the fiscal year, the planning board shall submit to the board of commissioners a report on its activities during the entire fiscal year just completed.

 

(C)  The planning board may adopt rules and regulations governing its procedures and operations not in­consistent with the provisions of the chapter.

 

[Amended March 11, 1997]

 

Sections 16-26 through 16-28 Reserved.

 

Part II.  Board of Adjustment

 

Section 16-29  Appointment and Terms of Board of Adjustment.

 

(A)  There shall be a board of adjustment consisting of seven members.  Five members, appointed by the Board, shall reside within the town.  The persons appointed as the Watauga County and Caldwell County ex­traterritorial area members of the planning board, respectively, shall also serve ex officio as members of the board of adjustment.

 

(B)  The board of commissioners shall also appoint three residents of the town to serve as alternate members of the board of adjustment.  Such alternate members may serve on the board in the absence of any member other than the extraterritorial planning area members and shall have and may exercise all the powers and duties of the member they replace.  [Amended January 12, 1999]

 

(C)  Board of adjustment members, as well as alternates, shall be appointed for three year staggered terms.  Initially, one in-town regular member and one alternate shall be appointed for three year terms, two in-town regular members shall be appointed for two year terms, and two regular in-town members and one alternate shall be appointed for one year terms. The terms of the extraterritorial planning area members shall run con­currently with their terms on the planning board.  Vacancies may be filled for the unexpired terms only.

 

(D)  Members may be reappointed to successive terms without limitation.

 

(E)  Board of adjustment members may be removed by the board of commissioners at any time for failure to attend three consecutive regularly scheduled meetings or for failure to attend four or more of the meetings within any twelve month period or for any other good cause related to performance of duties.  Upon request of the member proposed for removal, the board of commissioners shall hold a hearing on the removal before it becomes effective.  [Amended January 12, 1999]

 

(F)  Extraterritorial planning area members may vote only on matters pertaining to that portion of the extraterritorial planning area (Watauga or Caldwell Counties, respectively) that they represent.

 

Section 16-30  Meetings of the Board of Adjustment.

 

(A)  Meetings of the board of adjustment shall be held at the call of the chairman or vice chairman and at such other times as the board may determine; however, the board shall meet frequently enough so that it can take action in conformity with Section 16-66 (Applications to be Processed Expeditiously).

 

(B)  The board shall conduct its meetings in accordance with the quasi-judicial procedures set forth in Ar­ticles IV, V, and VI.

 

(C)  All meetings of the board shall be open to the public, and whenever feasible the agenda for each board meeting shall be made available in advance of the meeting.

 

Section 16-31  Quorum.

 

(A)  A quorum for the board of adjustment shall consist of four members (including any alternates) with respect to matters involving properties within the town and five members (including alternates) with respect to matters involving properties within the extraterritorial planning jurisdiction.  A quorum is necessary for the board to take official action.

 

(B)  A member who has withdrawn from the meeting without being excused as provided in Section 16-32 shall be counted as present for purposes of determining whether a quorum is present.

 

Section 16-32  Voting.

 

(A)  With respect to properties located within the town, the concurring vote of four members of the board (including alternates sitting in lieu of regular members) shall be necessary to reverse any order, requirement, decision, or determination of the administrator or to decide in favor of the applicant any matter upon which the board is required to pass under any ordinance (including the issuance of a special use permit) or to grant any variance.  With respect to properties located within the extraterritorial planning jurisdiction, the concurr­ing vote of five members (including alternates sitting in lieu of regular members) shall be necessary to take any of the foregoing actions.  All other actions of the board shall be taken by majority vote, a quorum being present.

 

(B)  Once a member is physically present at a board meeting, any subsequent failure to vote shall be recorded as an affirmative vote unless the member has been excused in accordance with subsection (C) or has been allowed to withdraw from the meeting in accordance with subsection (D).

 

(C)  A member may be excused from voting on a particular issue by majority vote of the remaining members present under the following circumstances:

 

(1)  If the member has a direct financial interest in the outcome of the matter at issue; or

 

(2)  If the matter at issue involves the member's own official conduct; or

 

(3)  If participation in the matter might violate the letter or spirit of a member's code of pro­fessional responsibility; or

 

(4)  If a member has such close personal ties to the applicant that the member cannot reasonably be expected to exercise sound judgment in the public interest.

 

(5)  If a regular member was not present at the hearing on a particular matter and an alternate member who was present at the hearing is available to take the place of the regular member.

 

(D)  A member may be allowed to withdraw from the entire remainder of a meeting by majority vote of the remaining members present for any good and sufficient reason other than the member's desire to avoid voting on matters to be considered at that meeting.

 

(E)  A motion to allow a member to be excused from voting or excused from the remainder of the meeting is in order only if made by or at the initiative of the member directly affected.

 

(F)  A roll call vote shall be taken upon the request of any member.

 

Section 16-33  Board of Adjustment Officers.

 

(A)  At its first regular meeting in December, the board of adjustment shall, by majority vote of its member­ship (excluding vacant seats), elect one of its members to serve as chairman and preside over the board's meetings, and one member to serve as vice-chairman. The persons so designated shall serve in these capacities for terms of one year. Vacancies may be filled for the unexpired terms only by majority vote of the board membership (excluding vacant seats).

 

(B)  The chairman or any member temporarily acting as chairman may administer oaths to witnesses com­ing before the board.

 

(C)  The chairman and vice-chairman may take part in all deliberations and vote on all issues.

 

Section 16-34  Powers and Duties of Board of Adjustment.

 

(A)  The board of adjustment shall hear and decide:

 

(1)  Appeals from any order, decision, requirement, or interpretation made by the administrator, as provided in Section 16-91.

 

(2)  Applications for special use permits, as provided in subsection 16-46(A).

 

(3)  Applications for variances, as provided in Section 16-92.

 

(4)  Questions involving interpretations of the zoning map, including disputed district boun­dary lines and lot lines, as provided in Section 16-93.

 

(5)  Any other matter the board is required to act upon by any other town ordinance.

 

(B)  The board may adopt rules and regulations governing its procedures and operations not inconsistent with the provisions of this chapter.

 

Sections 16-35 and 16-36 Reserved.

 

 

Part III.  Land Use Administrator

 

Section 16-37  Land Use Administrator.

 

­Except as other specifically provided, primary responsibility for administering and enforcing this chapter may be assigned to one or more individuals by the board of commissioners.  The person or persons to whom these functions are assigned shall be referred to in this chapter as the "land use administrator" or "ad­ministrator”.  The term "staff" is sometimes used interchangeably with the term "administrator”.

 

Section 16-38 Reserved.

 

Part IV.  Board of Commissioners

 

Section 16-39  Board of Commissioners.

 

(A)  The board of commissioners, in considering conditional use permit applications, acts in a quasi-judicial capacity and, accordingly, is required to observe the procedural requirements set forth in Articles IV and VI of this chapter.

 

(B)  In considering proposed changes in the text of this chapter or in the zoning map, the Board acts in its legislative capacity and must proceed in accordance with the requirements of Article XX.

 

(C)  Unless otherwise specifically provided in this chapter, in acting upon conditional use permit requests or in considering amendments to this chapter or the zoning map, the Board shall follow the regular voting and other requirements as set forth in other provisions of the town code, the town charter, or general law.

 

Part V.  Appearance Commission

 

Section 16-40  Membership and Vacancies.

 

(A)  There shall be an appearance advisory commission consisting of fifteen members, all of whom shall be citizens and residents of the town.  Members shall be appointed by the board of commissioners.  Five of the members shall be appointed for terms of one year, five for two years and five for three years.  Their suc­cessors shall be appointed for terms of three years.  Vacancies occurring for reasons other than the expiration of terms shall be filled as they occur for the period of the unexpired term.  It is desirable that one member be a member of a design profession.

 

(B)  In making appointments to the appearance advisory commission, the Board shall seek to appoint per­sons who possess qualities of impartiality, maturity and broad judgment, and in whom the community at large may be expected to have confidence.

 

(C)  Members may be reappointed to the appearance advisory commission upon the expiration of terms.  They may be removed from the commission by the mayor for due cause.  Faithful attendance at the meetings of the commission and conscientious performance of the duties of members shall be considered a prerequisite for continued membership on the commission.

 

(D)  Members of the commission shall serve without pay, but may be reimbursed for actual expenses inci­dent to the performance of their duties within the limits of funds available to the commission.

 

Section 16-41  Organization, Rules, Meetings and Records.

 

Within thirty days after its appointment, the appearance advisory commission shall meet and elect a chair­man, vice-chairman, secretary and treasurer.  It may create and fill such other offices as it may determine.  The term of each officer shall be one year.  They may be re-elected.  The commission shall adopt rules for the transaction of its business and shall keep a record of its members' attendance and of its resolutions, discus­sions, findings and recommendations, which records shall be open to the public.  The commission shall hold at least one meeting per month.  All of its meetings shall be open to the public.  For the purpose of taking any official action authorized or required by this article, there shall be present a quorum of eight members.

 

Section 16-42  Responsibilities and Duties

 

(A)  It shall be the responsibility and duty of the community appearance advisory commission:

 

(1)  To initiate, promote and assist in the implementation of general community beautifica­tion in the town and its environs.

 

(2)  To seek to coordinate the activities of individuals, agencies and organizations, public and private, whose plans, activities, and programs bear upon the appearance of the town and its environs.

 

(3)  To provide leadership and guidance in matters of area community design and appearance to individuals and to public and private organizations and agencies.

 

(4)  To make studies of the appearance characteristics and problems of the town and its en­virons, including surveys and inventories of an appropriate nature, and to recommend standards and policies of design for the town, any portion or neighborhood thereof, or any project to be undertaken.

 

(5)  To prepare both general and specific plans for the improved appearance of the town.

 

(6)  To make recommendations upon any permit or other item referred to the commission by the board of commissioners, planning board, board of adjustment, or administrator.

 

(7)  To take any other action authorized by this chapter or any other ordinance or resolution adopted by the board of commissioners.

 

(B)  The following specific duties are hereby conferred upon the appearance advisory commission:

 

(1)  To ask the proper officials of any public agencies of the state and its political subdivisions for plans for public buildings, facilities or projects to be located within the town.

 

(2)  To review such plans as well as permit applications referred to the commission and make recommendations regarding appearance suitability to the appropriate agency or to the planning board, board of adjustment or board of commissioners.  All plans shall be reviewed by the commission in a prompt and expeditious manner, and all recommendations of the commission with regard to any public project shall be made in writing.  Copies shall be transmitted promptly to the appropriate town board and to the appropriate agency.

 

(3)  To direct the attention of officials to the needed enforcement of any ordinance that may in any way affect the appearance of the town.

 

(4)  To seek voluntary adherence to the standards and policies of its plans.

 

(5)  To enter upon private land for the purpose of making examinations or surveys, with the consent and permission of the person in possession of such property.

 

(6)  To promote public interest in and an understanding of its recommendations, studies and plans, and to that end to prepare, publish and distribute to the public such studies and reports as will, in the opinion of the commission, advance the cause of improved municipal appearance.

 

(7)  To formulate and recommend to the town planning board and board of commissioners the adoption or amendment of ordinances regulating the use of property that will, in the opinion of the commission, serve to enhance the appearance of the town and its surroun­ding area.

 

Section 16-43  Annual Report and Budget.

 

(A)  In conjunction with the submission of the budget request, the commission shall submit to the board of commissioners a progress report of its activities during the present fiscal year.  A report of the entire fiscal year, July through June, shall be submitted to the board of commissioners no later than thirty days after the close of the fiscal year.

 

(B)  The commission may present requests to the board of commissioners no later than April 30 of each year for the purpose of incorporating in the budget future beautification, preservation, restoration and land­scaping projects to include establishment, maintenance and replacement of gardens.  Anticipated revenues for the next fiscal year from non-city sources shall be indicated.  The requests will be reviewed and, if approv­ed, recommended for inclusion in the proposed budget.

 

Section 16-44  Receipt and Expenditure of Funds.

 

The commission may receive contributions from private agencies, foundations, organizations, individuals, the state or federal government or any other source, in addition to any sums appropriated for its use by the board of commissioners.  It may accept and disburse these funds for any purpose within the scope of its authority as specified in this article.  All sums appropriated by the board of commissioners to further the work and pur­poses of the commission are deemed to be for a public purpose.

 

Part VI.  Architectural Review Commission

 

[Editor’s Note:  By Resolution No. 2000-02, adopted by the Board of Commissioners on February 15, 2000, the Architectural Review Commission was dissolved.  The duties of the Commission were assigned to the Zoning  Staff and the Board of Commissioners as provided in that resolution.]

 

Section 16-45.01  Membership and Vacancies

 

(A)  There shall be an Architectural Review Commission consisting of seven members, all of whom shall be citizens and residents of the Town.  Members shall be appointed by the Board of Commissioners.  It is desirable that one member be a member of a design profession.  It shall be a requirement that at least one member also be a member of the Appearance Commission.

 

(B)  Architectural Review Commission members shall be appointed for three year staggered terms.  Vacancies may be filled for the unexpired terms only.

 

(C)  Members may be reappointed to successive terms without limitation.  Members of the Commission shall serve without pay, but may be reimbursed for actual expenses incident to the performance of their duties within the limits of funds available to the Commission.

 

(D)  Architectural Review Commission members may be removed by the Board of Commissioners at any time for failure to attend three consecutive regularly scheduled meetings or for failure to attend four or more of the meetings within any twelve month period or for any other good cause related to performance of duties.  Upon request of the member proposed for removal, the Board of Commissioners shall hold a hearing on the removal before it becomes effective.

 

[Amended September 12, 1999; February 15, 2000]

 

Section 16-45.02  Meetings of the Architectural Review Commission.

 

(A)  The Architectural Review Commission shall establish a regular meeting schedule and shall meet frequently enough so that it can take action in conformity with Section 16-66 (Applications to be Processed Expeditiously).

 

(B)  Minutes shall be kept of all Commission proceedings.

 

(C)  All Commission meetings shall be open to the public and the agenda for each Commission meeting shall be made available at least 48 hours in advance of the meeting. 

 

(D)  Whenever the Commission is called upon to make a decision concerning a conditional use permit request or a significant change to the exterior of a commercial building (not including such minor changes such as a change in color, a change in signage, or the addition of a canopy), the staff shall send written notice to adjoining property owners at least ten days before the Commission meeting.  Such notice shall be sent to those persons (as listed on the real estate tax roll) who own property within 150 feet of the lot that is the subject of the application.

 

[Amended September 12, 1999]

 

Section 16-45.03  Quorum and Voting. 

 

(A)  A quorum for the Commission shall consist of four members if there are no vacant seats or one vacant seat, and three members if there are two or more vacant seats.  A quorum is necessary for the board to take official action. 

 

(B)  All actions of the Commission shall be taken by majority vote, a quorum being present.

 

(C)  A roll call vote shall be taken upon the request of any member.

 

[Amended September 12, 1999]

 

Section 16-45.04  Organization and Rules, Meetings and Records.

 

Within 30 days after its appointment, the Architectural Review Commission shall meet and elect a Chair­man and Vice-Chairman.  It may create and fill such other offices as it may determine.  The term of each officer shall be one year, and officers may be re-elected.  The Commission shall adopt rules for the transaction of its business and shall keep a record of its members' attendance and of its resolutions, discussions, findings and recommendations, which records shall be open to the public.

 

[Note: This Section was previously numbered as Section 16-45.02.  Amended September 12, 1999]

 

Section 16-45.05  Responsibilities and Duties.

 

(A)  It shall be the responsibility and duty of the Architectural Review Commission:

 

(1)  To make recommendations upon any item referred to the Commission by the Board of Commissioners, Planning Board, Board of Adjustment, Appearance Com­mission or Zoning Administrator.

 

(2)  To initiate, promote and assist in the implementation of standards and policies of design for the Town, any portion or neighborhood thereof, or any project to be undertaken. Pro­vided, however, such standards and policies shall not be applicable to single family dwellings.

 

(3)  To prepare both general and specific plans for the improved architectural appearance of the Town.

 

(4)  To take any other action authorized by this Chapter or any other ordinance or resolution adopted by the Board of Commissioners.

 

(B)  The following specific duties are hereby conferred upon the Architectural Review Commission:

 

(1)  To draft a set of regulations and guidelines pertaining to design standards and criteria for new construction and exterior changes to existing structures.  Such design standards and criteria shall include, but shall not be limited to, guidelines pertaining to types of building materials used, paint color, site location of any structures, drives and parking area, preservation of historical interest of neighborhood, landscaping requirements, or any other aspects of the construction process that may have an impact on whether the design of the proposed structure shall be compatible with or in harmony with existing structures in the area and/or any general or specific plans for the improved appearance of the Town.

 

(2)  To review building plans as well as permit applications referred to the Architectural Review Commission and make recommendations regarding suitability and compliance with the regulations and guidelines of the Commission to the appropriate agency or to the Planning Board, Board of Adjustment or Board of Commissioners.  All plans shall be reviewed by the Commission in a prompt and expeditious manner, and all recommen­dations of the Commission shall be made in writing.  Copies shall be transmitted prompt­ly to the appropriate Town Board and to the appropriate agency.  Provided, however, such design standards and criteria shall not be applicable to single family dwellings.

 

(3)  To enforce the provisions of this Chapter where such authority is granted to the Commission.

 

(4)  To formulate and recommend to the Town Planning Board and Board of Commissioners the adoption or amendment of ordinances regulating the use of property that will, in the opinion of the Commission, serve to enhance the appearance of the Town, preserve the natural beauty of the Town, and encourage highest and best development of property in the Town.

 

[Note: This Section was previously numbered as Section 16-45.03.  Amended September 12, 1999]

 

Section 16-45.06  Appeals from Decisions by the Architectural Review Commission

 

The appeal of a decision by the Architectural Review Commission may be taken to the Board of Commissioners in accordance with Section 16-91.02. 

[Amended September 12, 1999]

 

Section 16-45.07  Annual Report and Budget.

 

(A)  In conjunction with submission of the budget request, the Commission shall submit to the Board of Commissioners a progress report of its activities during the present fiscal year.  A report of the entire fiscal year, July through June, shall be submitted to the Board of Commissioners no later than 30 days after the close of the fiscal year.

 

(B)  The Commission may present requests to the Board of Commissioners no later than April 1 of each year for the purpose of incorporating in the budget future projects which would advance the purposes and goals of the Commission.  The requests will be reviewed and, if approved, recommended for inclusion in the proposed budget.

 

[Note:  This Section was previously numbered as Section 16-45.04.]

 

Part VII.  Conflicts of Interest

 

Section 16-45.10  Purpose

 

Service on a council, a board, or a commission of the Town of Blowing Rock is a public trust.  Members of governmental boards have a duty to represent the public interest fairly and honestly.  To protect the integrity of gov­ernmental decisions and to promote public confidence in the decisions, no board member shall use his or her position for private gain.  Further, board members shall refrain from actions that might reasonably call into question the impartiality and the fairness of those decisions.  To that end, this section establishes minimum standards that board members shall follow to avoid conflicts of interest in governmental decision making.  It is the intention of the governing board that this ordinance be liberally construed so as to accomplish its purpose of pro­tecting the public against governmental decisions affected by undue conflicts of interest.  [Enacted July 13, 1999]

 

Section 16-45.11  Applicability

 

(A)  This section shall apply to the citizen members of all "boards" of the Town of Blowing Rock.  For purposes of this section, "boards" includes the Town Council/Board of Commissioners, the Planning Board, the Board of Adjustment, the Appearance Commission, and the Architectural Review Commission. 

 

(B) This section shall apply to all board members serving on or after July 13, 1999.

 

[Enacted July 13, 1999]

 

Section 16-45.12  Participation in Decisions   

 

(A)  In order to preserve public confidence in the integrity of the governmental process, it shall be the duty of the member of every board covered by this section to avoid even the appearance of a conflict of interest.  Therefore no such member shall vote on, discuss, debate, advocate, influence, or otherwise partici­pate before the board on which he or she is a member in any matter that would substantially affect, directly or indirectly, his or her personal financial interests or the financial interests of a member of his or her household.  This prohibition includes formal and informal consideration of the matter by the board, whether conducted in public or in private.

 

This provision does not prohibit participation in legislative and advisory decisions that will have a similar effect on all citizens of Blowing Rock or in which the financial interest is so insignificant or remote that it is unlikely to affect the member's official actions in any way.

 

(B)  Regardless of whether a financial interest exists, no member may represent any other party as an advocate or agent on any matter being considered by the board on which he or she is a member.

 

[Enacted July 13, 1999]

 

Section 16-45.13  Quasi-Judicial Decisions

 

(A)  Members of boards making quasi-judicial decisions shall disqualify themselves from any matter in which their impartiality might reasonably be questioned.  Members shall therefore refrain from all participation in any matter in which they have any financial interest (direct or indirect), a personal bias or prejudice, or a personal or financial relationship with any of the parties or the parties' representatives.

 

(B)  In order to ensure a fair and unbiased hearing on the record of all quasi-judicial matters, board members making quasi-judicial decisions shall refrain from discussion of such matters with the parties thereto other than through the formal hearing process.

 

[Enacted July 13, 1999]

 

Section 16-45.14  Legal Opinions and Disqualification

 

(A)  Any official covered by this section may seek an opinion from the Town Attorney as to the applicability of this section to a particular decision or set of facts.  The response to such a request shall be made to the member making the request, and a copy shall be provided to the chair of the body to which the member belongs.

 

(B)  By majority vote, any Town board may seek the opinion of the Town Attorney as to the applicability of this section to a particular deci­sion or set of facts.

 

(C)  If an opinion is received from the Town Attorney that a mem­ber has an impermissible conflict of interest pursuant to this section and the member does not recuse himself or herself, the board may by majority vote disqualify that member from all participation in the matter involved.

 

[Enacted July 13, 1999]

 

Section 16-45.15 Enforcement

 

(A)  If a member participates in a decision in violation of this section, the decision of the board shall be void, and the matter shall be reheard without that member's participation.  If no objection to the member's participation has been filed with the board making the decision within ten days of the decision, this sec­tion shall be deemed to have been complied with.

 

(B) Any member who intentionally participates in a decision for which this section requires disqualification shall be guilty of a misdemeanor, punishable as provided in General Statutes Section 14-4.

 

[Enacted July 13, 1999]

 

Article IV - Permits and Final Plat Approval

 

Part I.  Zoning, Special Use, and Conditional Use Permits

 

Section 16-46  Permits Required.

 

(A)  Subject to Subsection (E) and Section 16-276 (Sign Permits), the use made of property may not be sub­stantially changed (see Section 16-152), substantial clearing, grading or excavation may not be commenced, and buildings or other substantial structures may not be constructed, erected, moved, or substantially altered except in accordance with and pursuant to one of the following permits:

 

(1)  A zoning permit issued by the administrator;

 

(2)  A special use permit issued by the board of adjustment;

 

(3)  A conditional use permit issued by the board of commissioners.

 

For purposes of this Section, buildings or other substantial structures within the CB, GB, or OI Districts shall be deem­ed "substantially altered", thereby requiring the issuance of a zoning permit, if the applicant proposes to change in any significant manner the exterior appearance of said building or other substantial structure.  More specifically, for example, a change in paint color of a building or other substantial structure within the CB, GB, or OI Districts shall require the issuance of a zoning permit by the administrator.  [Amended July 14, 1998]

 

(B)  Zoning permits, special use permits, conditional use permits and sign permits are issued under this chapter only when a review of the application submitted, including the plans contained therein, indicates that the develop­ment will comply with the provisions of this chapter if completed as proposed.  Such plans and applications as are finally approved are incorporated into any permit issued in reliance thereon, and except as otherwise provided in Section 16-64, all development shall occur strictly in accordance with such approved plans and applications.

 

(C)  Physical improvements to land to be subdivided may not be commenced except in accordance with a con­ditional use permit issued by the Board for major subdivisions or after final plat approval by the administrator for minor subdivisions (see Part II of this article).

 

(D)  A zoning permit, conditional use permit, special use permit, or sign permit shall be issued in the name of the applicant (except that applications submitted by an agent shall be issued in the name of the principal), shall identify the property involved and the proposed use, shall incorporate by reference the plans submitted, and shall contain any special conditions or requirements lawfully imposed by the permit-issuing authority.  All such permits issued with respect to tracts of land in excess of one acre (except sign permits and zoning permits for single-family and two-family residential uses) shall be recorded in the Watauga County or Caldwell County Registry, as appropriate after execution by the record owner.

 

(E)  The requirements of this section shall not apply to land within the ETA zoning district, except that sign permits shall be required to the extent provided for under Article XVII.  [Amended April 10, 1985 and January 14, 2003]

 

Section 16-47  No Occupancy, Use, or Sale of Lots Until Requirements Fulfilled.

 

Issuance of a conditional use, special use, or zoning permit authorizes the recipient to commence the activity resulting in a change in use of the land or (subject to obtaining a building permit) to commence work designed to construct, erect, move, or substantially alter buildings or other substantial structures or to make necessary im­provements to a subdivision.  However, except as provided in Sections 16-53, 16-60, and 16-61, the intended use may not be commenced, no building may be occupied, and in the case of subdivisions, no lots may be sold until all of the requirements of this chapter and all additional requirements imposed pursuant to the issuance of a con­ditional use or special use permit have been complied with.

 

Section 16-48  Who May Submit Permit Applications.

 

(A)  Applications for zoning, special use, conditional use, or sign permits or minor subdivision plat approval will be accepted only from persons having the legal authority to take action in accordance with the permit or the minor subdivision plat approval.  By way of illustration, in general this means that applications should be made by the owners or lessees of property, or their agents, or persons who have contracted to purchase property con­tingent upon their ability to acquire the necessary permits under this chapter, or the agents of such persons (who may make application in the name of such owners, lessees, or contract vendees).

 

(B)  The administrator may require an applicant to submit evidence of his authority to submit the application in accordance with subsection (A) whenever there appears to be a reasonable basis for questioning this authority.

 

Section 16-49  Applications To Be Complete.

 

(A)  All applications for zoning, special use, conditional use, or sign permits must be complete before the per­mit issuing authority is required to consider the application.

 

(B)  Subject to subsection (C), an application is complete when it contains all of the information that is necessary for the permit issuing authority to decide whether or not the development, if completed as proposed, will comply with all of the requirements of this chapter.

 

(C)  In this chapter, detailed or technical design requirements and construction specifications relating to various types of improvements (streets, sidewalks, etc.) are set forth in one or more of the appendices to this chapter.  It is not necessary that the application contain the type of detailed construction drawings that would be necessary to determine compliance with these appendices, so long as the plans provide sufficient information to allow the permit issuing authority to evaluate the application in the light of the substantive requirements set forth in this text of this chapter.  However, whenever this chapter requires a certain element of a development to be constructed in accordance with the detailed requirements set forth in one or more of these appendices, then no construction work on such element may be commenced until detailed construction drawings have been submitted to and approved by the administrator.  Failure to observe this requirement may result in permit revocation, denial of final subdivision plat approval, or other penalty as provided in Article VII.

 

(D)  The presumption established by this chapter is that all of the information set forth in Appendix A is necessary to satisfy the requirements of this section.  However, it is recognized that each development is unique, and therefore the permit issuing authority may allow less information or require more information to be submitted according to the needs of the particular case.  For applications submitted to the board of commissioners or board of adjustment, the applicant may rely in the first instance on the recommendations of the administrator as to whether more or less information than that set forth in Appendix A should be submitted.

 

(E)  The administrator shall make every effort to develop application forms, instructional sheets, checklists, or other techniques or devices to assist applicants in understanding the application requirements and the form and type of information that must be submitted.  In classes of cases where a minimal amount of information is necessary to enable the administrator to determine compliance with this chapter, such as applications for zoning permits to construct single-family or two-family houses or applications for sign permits, the administrator shall develop standard forms that will expedite the submission of the necessary plans and other required information.

 

Section 16-50  Staff Consultation Before Formal Application.

 

(A)  To minimize development planning costs, avoid misunderstanding or misinterpretation, and ensure com­pliance with the requirements of this chapter, preapplication consultation between the developer and the administrator is encouraged or required as provided in this section.

 

(B)  Before submitting an application for a conditional use permit authorizing a development that consists of or contains a major subdivision, the developer shall submit to the administrator a sketch plan of such subdivision, drawn approximately to scale (1" = 100 feet). The sketch plan shall contain:

 

(1)  The name and address of the developer;

 

(2)  The proposed name and location of the subdivision;

 

(3)  The approximate total acreage of the proposed subdivision;

 

(4)  The tentative street and lot arrangement;

 

(5)  Topographic lines;

 

(6)  Any other information the developer believes necessary to obtain the informal opinion of the ad­ministrator as to the proposed subdivision's compliance with the requirements of this chapter.

 

The administrator shall meet with the developer as soon as conveniently possible to review the sketch plan.

 

(C)  Before submitting an application for any other permit, developers are strongly encouraged to consult with the administrator concerning the application of this chapter to the proposed development.

 

Section 16-51  Staff Consultation After Application Submitted.

 

(A)  Upon receipt of a formal application for a zoning, special use, or conditional use permit, or minor plat approval, the administrator shall review the application and confer with the applicant to ensure that he understands the administrator's interpretation of the applicable requirements of this chapter, that he has submitted all of the information that he intends to submit, and that the application represents precisely and completely what he pro­poses to do.

 

(B)  If the application is for a special use or conditional use permit, the administrator shall place the application on the agenda of the appropriate board when the applicant indicates that the application is as complete as he in­tends to make it.  However, as provided in Section 16-56, if the administrator believes that the application is in­complete, he shall recommend to the appropriate board that the application be denied on that basis.

 

Section 16-52  Zoning Permits.

 

(A)  A completed application form for a zoning permit shall be submitted to the administrator by filing a copy of the application with the administrator in the inspections department.

 

(B)  If the permit is requested for a lot within the CB, GB, or OI District, the administrator may not issue the permit until the application has been referred to either the Appearance Commission or the Architectural Review Com­mission, depending upon the nature of the application request, and the Appearance Commission or Architectural Review Commission has been afforded a reasonable time to meet and confer with the developer on said application.  [Amended July 14, 1998]

 

(C)  The administrator shall issue the zoning permit unless he finds, after reviewing the application and con­sulting with the applicant as provided in Section 16-50, that:

 

(1)  The requested permit is not within his jurisdiction according to the Table of Permissible Uses; or

 

(2)  The application is incomplete; or

 

(3)  If completed as proposed in the application, the development will not comply with one or more requirements of this chapter (not including those requirements concerning which a variance has been granted or those the applicant is not required to comply with under the circumstances specified in Article VIII, Nonconforming Situations).

 

Section 16-53  Performance Bond to Ensure Compliance With Zoning Permit.

 

In cases when, because of weather conditions or other factors beyond the control of the zoning permit recipient (exclusive of financial hardship), it would be unreasonable to require the zoning permit recipient to comply with all of the requirements of this chapter prior to commencing the intended use of the property or occupying any buildings, the administrator may authorize the commencement of the intended use or the occupancy of buildings (insofar as the requirements of this chapter are concerned) if the permit recipient provides a performance bond, letter of credit, or other security satisfactory to the administrator to ensure that all of the requirements of this chapter will be fulfilled within a reasonable period (not to exceed twelve months) determined by the administrator.

 

Section 16-54  Special Use Permits and Conditional Use Permits.

 

(A)  An application for a special use permit shall be submitted to the board of adjustment by filing a copy of the application with the administrator in the inspections department.

 

(B)  An application for a conditional use permit shall be submitted to the board of commissioners by filing a copy of the application with the administrator in the inspections department.

 

(C)  Subject to subsection (D), the board of adjustment or the board of commissioners, respectively, shall issue the requested permit unless it concludes, based upon the information submitted at the hearing, that the permit should be denied because:

 

(1)  The requested permit is not within its jurisdiction according to the Table of Permissible Uses; or

 

(2)  The application is incomplete; or

 

(3)  If completed as proposed in the application, the development will not comply with one or more requirements of this chapter (not including those the applicant is not required to comply with under the circumstances specified in Article VIII, Nonconforming Situations); or

 

(D)  Even if the permit issuing board finds that the application complies with all other provisions of this ordinance, it may still deny the permit if it concludes, based upon the information submitted at the hearing, that if completed as proposed, the development, more probably than not:

 

(1)  Will materially endanger the public health or safety; or

 

(2)  Will substantially injure the value of adjoining or abutting property and such loss in property values is not outweighed by the benefit to the community from the proposed development; or

 

(3)  Will not be in harmony with the area in which it is to be located; or

 

(4)  Will not be in general conformity with the Master Plan or other plan officially adopted by the Board.

 

Section 16-55  Burden of Presenting Evidence; Burden of Persuasion.

 

(A)  The burden of presenting a complete application (as described in Section 16-49) to the permit issuing board shall be upon the applicant.  However, unless the board informs the applicant at the hearing in what way the application is incomplete and offers the applicant an opportunity to complete the application (either at that meeting or at a continuation hearing), the application shall be presumed to be complete.

 

(B)  Once a completed application has been submitted, the burden of presenting evidence to the permit issuing board sufficient to lead it to conclude that the application should be denied for the reasons stated in Subsections 16-54(C)(1), 54(C)(3), or 54(D) shall be upon the party or parties urging this position, unless the information presented by the applicant in his application and at the public hearing is sufficient to justify a reasonable conclu­sion that a reason exists to so deny the application.

 

(C)  The burden of persuasion on the issue of whether the development, if completed as proposed, will comply with the requirements of this chapter remains at all times on the applicant.  The burden of persuasion on the issue of whether the application should be turned down for any of the reasons set forth in Subsection 16-54(D) rests on the party or parties urging that the requested permit should be denied.

 

Section 16-56  Recommendations on Conditional and Special Use Permits.

 

(A)  Before being presented to the permit issuing board, an application for a conditional or special use permit shall be referred to the planning board for action in accordance with this section.  The permit issuing board may not hold a public hearing on a conditional or special use permit application until the planning board has had an opportunity to consider the application pursuant to standard agenda procedures.  In addition, at the request of the planning board, the permit issuing board may continue the public hearing to allow the planning board more time to consider or reconsider the application.

 

(B)  When presented to the planning board, the application shall be accompanied by a report setting forth the staff's proposed findings concerning the application's compliance with Section 16-49 and other requirements of this chapter, as well as any staff recommendations for additional requirements to be imposed by the permit is­suing board.  If the staff report proposes a finding or conclusion that the application fails to comply with Section 16-49 or any other requirement of this chapter, it shall identify the requirement in question and specifically state supporting reasons for the proposed findings or conclusions.

 

(C)  The planning board shall consider the application and the attached staff report in a timely fashion, and may, in its discretion, hear from the applicant or members of the public. [Notice to the adjoining property owners is provided for in subsection 16-22(E).]

 

(D)  After reviewing the application, the planning board shall report to the permit issuing board whether it concurs in whole or in part with the staff's proposed findings and conditions, and to the extent there are differences the planning board shall propose its own recommendations and the reasons therefor.

 

(E)  In response to the planning board's recommendations, the applicant may modify his application prior to submission to the permit issuing board, and the staff may likewise revise its recommendations.

 

(F)  With respect to special or conditional use permit applications for lots within the CB or OI zoning districts the per­mit issuing board shall, and with respect to permit applications for lots in other zoning districts the permit issuing board may, refer such applications to the appearance commission for its recommendation.  The permit issuing board may not issue a permit so referred until the appearance commission has been afforded a reasonable time to review the application and make its recommendations to the permit issuing board.  [Amended July 14, 1998]

 

(G)  With respect to Conditional Use Permit Applications for lots within the CB, GB, and OI Zoning Districts, the Board of Commissioners shall refer such applications to the Architectural Review Commission for its recom­mendation.  Such referral shall be in addition to and in conjunction with referral to the Planning Board for action in accordance with Subsections (A) through (E) above, and the applicant, in response to the Architectural Review Commission's recommendations, may modify his application prior to submission to the Board of Commissioners.  The Board of Commissioners may not issue a permit which has been referred to the Architectural Review Com­mission until said Commission has been afforded a reasonable time to review the application and make its recom­mendations to the Board of Commissioners.  [Amended November 15, 1988; July 14, 1998]

 

Section 16-57  Board of Commissioners Action On Conditional Use Permits.

 

(A)  In considering whether to approve an application for a conditional use permit, the Board of Commissioners shall proceed according to the following format:

 

(1)  The Board shall consider whether the application is complete.  If no member moves that the application be found incomplete (specifying either the particular type of information lacking or the particular requirement with respect to which the application is incomplete) then this shall be taken as an affirmative finding by the Board that the application is complete.

 

(2)  The Board shall consider whether the application complies with all of the applicable requirements of this chapter.  If a motion to this effect passes, the Board need not make further findings concern­ing such requirements.  If such a motion fails or is not made, then a motion shall be made that the application be found not in compliance with one or more of the requirements of this chapter.  Such a motion shall specify the particular requirements the application fails to meet.  Separate votes may be taken with respect to each requirement not met by the application.  It shall be conclusively presumed that the application complies with all requirements not found by the Board to be un­satisfied through this process.

 

(3)  If the Board concludes that the application fails to comply with one or more requirements of this chapter, the application shall be denied.  If the Board concludes that all such requirements are met, it shall issue the permit unless it adopts a motion to deny the application for one or more of the reasons set forth in Subsection 16-54(D).  Such a motion shall propose specific findings, based upon the evidence submitted, justifying such a conclusion.

 

Section 16-58  Board of Adjustment Action on Special Use Permits.

 

(A)  In considering whether to approve an application for a special use permit, the board of adjustment shall pro­ceed in the same manner as the Board when considering conditional use permit applications (Section 16-57), except that the format of the board of adjustment's proceedings will differ as a result of the four-fifths voting re­quirement set forth in subsection 16-32(A).

 

(1)  The board shall consider whether the application is complete.  If the board concludes that the ap­plication is incomplete and the applicant refuses to provide the necessary information, the applica­tion shall be denied.  A motion to this effect shall specify either the particular type of information lacking or the particular requirement with respect to which the application is incomplete.  A motion to this effect, concurred in by two members of the board, shall constitute the board's finding on this issue.  If a motion to this effect is not made and concurred in by at least two members, this shall be taken as an affirmative finding by the board that the application is complete.

 

(2)  The board shall consider whether the application complies with all of the applicable requirements of this ordinance.  If a motion to this effect passes by the necessary four-fifths vote, the board need not make further findings concerning such requirements.  If such a motion fails to receive the necessary four-fifths vote or is not made, then a motion shall be made that the application be found not in compliance with one or more requirements of this ordinance.  Such a motion shall specify the particular requirements the application fails to meet.  A separate vote may be taken with respect to each requirement not met by the application, and the vote of the two members in favor of such a motion shall be sufficient to constitute such motion a finding of the board.  It shall be con­clusively presumed that the application complies with all requirements not found by the board to be unsatisfied through this process.  As provided in subsection 16-54(C), if the board concludes that the application fails to meet one or more of the requirements of this ordinance, the application shall be denied.

 

(3)  If the board concludes that all such requirements are met, it shall issue the permit unless it adopts a motion to deny the application for one or more of the reasons set forth in Subsection 16-54(D).  Such a motion shall propose specific findings, based upon the evidence submitted, justifying such a conclusion.  Since such a motion is not in favor of the applicant, it is carried by a simple majority vote.

 

Section 16-59  Additional Requirements on Special Use and Conditional Use Permits.

 

(A)  Subject to subsection (B), in granting a special or conditional use permit, the board of adjustment or board of commissioners, respectively, may attach to the permit such reasonable requirements in addition to those specified in this chapter as will ensure that the development in its proposed location:

 

(1)  Will not endanger the public health or safety;

 

(2)  Will minimize any injury to the value of adjoining or abutting property;

 

(3)  Will be in harmony with the area in which it is located; and

 

(4)  Will be in conformity with the Town of Blowing Rock Master Plan, or other plan officially adopted by the Board.

 

(B)  The permit issuing board may not attach additional conditions that modify or alter the specific re­quirements set forth in this ordinance unless the development in question presents extraordinary circumstances that justify the variation from the specified requirements.

 

(C)  Without limiting the foregoing, the board may attach to a permit a condition limiting the permit to a specified duration.

 

(D)  All additional conditions or requirements shall be entered on the permit.

 

(E)  All additional conditions or requirements authorized by this section are enforceable in the same manner and to the same extent as any other applicable requirement of this chapter.

 

(F)  A vote may be taken on application conditions or requirements before consideration of whether the per­mit should be denied for any of the reasons set forth in Subsection 16-54(C)(3) or 16-54(D). Conditions may be im­posed by the board of adjustment (as well as the board of commissioners) by a simple majority vote.

 

Section 16-60  Authorizing Use, Occupancy, or Sale Before Completion of Development Under Special Use or Conditional Use Permits.

 

(A)  In cases when, because of weather conditions or other factors beyond the control of the special use or conditional use permit recipient (exclusive of financial hardship) it would be unreasonable to require the permit recipient to comply with all of the requirements of this chapter before commencing the intended use of the property or occupying any buildings or selling lots in a subdivision, the permit issuing board may authorize the commencement of the intended use or the occupancy of buildings or the sale of subdivision lots (insofar as the requirements of this chapter are concerned) if the permit recipient provides a performance bond, letter of credit or other security satisfactory to the board to ensure that all of these requirements will be fulfilled within a reasonable period (not to exceed twelve months).

 

(B)  When the board imposes additional requirements upon the permit recipient in accordance with Section 16-59 or when the developer proposes in the plans submitted to install amenities beyond those required by this chapter, the board may authorize the permittee to commence the intended use of the property or to occupy any building or to sell any subdivision lots before the additional requirements are fulfilled or the amenities installed if it specifies a certain date by which or a schedule according to which such requirements must be met or each amenity installed and if it concludes that compliance will be ensured as the result of any one or more of the following:

 

(1)  A performance bond or other security satisfactory to the board is furnished;

 

(2)  A condition is imposed establishing an automatic expiration date on the permit, thereby ensur­ing that the permit recipient's compliance will be reviewed when application for renewal is made;

 

(3)  The nature of the requirements or amenities is such that sufficient assurance of compliance is given by Section 16-114 (Penalties and Remedies For Violations) and Section 16-115 (Permit Revocation).

 

(C)  With respect to subdivisions in which the developer is selling only underdeveloped lots, the Board may authorize final plat approval and the sale of lots before all the requirements of this chapter are fulfilled if the sub­divider provides a performance bond or other security satisfactory to the Board to ensure that all of these re­quirements will be fulfilled within not more than twelve months after final plat approval.

 

Section 16-61  Completing Developments in Phases.

 

(A)  If a development is constructed in phases or stages in accordance with this section, then, subject to subsection (C), the provisions of Section 16-47 (No Occupancy, Use, or Sale of Lots Until Requirements Fulfilled) and Section 16-60 (exceptions to Section 16-47) shall apply to each phase as if it were the entire development.

 

(B)  As a prerequisite to taking advantage of the provisions of subsection (A), the developer shall submit plans that clearly show the various phases or stages of the proposed development and the requirements of this chapter that will be satisfied with respect to each phase or stage.

 

(C)  If a development that is to be built in phases or stages includes improvements that are designed to relate to, benefit, or be used by the entire development (such as a swimming pool or tennis courts in a residential develop­ment) then, as part of his application for development approval, the developer shall submit a proposed schedule for completion of such improvements.  The schedule shall relate completion of such improvements to completion of one or more phases of stages of the entire development.  Once a schedule has been approved and made part of the permit by the permit issuing authority, no land may be used, no buildings may be occupied, and no subdivi­sion lots may be sold except in accordance with the schedule approved as part of the permit, provided that:

 

(1)  If the improvement is one required by this chapter then the developer may utilize the provisions of subsections 16-60(A) or 16-60(C);

 

(2)  If the improvement is an amenity not required by this chapter or is provided in response to a con­dition imposed by the board, then the developer may utilize the provisions of subsection 16-60(B).

 

Section 16-62  Expiration of Permits.

 

(A)  Zoning, special use, conditional use, and sign permits shall expire automatically if, within one year after the issuance of such permits:

 

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

 

(2)  Less than ten percent of the total cost of all construction, erection, alteration, excavation, demoli­tion, or similar work on any development authorized by such permits has been completed on the site.  With respect to phased development (see Section 16-61), this requirement shall apply only to the first phase.

 

(B)  If, after some physical alteration to land or structures begins to take place, such work is discontinued for a period of one year, then the permit authorizing such work shall immediately expire.  However, expiration of the permit shall not affect the provisions of Section 16-63.

 

(C)  The permit issuing authority may extend for a period up to six months the date when a permit would otherwise expire pursuant to subsections (A) or (B) if it concludes that: (i) the permit has not yet expired; (ii) the permit recipient has proceeded with due diligence and in good faith; and (iii) conditions have not changed so substantially as to warrant a new application.  Successive extensions may be granted for periods of up to six months upon the same findings.  All such extensions may be granted without resort to the formal processes and fees re­quired for a new permit.

 

(D)  For purposes of this section, the permit within the jurisdiction of the board of commissioners or the board of adjustment is issued when such board votes to approve the application and issue the permit.  A permit within the jurisdiction of the zoning administrator is issued when the earlier of the following takes place:

 

(1)  A copy of the fully executed permit is delivered to the permit recipient; (delivery is accomplished when the permit is hand delivered or mailed to the permit applicant); or

 

(2)  The zoning administrator notifies the permit applicant that the application has been approved and that all that remains before a fully executed permit can be delivered is for the applicant to take cer­tain specified actions, such as having the permit executed by the property owner so it can be recorded if required under Section 16-46(D).

 

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

 

Section 16-63  Effect of Permit on Successors and Assigns.

 

(A)  Zoning, special use, conditional use and sign permits authorize the permittee to make use of land and structures in a particular way.  Such permits are transferable.  However, so long as the land or structures or any portion thereof covered under a permit continues to be used for the purposes for which the permit was granted, then:

 

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

 

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

 

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

 

Section 16-64  Amendments to and Modifications of Permits.

 

(A)  Insignificant deviations from the permit (including approved plans) issued by the board of commissioners, the board of adjustment, or the administrator are permissible and the administrator may authorize such insignifi­cant deviations.  A deviation is insignificant if it has no discernible impact on neighboring properties, the general public, or those intended to occupy or use the proposed development.

 

(B)  Minor design modifications or changes in permits (including approved plans) are permissible with the ap­proval of the permit issuing authority.  Such permission may be obtained without a formal application, public hear­ing, or payment of any additional fee.  For purposes of this section, minor design modifications or changes are those that have no substantial impact on neighboring properties, the general public, or those intended to occupy or use the proposed development.

 

(C)  All other requests for changes in approved plans will be processed as new applications.  If such requests are required to be acted upon by the board of commissioners or board of adjustment, new conditions may be im­posed in accordance with Section 16-59, but the applicant retains the right to reject such additional conditions by withdrawing his request for an amendment and may then proceed in accordance with the previously issued permit.

 

(D)  The administrator shall determine whether amendments to and modifications of permits fall within the categories set forth above in subsections (A), (B), and (C).

 

Section 16-65  Reconsideration of Board Action.

 

(A)  Whenever (i) the board of commissioners disapproves a conditional use permit application, or (ii) the board of adjustment disapproves an application for a special use permit or a variance, on any basis other than the failure of the applicant to submit a complete application, such action may not be reconsidered by the respective board at a later time unless the applicant clearly demonstrates that:

 

(1)  Circumstances affecting the property that is the subject of the application have substantially changed; or

 

(2)  The application is changed in some substantial way; or

 

(3)  New information is available that could not with reasonable diligence have been presented at a previous hearing.

 

Section 16-66  Applications to be Processed Expeditiously.

 

Recognizing that inordinate delays in acting upon appeals or applications may impose unnecessary costs on the appellant or applicant, the town shall make every reasonable effort to process appeals and permit applications as expeditiously as possible, consistent with the need to ensure that all development conforms to the requirements of this chapter.

 

Section 16-67  Maintenance of Common Areas, Improvements, and Facilities.

 

The recipient of any zoning, special use, conditional use, or sign permit, or his successor, shall be responsible for maintaining all common areas, improvements or facilities required by this chapter or any permit issued in accordance with its provisions, except those areas, improvements or facilities with respect to which an offer of dedication to the public has been accepted by the appropriate public authority.  As illustrations, and without limiting the generality of the foregoing, this means that private roads and parking areas, water and sewer lines, and recreational facilities must be properly maintained so that they can be used in the manner intended, and re­quired vegetation and trees used for screening, landscaping, or shading must be replaced if they die or are destroyed.

 

Section 16-68 through 16-75 Reserved.

 

Part II.  Major and Minor Subdivisions

 

Section 16-76  Regulation of Subdivisions.

 

Major subdivisions are subject to a two step approval process.  Physical improvements to the land to be sub­divided are authorized by a conditional use permit as provided in Part I of Article IV of this chapter, and sale of lots is permitted after final plat approval as provided in Section 16-79.  Minor subdivisions only require a one step approval process: final plat approval (in accordance with Section 16-78).

 

Section 16-77  No Subdivision Without Plat Approval.

 

(A)  As provided in G.S. 160A-375, no person may subdivide his land except in accordance with all of the pro­visions of this chapter.  In particular, no person may subdivide his land unless and until a final plat of the subdivi­sion has been approved in accordance with the provisions of Section 16-78 or Section 16-79 and recorded in the Watauga County or Caldwell County Registry, as applicable.

 

(B)  As provided in G.S. 160A-373, the Watauga County or Caldwell County Register of Deeds shall not record a plat of any subdivision within the town's planning jurisdiction unless the plat has been approved in accordance with the provisions of this chapter.

 

Section 16-78  Minor Subdivision Approval.

 

(A)  The administrator shall approve or disapprove minor subdivision final plats in accordance with the pro­visions of this section.

 

(B)  The applicant for minor subdivision plat approval, before complying with subsection (C), shall submit a sketch plan to the administrator for a determination of whether the approval process authorized by this section can be and should be utilized.  The administrator may require the applicant to submit whatever information is necessary to make this determination, including, but not limited to, a copy of the tax map showing the land be­ing subdivided and all lots previously subdivided from that tract of land within the previous five years.

 

(C)  Applicants for minor subdivision approval shall submit to the administrator a copy of a plat conforming to the requirements set forth in subsections 16-79(B) and (C) (as well as two prints of such plat), except that a minor subdivision plat shall contain the following certificates in lieu of those required in Section 16-80:

 

(1)  Certificate of Ownership

 

I hereby certify that I am the owner of the property described hereon, which property is within the subdivision regulation jurisdiction of the Town of Blowing Rock, and that I freely adopt this plan of subdivision.

 

______________________                      _______________________________________

          Date                                                                       Owner

 

(2)  Certificate of Approval

 

I hereby certify that the minor subdivision shown on this plat does not involve the creation of new


public streets or any change in existing public streets, that the subdivision shown is in all respects in compliance with Chapter 16 of the Blowing Rock Town Code, and that therefore this plat has been approved by the Town of Blowing Rock, subject to its being recorded in the Watauga/Caldwell County Registry within 30 days of the date below.

 

______________________                      _______________________________________

          Date                                                                   Administrator

 

(3)  A Certificate of Survey and Accuracy, in the form stated in subdivision 16-80(A)(3).

 

(D)  The administrator shall take expeditious action on an application for minor subdivision plat approval as provided in Section 16-66.  However, either the administrator or the applicant may at any time refer the applica­tion to the major subdivision approval process.

 

(E)  Within a period of five years no more than a total of three lots may be created out of one tract using the minor subdivision plat approval process.

 

(F)  Subject to subsection (D), the administrator shall approve the proposed subdivision unless the subdivision is not a minor subdivision as defined in Section 16-15 or the application or the proposed subdivision fails to comply with subsection (E) or any other applicable requirement of this chapter.

 

(G)  If the subdivision is disapproved, the administrator shall promptly furnish the applicant with a written statement of the reasons for disapproval.

 

(H)  Approval of any plat is contingent upon the plat being recorded within thirty days after the date the Certificate of Approval is signed by the administrator.

 

Section 16-79  Major Subdivision Approval Process.

 

(A)  The board of commissioners shall approve or disapprove major subdivision final plats in accordance with the provisions of this section.

 

(B)  The applicant for major subdivision plat approval shall submit to the administrator a final plat, drawn in waterproof ink on a sheet made of material that will be acceptable to the appropriate county register of deed's of­fice for recording purposes, and having dimensions as follows:  either (i) 21"x 30"; (ii) 12"x 18"; or (iii) 18"x 24".  When more than one sheet is required to include the entire subdivision, all sheets shall be made of the same size and shall show appropriate match marks on each sheet and appropriate references to other sheets of the subdivi­sion.  The scale of the plat shall be at one (1) inch equals not more than one hundred (100) feet.  The applicant shall also submit two prints of the plat.

 

(C)  In addition to the appropriate endorsements, as provided in Section 16-80, the final plat shall contain the following information:

 

(1)  All of the information specified in G.S. 47-30 and G.S. 39-32.3;

 

(2)  The name of the subdivision, which name shall not duplicate the name of any existing subdivision as recorded in the Watauga County or Caldwell County Registry, as applicable;

 

(3)  The name of the subdivision owner or owners;

 

(4)  The township, county and state where the subdivision is located; and

 

(5)  The name of the surveyor and his registration number and the date of the survey.

 

(D)  The Board shall approve the proposed plat unless it finds that the plat or the proposed subdivision fails to comply with one or more of the requirements of this chapter or that the final plat differs substantially from the plans and specifications approved in conjunction with the conditional use permit that authorized the development of the subdivision.

 

(E)  If the final plat is disapproved by the Board, the applicant shall be furnished with a written statement of the reasons for the disapproval and shall be given an opportunity to petition the Board for a hearing, to be con­ducted in accordance with the procedures for processing conditional use permit applications.  Following such hear­ing, the Board may reverse, modify, or affirm its earlier decision.

 

(F)  Approval of the final plat is contingent upon the plat being recorded within thirty (30) days after the ap­proval certificate is signed by the administrator.

 

Section 16-80  Endorsements on Major Subdivision Plats.

 

(A)  All major subdivision plats shall contain the endorsements listed in subdivision (1), (2), and (3) herein.  The endorsements listed in subdivision (4) shall appear on plats of all major subdivisions located outside the corporate limits of the town but within the planning jurisdiction.

 

(1)  Certificate of Approval

 

I hereby certify that all streets shown on this plat are within the Town of Blowing Rock's planning jurisdiction, all streets and other improvements shown on this plat have been installed or com­pleted or that their installation or completion (within twelve months after the date below) has been assured by the posting of a performance bond or other sufficient surety, and that the subdivision shown on this plat is in all respects in compliance with Chapter 16 of the Blowing Rock Town Code, and therefore this plat has been approved by the Blowing Rock Board of Commissioners, subject to its being recorded in the Watauga/Caldwell County Registry within 30 days of the date below.

 

______________________                      _______________________________________

          Date                                                                   Administrator

 

(2)  Certificate of Ownership and Dedication

 

I hereby certify that I am the owner of the property described hereon, which property is located within the subdivision regulation jurisdiction of the town of Blowing Rock, that I hereby freely adopt this plan of subdivision and dedicate to public use all areas shown on this plat as streets, alleys, walks, parks, open space, and easements, except those specifically indicated as private, and that I will maintain all such areas until the offer of dedication is accepted by the appropriate public authority.  All property shown on this plat as dedicated for a public use shall be deemed to be dedicated for any other public use authorized by law when such other use is approved by the Blow­ing Rock Board of Commissioners in the public interest.

 

______________________                      _______________________________________

          Date                                                                       Owner

                                                          _______________________________________

                                                                                      Notarized

 

(3)  Certificate of Survey and Accuracy

 

I hereby certify that this map (drawn by me) (drawn under my supervision) from (an actual survey made by me) (an actual survey made under my supervision) (a deed description recorded in Book ______, Page ______ of the __________ County Registry) (other); that the error of closure as calculated by latitudes and departures is 1: ______; that the bound­aries not surveyed are shown as broken lines plotted from information found in Book ______, Page ______      , and that this map was prepared in accordance with G.S. 47-30 as amended.  Witness my hand and seal this ________ day of ___________________, 19__.

 

                                                      _______________________________________

                                                             Registered Land Surveyor

 

 (4)  Division of Highways District Engineer Certificate

 

I hereby certify that the public streets shown on this plat have been completed, or that a perfor­mance bond or other sufficient surety has been posted to guarantee their completion, in accord­ance with at least the minimum specifications and standards of the N.C. State Department of Transportation for acceptance of subdivision streets on the State highway system for maintenance.

 

                                                      _______________________________________

                                                                  District Engineer

 

Section 16-81  Plat Approval Not Acceptance of Dedication Offers.

 

Approval of a plat does not constitute acceptance by the town of the offer of dedication of any streets, sidewalks, parks or other public facilities shown on a plat.  However, the town may accept any such offer of dedica­tion by resolution of the Board or by actually exercising control over and maintaining such facilities.

 

Section 16-82  Protection Against Defects.

 

(A)  Whenever (pursuant to Section 16-60) occupancy, use or sale is allowed before the completion of all facilities or improvements intended for dedication, then the performance bond or the surety that is posted pur­suant to Section 16-60 shall guarantee that any defects in such improvements or facilities that appear within one year after the dedication of such facilities or improvements is accepted shall be corrected by the developer.

 

(B)  Whenever all public facilities or improvements intended for dedication are installed before occupancy, use, or sale is authorized, then the developer shall post a performance bond or other sufficient surety to guarantee that he will correct all defects in such facilities or improvements that occur within one year after the offer of dedica­tion of such facilities or improvements is accepted.

 

(C)  A licensed architect or registered engineer retained by the developer shall certify to the town that all facilities and improvements to be dedicated to the town have been constructed in accordance with the requirements of this chapter.  This certification shall be a condition precedent to acceptance by the town of the offer of dedication of such facilities or improvements.

 

(D)  For purposes of this section, the term "defects" refers to any condition in publicly dedicated facilities or improvements that requires the town to make repairs in such facilities over and above the normal amount of maintenance that they would require.  If such defects appear, the guaranty may be enforced regardless of whether the facilities or improvements were constructed in accordance with the requirements of this chapter.

 

Section 16-83  Maintenance of Dedicated Areas Until Acceptance.

 

As provided in Section 16-67, all facilities and improvements with respect to which the owner makes an of­fer of dedication to public use shall be maintained by the owner until such offer of dedication is accepted by the appropriate public authority.

 

Section 16-84 through 16-90 Reserved.

 

Article V - Appeals, Variances, Interpretations

 

Section 16-91  Appeals from Final Orders or Decisions by the Administrator.

 

(A)  An appeal from any final order or decision of the administrator may be taken to the board of adjustment by any person aggrieved.  An appeal is taken by filing with the administrator and the board of adjustment a written notice of appeal specifying the grounds therefor.  A notice of appeal shall be considered filed with the administrator and the board of adjustment when delivered to the inspections department, and the date and time of filing shall be entered on the notice by the administrator.

 

(B)  An appeal must be taken within thirty days after the date of the decision or order appealed from.

 

(C)  Whenever an appeal is filed, the administrator shall forthwith transmit to the board of adjustment all the papers constituting the record relating to the action appealed from.

 

(D)  An appeal stays all actions by the administrator seeking enforcement of or compliance with the order or decision appealed from, unless the administrator certifies to the board of adjustment that (because of facts stated in the certificate) a stay would, in his opinion, cause imminent peril to life or property.  In that case, proceedings shall not be stayed except by order of the board of adjustment or a court, issued on application of the party seeking the stay, for due cause shown, after notice to the administrator.

 

(E)  The board of adjustment may reverse or affirm (wholly or partly) or may modify the order, requirement or decision or determination appealed from and shall make any order, requirement, decision or determination that in its opinion ought to be made in the case before it.  To this end, the board shall have all the powers of the officer from whom the appeal is taken.

 

Section 16-91.01  Appeals from Decisions by the Architectural Review Commission.

 

(A)  An appeal from a decision by the Architectural Review Commission may be taken to the Board of Commissioners by the person aggrieved.  An appeal is taken by filing with the Town Clerk a written notice of appeal specifying the grounds therefore.  A notice of appeal shall be considered filed with the Town Clerk when delivered to the Office of the Clerk, and the date and time of filing shall be entered on the notice.

 

In addition, the Board of Commissioners may initiate its own review of any decision made by the Architectural Review Commission to assure that said decision is consistent with the land use policies and procedures established by the Council.  The review may be initiated by the Board of Commissioners upon affirmative vote in open meeting. 

 

(B)  An appeal must be taken by the aggrieved person or a review must be initiated by the Board of Commissioners within fifteen days after the date of the decision from which the appeal or review is made.  In the event that an appeal is not taken by an aggrieved person or a review is not initiated by the Board of Commissioners within the fifteen-day period, then the decision by the ARC shall be deemed a final decision.  Provided, however, that the Board of Commissioners need not initiate a review of an ARC decision that is part of a pending conditional use permit application.  At such time that the conditional use permit is brought before the Board of Commissioners, the Board may reverse, affirm, or modify the ARC decision. 

 

(C)  Whenever an appeal is filed or a review is initiated, the Administrator shall forthwith transmit to the Board of Commissioners all of the papers and records related to the matter from which the appeal or review is taken.  Notice of the appeal or review shall be sent to adjoining property owners as required in Section 16-45.02(D).

 

(D)  An appeal or review stays the decision by the Architectural Review Commission until the Board of Commissioners takes action on such appeal or review.

 

(E)  The Board of Commissioners may reverse, affirm (wholly or partly), or modify the decision from which the appeal or review is taken.  To this end, the Board of Commissioners shall have all of the powers of the Architectural Review Commission related to the matter from which the appeal or review is taken.

 

[Adopted September 12, 1999]

 

Section 16-92  Variances.

 

(A)  An application for a variance shall be submitted to the board of adjustment by filing a copy of the applica­tion with the administrator in the inspections department.  Applications shall be handled in the same manner as applications for special use permits in conformity with the provisions of Sections 16-48, 16-49, and 16-56.

 

(B)  A variance may be granted by the board of adjustment if it concludes that strict enforcement of the ordinance would result in practical difficulties or unnecessary hardships for the applicant and that, by granting the variance, the spirit of the ordinance will be observed, public safety and welfare secured, and substantial justice done.  It may reach these conclusions if it finds that:

 

(1)  If the applicant complies strictly with the provisions of the ordinance, he can make no reasonable use of his property;

 

(2)  The hardship of which the applicant complains is one suffered by the applicant rather than by neighbors or the general public;

 

(3)  The hardship relates to the applicant's land, rather than personal circumstances;

 

(4)  The hardship is unique, or nearly so, rather than one shared by many surrounding properties;

 

(5)  The hardship is not the result of the applicant's own actions; and

 

(6)  The variance will neither result in the extension of a nonconforming situation in violation of Article VIII nor authorize the initiation of a nonconforming use of land.

 

(C)  In granting variances, the board of adjustment may impose such reasonable conditions as will ensure that the use of the property to which the variance applies will be as compatible as practicable with the surrounding properties.

 

(D)  A variance may be issued for an indefinite duration or for a specified duration only.

 

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

 

Section 16-93  Interpretations.

 

(A)  The board of adjustment is authorized to interpret the zoning map and to pass upon disputed questions of lot lines or district boundary lines and similar questions.  If such questions arise in the context of an appeal from a decision of the zoning administrator, they shall be handled as provided in Section 16-91.

 

(B)  An application for a map interpretation shall be submitted to the board of adjustment by filing a copy of the application with the administrator in the inspections department.  The application shall contain sufficient in­formation to enable the board to make the necessary interpretation.

 

(C)  Where uncertainty exists as to the boundaries of districts as shown on the Official Zoning Map, the follow­ing rules shall apply:

 

(1)  Boundaries indicated as approximately following the centerlines of alleys, streets, highways, streams, or railroads shall be construed to follow such center lines;

 

(2)  Boundaries indicated as approximately following lot lines, town limits or extraterritorial boundary lines shall be construed as following such lines, limits or boundaries;

 

(3)  Boundaries indicated as following shorelines shall be construed to follow such shorelines and in the event of change in the shoreline shall be construed as following such shorelines;

 

(4)  Where a district boundary divides a lot or where distances are not specifically indicated on the Official Zoning Map, the boundary shall be determined by measurement, using the scale of the Official Zoning Map;

 

(5)  Where any street or alley is hereafter officially vacated or abandoned, the regulation applicable to each parcel of abutting property shall apply to that portion of such street or alley added thereto by virtue of such vacation or abandonment.

 

(D)  Interpretations of the location of floodway and floodplain boundary lines may be made by the administrator as provided in Section 16-254.03.

 

Section 16-94  Requests to be Heard Expeditiously.

 

As provided in Section 16-66, the board of adjustment shall hear and decide all appeals, variance requests, and requests for interpretations as expeditiously as possible, consistent with the need to follow regularly estab­lished agenda procedures, provide notice in accordance with Article VI, and obtain the necessary information to make sound decisions.

 

Section 16-95  Burden of Proof in Appeals and Variances.

 

(A)  When an appeal is taken to the board of adjustment in accordance with Section 16-91, the administrator shall have the initial burden of presenting to the board sufficient evidence and argument to justify the order or decision appealed from.  The burden of presenting evidence and argument to the contrary then shifts to the ap­pellant, who shall also have the burden of persuasion.

 

(B)  The burden of presenting evidence sufficient to allow the board of adjustment to reach the conclusions set forth in Subsection 16-92(B), as well as the burden of persuasion on those issues, remains with the applicant seeking the variance.

 

Section 16-96  Board Action on Appeals and Variances.

 

(A)  With respect to appeals, a motion to reverse, affirm, or modify the order, requirement, decision, or deter­mination appealed from shall include, insofar as practicable, a statement of the specific reasons or findings of facts that support the motion.  If a motion to reverse or modify is not made or fails to receive the votes necessary for adoption (see Section 16-32), then a motion to uphold the decision appealed from shall be in order.  This motion is adopted as the board's decision if supported by two or more members.

 

(B)  Before granting a variance, the board must take a separate vote and vote affirmatively (by a 4/5th majority - see Section 16-32) on each of the six required findings stated in subsection 16-92(B).  Insofar as practicable, a motion to make an affirmative finding on each of the requirements set forth in subsection 16-92(B) shall include a statement of the specific reasons for findings of fact supporting such motion.

 

(C)  A motion to deny a variance may be made on the basis that any one or more of the six criteria set forth in subsection 16-92(B) are not satisfied or that the application is incomplete.  Insofar as practicable, such a mo­tion shall include a statement of the specific reasons or findings of fact that support it.  This motion is adopted as the board's decision if supported by two or more members.

 

Sections 16-97 through 16-100 Reserved.

 

Article VI - Hearing Procedures for Appeals and Applications

 

Section 16-101  Hearing Required on Appeals and Applications.

 

(A)  Before making a decision on an appeal or an application for a variance, special use permit, or conditional use permit, or a petition from the staff to revoke a special use permit or conditional use permit, the board of ad­justment or the board of commissioners as the case may be, shall hold a hearing on the appeal or application.

 

(B)  Subject to subsection (C), the hearing shall be open to the public and all persons interested in the outcome of the appeal or application shall be given an opportunity to present evidence and arguments and ask questions of persons who testify.

 

(C)  The board of adjustment or board of commissioners may place reasonable and equitable limitations on the presentation of evidence and arguments and the cross-examination of witnesses so that the matter at issue may be heard and decided without undue delay.

 

(D)  The hearing board may continue the hearing until a subsequent meeting and may keep the hearing open to take additional information up to the point a final decision is made.  No further notice of a continued hearing need be published unless a period of six weeks or more elapses between hearing dates.

 

Section 16-102  Notice of Hearing.

 

The administrator shall give notice of any hearing required by Section 16-101 as follows:

 

(1)  Notice shall be given to the appellant or applicant and any other person who makes a written request for such notice by mailing to such persons a written notice not later than ten days before the hearing.

 

(2)  Notice shall be given to neighboring property owners by mailing a written notice not later than ten days before the hearing to those persons who have listed for taxation real property any por­tion of which is located within 150 feet of the lot that is the subject of the application or appeal.  The administrator shall provide to the applicant a list of the names and addresses of such property owners and the applicant shall furnish the administrator with stamped envelopes properly addressed to such property owners.

 

(3)  Notice shall be given to other potentially interested persons by publishing a notice in a newspaper having general circulation in the area one time not less than seven nor more than fifteen days prior to the hearing.

 

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

 

Section 16-103  Evidence.

 

(A)  The provisions of this section apply to all hearings for which a notice is required by Section 16-101.

 

(B)  All persons who intend to present evidence to the permit issuing board, rather than arguments only, shall be sworn.

 

(C)  All findings and conclusions necessary to the issuance or denial of the requested permit or appeal (crucial findings) shall be based upon reliable evidence.  Competent evidence (evidence admissible in a court of law) shall be preferred whenever reasonably available, but in no case may crucial findings be based solely upon incompe­tent evidence unless competent evidence is not reasonably available, the evidence in question appears to be par­ticularly reliable, and the matter at issue is not seriously disputed.

 

Section 16-104  Modification of Application at Hearing.

 

(A)  In response to questions or comments by persons appearing at the hearing or to suggestions or recom­mendations by the board of commissioners or board of adjustment, the applicant may agree to modify his applica­tion, including the plans and specifications submitted.

 

(B)  Unless such modifications are so substantial or extensive that the permit issuing board cannot reasonably be expected to perceive the nature and impact of the proposed changes without revised plans before it, the board may approve the application with the stipulation that the permit will not be issued until plans reflecting the agreed upon changes are submitted to the staff.

 

Section 16-105  Record.

 

(A)  A tape recording shall be made of all hearings required by Section 16-101.  Accurate minutes shall also be kept of all such proceedings, but a transcript need not be made.

 

(B)  Whenever practicable, all documentary evidence presented at a hearing as well as all other types of physical evidence shall be made a part of the record of the proceedings.

 

(C)  Records made pursuant to this section shall be kept on file by the town for at least two years and may thereafter be disposed of only in accordance with G.S. 132-3.

 

Section 16-106  Written Decision.

 

(A)  Any decision made by the board of adjustment or board of commissioners regarding an appeal or variance or issuance or revocation of a conditional use permit or special use permit shall be reduced to writing and served upon the applicant or appellant and all other persons who make a written request for a copy.

 

(B)  In addition to a statement of the board's ultimate disposition of the case and any other information deemed appropriate, the written decision shall state the board's findings and conclusions, as well as supporting reasons or facts, whenever this chapter requires the same as a prerequisite to taking action.

 

Sections 16-107 through 16-110 Reserved.

 

Article VII - Enforcement and Review

 

Section 16-111  Complaints Regarding Violations.

 

Whenever the administrator receives a written, signed complaint alleging a violation of this chapter, he shall investigate the complaint, take whatever action is warranted, and inform the complainant in writing what actions have been or will be taken.

 

Section 16-112  Persons Liable.

 

The owner, tenant, or occupant of any building or land or part thereof and any architect, builder, contractor, agent or other person who participates in, assists, directs, creates, or maintains any situation that is contrary to the requirements of this chapter may be held responsible for the violation and suffer the penalties and be sub­ject to the remedies herein provided.

 

Section 16-113  Procedures Upon Discovery of Violations.

 

(A)  If the administrator finds that any provision of this chapter is being violated, he shall send a written notice to the person responsible for such violation, indicating the nature of the violation and ordering the action necessary to correct it.  Additional written notices may be sent at the administrator's discretion.

 

(B)  The final written notice (and the initial written notice may be the final notice) shall state what action the administrator intends to take if the violation is not corrected and shall advise that the administrator's decision or order may be appealed to the board of adjustment as provided in Section 16-91.

 

(C)  Notwithstanding the foregoing, in cases when delay would seriously threaten the effective enforcement of this ordinance or pose a danger to the public health, safety, or welfare, the administrator may seek enforcement without prior written notice by invoking any of the penalties or remedies authorized in Section 16-114.

 

Section 16-114  Penalties and Remedies for Violations.

 

(A)  Violations of the provisions of this chapter or failure to comply with any of its requirements, including violations of any conditions and safeguards established in connection with grants of variances or special use or conditional use permits, shall constitute a misdemeanor, punishable as provided in G.S. 14-4.

 

(B)  Any act constituting a violation of the provisions of this chapter or a failure to comply with any of its re­quirements, including violations of any conditions and safeguards established in connection with the grants of variances or special use or conditional use permits, shall also subject the offender to a civil penalty of one hundred at least $100.00 but not to exceed $500.00 dollars.  If the offender fails to pay this penalty within ten days after being cited for a violation, the penalty may be recovered by the town in a civil action in the nature of debt.  A civil penalty may not be appealed to the board of adjustment if the offender was sent a final notice of violation in accordance with Section 16-113 and did not take an appeal to the board of adjustment within the prescribed time. [Amended November 12, 2002]

 

(C)  This chapter may also be enforced by any appropriate equitable action.

 

(D)  Each day that any violation continues after notification that such violation exists by the administrator shall be considered a separate offense for purposes of the penalties and remedies specified in this section.

 

(E)  Any one, all, or any combination of the foregoing penalties and remedies may be used to enforce this chapter.

 

Section 16-115  Permit Revocation.

 

(A)  A zoning, sign, special use, or conditional use permit may be revoked by the permit issuing authority in accordance with the provisions of this section if the permit recipient fails to develop or maintain the property in accordance with the plans submitted, the requirements of this chapter, or any additional requirements lawfully imposed by the permit issuing board.

 

(B)  Before a conditional use or special use permit may be revoked, all of the notice and hearing and other re­quirements of Article VI shall be complied with.  The notice shall inform the permit recipient of the alleged grounds for the revocation.

 

(1)  The burden of presenting evidence sufficient to authorize the permit-issuing authority to conclude that a permit should be revoked for any of the reasons set forth in subsection (A) shall be upon the party advocating that position.  The burden of persuasion shall also be upon that party.

 

(2)  A motion to revoke a permit shall include, insofar as practicable, a statement of the specific reasons or findings of fact that support the motion.

 

(C)  Before a zoning or sign permit may be revoked, the administrator shall give the permit recipient ten days notice of intent to revoke the permit and shall inform the recipient of the alleged reasons for the revocation and of his right to obtain an informal hearing on the allegations.  If the permit is revoked, the administrator shall pro­vide to the permittee a written statement of the decision and the reasons therefor.

 

(D)  No person may continue to make use of land or buildings in the manner authorized by any zoning, sign, special use or conditional use permit after such permit has been revoked in accordance with this section.

 

Section 16-116  Judicial Review.

 

(A)  Every decision of the board of commissioners granting or denying a conditional use permit and every final decision of the board of adjustment shall be subject to review by the Superior Court of Watauga or Caldwell County, as appropriate, by proceedings in the nature of certiorari.

 

(B)  The petition for the writ of certiorari must be filed with the appropriate clerk of superior court within 30 days after the later of the following occurrences:

 

(1)  A written copy of the board's decision (see Section 16-106) has been filed in the office of the inspections department; and

 

(2)  A written copy of the board's decision (see Section 16-106) has been delivered, by personal ser­vice or certified mail, return receipt requested, to the applicant or appellant and every other aggrieved party who has filed a written request for such copy at the hearing of the case.

 

(C)   A copy of the petition for the writ of certiorari and the writ of certiorari shall be served upon the Town of Blowing Rock.

 

Section 16-117 Schedule of Civil Penalties

 

Illegal signs and banners                                                            $100.00

Itinerant merchant sales                                                 $100.00

Storage of junked cars outside of enclosed structure                  $100.00

Filling in the designated floodway                                              $250.00

Using a travel trailer as a residence                                            $250.00

Removing a protected tree                                                        $500.00

Removal of required buffer                                                        $500.00

Short-term rental violation                                                         $500.00

Working without a permit (single-family)                                    $100.00 plus double permit fees

Working without a permit (commercial)                                     $500.00 plus double permit fees

Any other violation of Land Use Ordinance                               $100.00

First repeat violation(s) after initial compliance                           250% of original penalty

Second repeat violation(s) after initial compliance                      500% of original penalty

 

Each day the violation continues is considered a separate offense [Adopted November 12, 2002]

 

Sections 16-118 through 16-120 Reserved.

 

Article VIII - Nonconforming Situations

 

Section 16-121  Definitions.

 

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

 

(1)  Dimensional Nonconformity.  A nonconforming situation that occurs when the height, size, or minimum floor space of a structure or the relationship between an existing building or buildings and other buildings or lot lines does not conform to the regulations applicable to the district in which the property is located.

 

(2)  Effective Date of This Chapter.  Whenever this article refers to the effective date of this chapter, the reference shall be deemed to include the effective date of any amendments to this chapter if the amendment, rather than this chapter as originally adopted, creates a nonconforming situation.

 

(3)  Expenditure.  A sum of money paid out in return for some benefit or to fulfill some obligation.  The term also includes binding contractual commitments to make future expenditures as well as any other substantial changes in position.

 

(4)  Nonconforming Lot.  A lot existing at the effective date of this chapter (and not created for the pur­poses of evading the restrictions of this chapter) that does not meet the minimum area require­ment of the district in which the lot is located.

 

(5)  Nonconforming Project.  Any structure, development, or undertaking that is incomplete at the effective date of this chapter and would be inconsistent with any regulation applicable to the district in which it is located if completed as proposed or planned.

 

(6)  Nonconforming Sign.  A sign (see Section 16-272 for definition) that, on the effective date of this chapter, does not conform to one or more of the regulations set forth in this chapter, particularly Article XVII, Signs.

 

(7)  Nonconforming Use.  A nonconforming situation that occurs when property is used for a purpose or in a manner made unlawful by the use regulations applicable to the district in which the pro­perty is located.  (For example, a commercial office building in a residential district may be a nonconforming use.)  The term also refers to the activity that constitutes the use made of the property.  (For example, all the activity associated with operating a retail clothing store in a residentially zoned area is a nonconforming use.)

 

(8)  Nonconforming Situation.  A situation that occurs when, on the effective date of this chapter, an existing lot or structure or use of an existing lot or structure does not conform to one or more of the regulations applicable to the district in which the lot or structure is located.  Among other possibilities, a nonconforming situation may arise because a lot does not meet minimum acreage requirements, because structures exceed maximum height limitations, because the relationship between existing buildings and the land (in such matters as density and set-back requirements) is not in conformity with this chapter, or because land or buildings are used for purposes made unlawful by this chapter.  Nonconforming signs shall not be regarded as nonconforming situations for purposes of this article but shall be governed by the provisions of Sections 16-286 and 16-287.  [Amended April 10, 1985]

 

Section 16-122  Continuation of Nonconforming Situations and Completion of Nonconforming Projects.

 

(A)  Except as otherwise specifically provided in this chapter, nonconforming situations that were otherwise lawful on the effective date of this chapter may be continued, subject to the restrictions and qualifications set forth in Sections 16-123 and 16-129.

 

(B)  Nonconforming projects may be completed only in accordance with the provisions of Section 16-128.

 

Section 16-123  Nonconforming Lots.

 

(A)  When a nonconforming lot can be used in conformity with all of the regulations applicable to the intended use, except that the lot is smaller than the required minimums set forth in Section 16-181, then the lot may be used as proposed just as if it were conforming.  However, no use (e.g., a two-family residence) that requires a greater lot size than the established minimum lot size for a particular zone is permissible on a nonconforming lot.

 

(B)  When the use proposed for a nonconforming lot is one that is conforming in all other respects but the applicable setback requirements (Section 16-184) cannot reasonably be complied with, then the entity authorized by this chapter to issue a permit for the proposed use, (the administrator, board of adjustment, or board of com­missioners) may allow deviations from the applicable setback requirements if it finds that:

 

(1)  The property cannot reasonably be developed for the use proposed without such deviations;

 

(2)  These deviations are necessitated by the size or shape of the nonconforming lot; and

 

(3)  The property can be developed as proposed without any significantly adverse impact on surround­ing properties or the public health or safety.

 

(C)  For purposes of subsection (B), compliance with applicable building setback requirements is not reasonably possible if a building that serves the minimal needs of the use proposed for the nonconforming lot cannot prac­ticably be constructed and located on the lot in conformity with such setback requirements.  However, mere financial hardship does not constitute grounds for finding that compliance is not reasonably possible.

 

(D)  This section applies only to undeveloped nonconforming lots.  A lot is undeveloped if it has no substan­tial structures upon it.  A change in use of a developed nonconforming lot may be accomplished in accordance with Section 16-126.

 

(E)  Subject to the following sentence, if, on the date this section becomes effective, an undeveloped non­conforming lot adjoins and has continuous frontage with one or more other undeveloped lots under the same ownership, then neither the owner of the nonconforming lot nor his successors in interest may take advantage of the provisions of this section.  This subsection shall not apply to a nonconforming lot if a majority of the developed lots located on either side of the street where such lot is located and within 500 feet of such lot are also noncon­forming.  The intent of this subsection is to require nonconforming lots to be combined with other undeveloped lots to create conforming lots under the circumstances specified herein, but not to require such combination when that would be out of character with the way the neighborhood has previously been developed.

 

Section 16-124  Extension or Enlargement of Nonconforming Situations.

 

(A)  Except as specifically provided in this section, no person may engage in any activity that causes an in­crease in the extent of nonconformity of a nonconforming situation.  In particular, physical alteration of struc­tures or the placement of new structures on open land is unlawful if such activity results in:

 

(1)  An increase in the total amount of space devoted to a nonconforming use; or

 

(2)  Greater nonconformity with respect to dimensional restrictions such as setback requirements, height limitations or density requirements or other requirements such as parking requirements.

 

(B)  Subject to subsection (D) a nonconforming use may be extended throughout any portion of a completed building that, when the use was made nonconforming by this chapter, was manifestly designed or arranged to accommodate such use.  However, subject to Section 16-128 (authorizing the completion of nonconforming pro­jects in certain circumstances), a nonconforming use may not be extended to additional buildings or to land outside the original building.

 

(C)  Subject to Section 16-128 (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, except that a use that involves the removal of natural materials from the lot (e.g., a sand pit) may be expanded to the boundaries of the lot where the use was established at the time it became noncon­forming if ten percent or more of the earth products had already been removed at the effective date of this chapter.

 

(D)  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 section occur. [Amended September 14, 2004]

 

(E)  Notwithstanding subsection (A), any structure used for single-family residential purposes and maintained as a nonconforming use may be enlarged or replaced with a similar structure of a larger size, so long as the enlarge­ment or replacement does not create new nonconformities or increase the extent of existing nonconformities with respect to such matters as setback and parking requirements.  (For example, a single-story dwelling that encroaches into one or more applicable setbacks may be replaced within the previous footprint.  However, a second story may only be built if the applicable setbacks are met.) This paragraph is subject to the limitations stated in Section 16-127 (abandonment and discontinuance of nonconforming situations). [Amended September 14, 2004]

 

(F)  Notwithstanding subsection (A), whenever: (i) there exists a lot with one or more structures on it; and (ii) a change in use that does not involve any enlargement of a structure is proposed for such lot; and (iii) the parking requirements of Article XVIII that would be applicable as a result of the proposed change cannot be satisfied on such lot because there is not sufficient area available on the lot that can practicably be used for parking, then the proposed use shall not be regarded as resulting in an impermissible extension or enlargement of a nonconforming situation.  However; the applicant shall be required to comply with all applicable parking requirements that can be satisfied without acquiring additional land, and shall also be required to obtain satellite parking in accordance with Section 16-298 if: (i) parking requirements cannot be satisfied on the lot with respect to which the permit is required; and (ii) such satellite parking is reasonably available.  If such satellite parking is not reasonably avail­able at the time the zoning or special or conditional use permit is granted, then the permit recipient shall be required to obtain it if and when it does become reasonably available.  This requirement shall be a continuing condition of the permit.

 

Section 16-125  Repair, Maintenance and Reconstruction.

 

(A)  Minor repairs to and routine maintenance of property where nonconforming situations exist are per­mitted and encouraged and may require a Zoning Permit or Conditional Use Permit.  Major renovation may be done only in accordance with a Zoning Permit issued pursuant to this section.  Major renovation takes place when the costs of renovation would exceed fifty percent of the appraised valuation of the existing structure. [Amended August 11, 1992, and December 10, 2002]

 

(B)  If a structure located on a lot where a nonconforming situation exists is damaged by fire, natural disaster, or act of God, to an extent that the costs of repair or replacement would exceed fifty twenty-five percent of the appraised valuation of the pre-damaged struc­ture, then the damaged structure may be repaired or replaced only in accordance with a zoning permit or conditional use permit issued pursuant to this section.  A structure damaged by fire, natural disaster, or act of God, may be built back to the existing building footprint and may be enlarged as provided in Section 16-124.  This subsection does not apply to structures used for single-family residential purposes, which structures may be reconstructed pursuant to a zoning permit just as they may be enlarged or replaced as provided in subsection 16-124(E). [Amended December 10, 2002]

 

(C)  For purposes of subsections (A) and (B):

 

(1)  The "cost" of renovation or repair or replacement shall mean the fair market value of the materials and services necessary to accomplish such renovation, repair; or replacement.

 

(2)  The "cost" of renovation or repair or replacement shall mean the total cost of all such intended work, and no person may seek to avoid the intent of subsections (A) or (B) by doing such work incrementally.

 

(3)  The "appraised valuation" shall mean either the appraised valuation for property tax pur­poses, updated as necessary by the  increase in the consumer price index Watauga County tax model since the date of the last valuation, or the valuation determined by a professionally recognized property North Carolina state certified general appraiser. [Amended December 10, 2002]

 

(4)  Subsections (A) and (B) do not apply to structures located in a designated Flood Hazard Area.  The repair, maintenance, or reconstruction of structures in a Flood Hazard Area may only be completed pursuant to Article XVI, Part I. Flood Damage Prevention, of this chapter. [Amended December 10, 2002]

 

(D)  The permit issuing authority administrator shall issue a permit authorized by this section if it he finds that, in completing the renovation, repair or replacement work: [Amended December 10, 2002]

 

(1)  No violation of Section 16-124 will occur; and

 

(2)  The permittee will comply to the extent reasonably possible with all provisions of this chapter applicable to the existing structure and use (except that the permittee shall not lose his right to continue a non­conforming use). This subsection does not apply to structures used for single-family residential purposes, which structures may be reconstructed pursuant to a zoning permit just as they may be enlarged or replaced as provided in subsection 16-124(E).  Also, the application of this subsection shall not cause a permittee to lose his right to continue a nonconforming use. [Amended December 10, 2002]

 

Compliance with a requirement of this chapter is not reasonably possible if compliance cannot be achieved without adding additional land to the lot where the nonconforming situation is maintained or moving a substantial struc­ture that is on a permanent foundation.  Mere financial hardship caused by the cost of meeting such requirements as paved parking does not constitute grounds for finding that compliance is not reasonably possible.

 

Section 16-126  Change in Use of Property Where a Nonconforming Situation Exists.

 

(A)  A change in use of property that is sufficiently substantial to require a new zoning, special use, or con­ditional use permit in accordance with Section 16-46 may not be made except in accordance with subsections (B) through (D).  However, this requirement shall not apply if only a sign permit is needed.

 

(B)  If the intended change in use is to a principal use that is permissible in the district where the property is located, and all of the other requirements of this chapter applicable to that use can be complied with, permis­sion to make the change must be obtained in the same manner as permission to make the initial use of a vacant lot.  Once conformity with this chapter is achieved, the property may not revert to its nonconforming status.

 

(C)  If the intended change in use is to a principal use that is permissible in the district where the property is located, but all of the requirements of this chapter applicable to that use cannot reasonably be complied with, then the change is permissible if the entity authorized by this chapter to issue a permit for that particular use (the administrator, board of adjustment or board of commissioners) issues a permit authorizing the change.  This permit may be issued if the permit issuing authority finds, in addition to any other findings that may be required by this chapter, that:

 

(1)  The intended change will not result in a violation of Section 16-124; and

 

(2)  All of the applicable requirements of this chapter that can reasonably be complied with will be complied with.  Compliance with a requirement of this chapter is not reasonably possible if com­pliance cannot be achieved without adding additional land to the lot where the nonconforming situation is maintained or moving a substantial structure that is on a permanent foundation.  Mere financial hardship caused by the cost of meeting such requirements as paved parking does not con­stitute grounds for finding that compliance is not reasonably possible.  And in no case may an applicant be given permission pursuant to this subsection to construct a building or add to an existing building if additional nonconformities would thereby be created.

 

(D)  If the intended change in use is to another principal use that is also nonconforming, then the change is permissible if the entity authorized by this chapter to issue a permit for that particular use (administrator, board of adjustment, or board of commissioners) issues a permit authorizing the change.  The permit issuing authority may issue the permit if it finds, in addition to other findings that may be required by this chapter, that:

 

(1)  The use requested is one that is permissible in some zoning district with either a zoning, special use, or conditional use permit; and

 

(2)  All of the conditions applicable to the permit authorized in subsection (C) of this section are satisfied; and

 

(3)  The proposed development will have less of an adverse impact on those most affected by it and will be more compatible with the surrounding neighborhood than the use in operation at the time the permit is applied for.

 

Section 16-127  Abandonment and Discontinuance of Nonconforming Situations.

 

(A)  When a nonconforming use is (i) discontinued for a consecutive period of 180 days, or (ii) 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.

 

(B)  If the principal activity on property where a nonconforming situation other than a nonconforming use exists is (i) discontinued for a consecutive period of 180 days, or (ii) discontinued for any period of time without a present intention of resuming that activity, then that property may thereafter be used only in conformity with all of the regulations applicable to the preexisting use unless the entity with authority to issue a permit for the intended use issues a permit to allow the property to be used for this purpose without correcting the nonconform­ing situations.  This permit may be issued if the permit issuing authority finds that eliminating a particular non­conformity is not reasonably possible (i.e., cannot be accomplished without adding additional land to the lot where the nonconforming situation is maintained or moving a substantial structure that is on a permanent foundation).  The permit shall specify which nonconformities need not be corrected.

 

(C)  For purposes of determining whether a right to continue a nonconforming situation is lost pursuant to this section, all of the buildings, activities, and operations maintained on a lot are generally to be considered as a whole.  For example, the failure to rent one apartment in a nonconforming apartment building for 180 days shall not result in a loss of the right to rent that apartment or space thereafter so long as the apartment building as a whole is continuously maintained.  But if a nonconforming use is maintained in conjunction with a conforming use, discontinuance of a nonconforming use for the required period shall terminate the right to maintain it thereafter.

 

(D)  When a structure or operation made nonconforming by this chapter is vacant or discontinued at the effective date of this chapter, the 180-day period for purposes of this section begins to run at the effective date of this chapter.

 

Section 16-128  Completion of Nonconforming Projects.

 

(A)  All nonconforming projects on which construction was begun at least 180 days before the effective date of this chapter as well as all nonconforming projects that are at least twenty-five percent completed in terms of the total expected cost of the project on the effective date of this chapter may be completed in accordance with the terms of their permits, so long as these permits were validly issued and remain unrevoked and unexpired.  If a development is designed to be completed in stages, this subsection shall apply only to the particular phase under construction.

 

(B)  Except as provided in subsection (A), all work on any nonconforming project shall cease on the effective date of this chapter, and all permits previously issued for work on nonconforming projects may begin or may be continued only pursuant to a zoning, special use, conditional use, or sign permit issued in accordance with this section by the individual or board authorized by this subchapter to issue permits for the type of development proposed.  The permit issuing authority shall issue such a permit if it finds that the applicant has in good faith made substantial expenditures or incurred substantial binding obligations or otherwise changed his position in some substantial way in reasonable reliance on the land use law as it existed before the effective date of this chapter and thereby would be unreasonably prejudiced if not allowed to complete his project as proposed.  In consider­ing whether these findings may be made, the permit issuing authority shall be guided by the following, as well as other relevant considerations:

 

(1)  All expenditures made to obtain or pursuant to a validly issued and unrevoked building, zoning, sign, or special or conditional use permit shall be considered as evidence of reasonable reliance on the land use law that existed before this chapter became effective.

 

(2)  Except as provided in subdivision (B)(1), no expenditures made more than 180 days before the effective date of this chapter may be considered as evidence of reasonable reliance on the land use law that existed before this chapter became effective.  An expenditure is made at the time a party incurs a binding obligation to make that expenditure.

 

(3)  To the extent that expenditures are recoverable with a reasonable effort, a party shall not be con­sidered prejudiced by having made those expenditures.  For example, a party shall not be con­sidered prejudiced by having made some expenditure to acquire a potential development site if the property obtained is approximately as valuable under the new classification as it was under the old, for the expenditure can be recovered by a resale of the property.

 

(4)  To the extent that a nonconforming project can be made conforming and that expenditures made or obligations incurred can be effectively utilized in the completion of a conforming project, a party shall not be considered prejudiced by having made such expenditures.

 

(5)  An expenditure shall be considered substantial if it is significant both in dollar amount and in terms of (i) the total estimated cost of the proposed project, and (ii) the ordinary business practices of the developer.

 

(6)  A person shall be considered to have acted in good faith if actual knowledge of a proposed change in the land use law affecting the proposed development site could not be attributed to him.

 

(7)  Even though a person had actual knowledge of a proposed change in the land use law affecting a development site, the permit issuing authority may still find that he acted in good faith if he did not proceed with his plans in a deliberate attempt to circumvent the effects of the proposed ordinance.  The permit issuing authority may find that the developer did not proceed in an attempt to undermine the proposed ordinance if it determines that (i) at the time the expenditures were made, either there was considerable doubt about whether any ordinance would ultimately be passed, or it was not clear that the proposed ordinance would prohibit the intended development, and (ii) the developer had legitimate business reasons for making expenditures.

 

(C)  The permit issuing authority shall not consider any application for the permit authorized by subsection (B) that is submitted more than sixty days after the effective date of this chapter.  The permit issuing authority may waive this requirement for good cause shown, but in no case may it extend the application deadline beyond one year.

 

(D)  The administrator shall send copies of this section to the persons listed as owners for tax purposes (and developers, if different from the owners) of all properties in regard to which permits have been issued for noncon­forming projects or in regard to which a nonconforming project is otherwise known to be in some stage of development.  This notice shall be sent by certified mail not less than fifteen days before the effective date of this chapter.

 

(E)  The permit issuing authority shall establish expedited procedures for hearing applications for permits under this section.  These applications shall be heard, whenever possible, before the effective date of this chapter so that construction work is not needlessly interrupted.

 

(F)  When it appears from the developer's plan or otherwise that the nonconforming project was intended to be or reasonably could be completed in stages, segments, or other discrete units, the permit issuing authority shall not allow the nonconforming project to be constructed or completed in a fashion that is larger or more extensive than is necessary to allow the developer to recoup and obtain a reasonable rate of return on the expenditures he has made in connection with that nonconforming project.

 

Section 16-129  Nonconforming Signs.

 

(A)  Notwithstanding any other provision of this article, (but subject to any more stringent requirements set forth in Article XVII), a nonconforming sign that exceeds the height or size limitations of Article XVII by more than ten percent or that is nonconforming in some other way shall, within one year following the effective date of this chapter, be altered to comply with the provisions of this chapter (particularly Article XVII) or be removed.  If the nonconformity consists of too many freestanding signs or an excess of total sign area, the person respon­sible for the violation may determine which sign or signs need to be altered or removed to bring the development into conformity with the provisions of Article XVII.

 

(B)  If a sign that is nonconforming under this chapter was also nonconforming under the town's previously adopted zoning ordinance, then the one year period specified in subsection (A) shall be considered to have started on the date such sign became nonconforming under the previously adopted zoning ordinance.

 

(C)  Within three months after the effective date of this chapter, the administrator shall make every reasonable effort to identify all the nonconforming signs within the town's planning jurisdiction.  He shall then contact the person responsible for each such sign (as well as the owner of the property where the nonconforming sign is located, if different from the former) and inform such person: (i) that the sign in nonconforming; (ii) how it is non­conforming; (iii) what must be done to correct it and by what date; and (iv) the consequences of failure to make the necessary corrections. The administrator shall keep complete records of all correspondence, communications, and other actions taken with respect to such nonconforming signs.

 

(D)  This section applies to all signs, including off-premises signs.

 

Sections 16-130 through 16-134 Reserved.

 

Article IX - Zoning Districts and Zoning Map

 

Part I.  Zoning Districts

 

Section 16-135  Residential Districts Established.

 

(A)  The following residential districts are hereby established: R-A, R-15, R-10S, R-10D, R-10M, R-6S, R-6M, and R-MH.  Each of these districts is designed and intended to secure for the persons who reside there a comfortable, healthy, safe, and pleasant en­vironment in which to live, sheltered from incompatible and disruptive activities that properly belong in non­residential districts.  Other objectives of some of these districts are explained in the remainder of this section.  [Amended October 13, 1998; December 8, 1998; March 14, 2000]

 

(B)  The R-A (Residential-Agriculture) district is designed to accommodate residential uses and a wide variety of plant and animal-related uses, but excluding those uses that would have the potential of creating a nuisance for adjoining or adjacent residential uses.  [Amended March 14, 2000]

 

(C)  The R-15 district is intended to be a low density residential district in which single family residences con­stitute the predominant use.  Multi family dwellings and mobile homes are prohibited in this district.

 

(D)  The R-10S district is intended to be a medium density residential district in which single family residences constitute the predominant use.  Multi family dwellings and mobile homes are prohibited in this district.  [Amended October 13, 1998] 

 

(E)  The R-10D district is intended to be a medium density residential district in which two family residences constitute the predominant use.  [Amended December 8, 1998]

 

(F)  The R-10M district is intended to be a medium density residential district in which multi family residences constitute the predominant use.  [Amended October 13, 1998] 

 

(G)  The R-6S district is intended to be a higher density residential district in which single family residences constitute the predominant use.  Multi family dwellings and mobile homes are prohibited in this district.  [Amended October 13, 1998] 

 

(H)  The R-6M district is intended to be a higher density residential district in which two-family and multi-family residences constitute the predominant use.  [Amended October 13, 1998] 

 

(I)  The R-MH district is designed primarily to accommodate mobile homes and mobile home parks.

 

Section 16-136  Nonresidential Districts Established.

 

(A)  The following nonresidential districts are hereby established: CB (Central Business), GB (General Business), OI (Office/Institutional), HMC (Hospital/Medical Complex), HSG (Horse Show Grounds), PGS (Parks and Green Space), and ETA (Extraterritorial Area).  These districts are created to accomplish the purposes and serve the objectives set forth in the remainder of this section.  [Amended April 10, 1985; July 14, 1998]

 

(B)  The CB district is designed to accommodate a wide variety of commercial activities (particularly those that are pedestrian oriented) that will result in the most intensive and attractive use of the town's central business district.

 

(C)  The GB district is designed to accommodate the widest range of commercial activities permitted within the town, particularly those that are automobile oriented.

 

(D)  The OI district is designed to accommodate a narrow range of commercial and institutional activities, including offices, schools, churches, libraries, clubs and lodges, and government buildings.  [Amended July 14, 1998]       

 

(E)  The HMC district is designed to accommodate the hospital and related offices and facilities that are designed to provide a continuum of care, including facilities that provide independent living, assisted living/CCRC, home health care, adult day care, intermediate care, skilled nursing care, and acute care. [Amended August 14, 2001]

 

(F)  The HSG district is designed to accommodate equestrian activities such as horse shows.

 

(G)  The PGS district is designed to accommodate public and private outdoor recreational facilities, including parks, trails, athletic fields, golf courses, tennis courts, swimming pools, etc.  [Amended July 14, 1998]

 

(H)  The extraterritorial area district is established to regulate and control signs within the Town's extraterritorial planning jurisdiction.  Therefore, the only regulations of this chapter applicable to land within this district are those that pertain to signs.  [Amended April 10, 1985 and January 14, 2003]

 

Section 16-137  Planned Unit Development Districts Established.

[Repealed March 11, 1997]

 

Section 16-138  Floodplain and Floodway Districts.

 

The floodplain and floodway districts are hereby established as "overlay" districts, meaning that these districts are overlaid upon other districts and the land so encumbered may be used in a manner permitted in the underlying district only if and to the extent such use is also permitted in the applicable overlay district.  The floodplain and floodway districts are further described in Part I of Article XVI of this chapter.

 

Section 16-139  Overlay Districts.

 

(A)  Bed and Breakfast Overlay

 

[Repealed October 13, 1998]

 

(B)  Short-Term Rental Overlay District.

 

(1)  Purpose.  The purpose of the short-term rental overlay district is to provide areas within the underlying multi-family residential zoning districts that are appropriate for short-term residential rental uses.   As an overlay district, the Short Term Rental Overlay District does not replace or restrict the range of uses allowed in the underlying zoning district, but allows for additional uses within the boundaries of the overlay district.

 

(2)  Designation of Overlay District.  Following approval by the Board of Commissioners of an area to be included in the Short-Term Rental Overlay District, the area so designated shall be labeled as “STR” on the Official Zoning Map.

 

(3)  Permitted Uses.  In addition to the uses permitted within the underlying zoning district, the following uses are allowed within the Short-Term Rental Overlay District:

 

(a)  Short-term rental of a dwelling unit

 

(4)  Adoption Criteria.  A Short-Term Rental Overlay District may be established if the proposed map amendment application meets the following standards, criteria, and conditions:

 

(a)  The map amendment may only be initiated by the Board of Commissioners, the Planning Board, the Town Administration, or an owner of property located within the proposed district.  Unless a map amendment is Town-initiated (by the Board of Commissioners, the Planning Board, or the Town Administration), an application for a map amendment must be endorsed by a majority of the property owners of all lots, parcels, and units to be included within the boundary area of the proposed map amendment.  The public notice, public hearing, and procedural requirements for the map amendment shall be as provided in Article XX.

  

(b)  The area proposed for the short-term rental district must be located within an existing R-10M or R-6M zoning district.

 

(c)  The area proposed for the short-term rental district may only include an existing or proposed multi-family residential complex that has a homeowner’s or property owner’s association with the authority to regulate or manage short-term rental uses within the complex.

 

(d)  The proposed short-term rental use must be compatible with established land uses in the immediate vicinity of the lots or parcels to be designated STR.

 

(e)  The proposed short-term rental use will not result in so many additional vehicle trips that adverse traffic impacts will be felt upon the streets and within the neighborhoods bordering the proposed STR district.

 

(f)  In addition to the requirements contained in Article XIX (Screening and Trees), the Council may require that the STR district be screened from any other adjacent residential use if it finds that any existing screening is inadequate or that there is insufficient separation between the proposed STR district and the adjacent residential uses.

 

[Amended April 11, 2000]

 

Part II.  Zoning Map.

 

Section 16-142  Official Zoning Map.

 

(A)  There shall be a map known and designated as the Official Zoning Map, which shall show the boundaries of all zoning districts within the city's planning jurisdiction.  This map shall be drawn on acetate or other durable material from which prints can be made, shall be dated, and shall be kept in the office of the land use administrator.  A copy of the zoning map shall also be filed in the Office of the Register of Deeds for Watauga County and Caldwell County.

 

(B)  The Official Zoning Map dated March 13, 1984 is adopted and incorporated herein by reference.  Amend­ments to this map shall be made and posted in accordance with Section 16-143.

 

(C)  Should the Official Zoning Map be lost, destroyed, or damaged, the administrator may have a new map drawn on acetate or other durable material from which prints can be made.  No further Board authorization or ac­tion is required so long as no district boundaries are changed in this process.

 

Section 16-143  Amendments to Official Zoning Map.

 

(A)  Amendments to the Official Zoning Map are accomplished using the same procedures that apply to other amendments to this chapter, as set forth in Article XX.

 

(B)  The administrator shall update the Official Zoning Map as soon as possible after amendments to it are adopted by the Board.  Upon entering any such amendment on the map, the administrator shall change the date of the map to indicate its latest revision.  New prints of the updated map may then be issued, and a copy of the up­dated map shall be furnished to the Office of the Register of Deeds for Watauga County and Caldwell County.

 

(C)  No unauthorized person may alter or modify the Official Zoning Map.

 

(D)  The administrator shall keep copies of superseded prints of the zoning map for historical reference.

 

Sections 16-144 and 16-145 Reserved.

 

Article X - Permissible Uses

 

Section 16-146  Table of Permissible Uses.   [ Amended June 13, 2006]

 

The Table of Permissible Uses (see pages 68-78) should be read in close conjunction with the definitions of terms set forth in Section 16-15 and the other interpretative provisions set forth in this article.

 

Section 16-147  Use of the Designations Z, S, C in Table of Permissible Uses.

 

(A)  Subject to Section 16-148, when used in connection with a particular use in the Table of Permissible Uses (Section 16-146), the letter "Z" means that the use is permissible in the indicated zone with a zoning permit issued by the administrator.  The letter "S" means a special use permit must be obtained from the board of adjustment, and the letter "C" means a conditional use permit must be obtained from the board of commissioners.

 

(B)  When used in connection with multi-family residences (use classification 1.300), the designation "SC" means that such developments of less than five dwelling units must be pursuant to a special use permit, and developments of five or more dwelling units require a conditional use permit.

 

(C)  Subject to Section 16-148, use of the designation "ZC" or "ZS" means that a zoning permit must be ob­tained if the development is located on a lot of one acre or less while a conditional or special use permit, respec­tively, must be obtained for all developments on lots in excess of one acre.

 

(D)  Use of the designation Z,S,C for combination uses is explained in Section 16-154.

 

Section 16-148  Board of Adjustment Jurisdiction Over Uses Otherwise Permissible With a Zoning Permit and Zoning Administrator Jurisdiction Over Uses Otherwise Permissible with SUP or CUP

 

(A)  Notwithstanding any other provisions of this article, whenever the Table of Permissible Uses (interpreted in the light of Section 16-147 and the other provisions of this article) provides that a use in a non-residential zone is permissible with a zoning permit, a conditional use permit shall be required if the administrator finds that the proposed use would have an extraordinary impact on neighboring properties or the general public.  In making this determination, the administrator shall consider, among other factors, whether the use is proposed for an undeveloped or previously developed lot, whether the proposed use constitutes a change from one principal use classification to another, whether the use is proposed for a site that poses peculiar traffic or other hazards or dif­ficulties, and whether the proposed use is substantially unique or is likely to have impacts that differ substantially from those presented by other uses that are permissible in the zoning district in question.  (Amended 11/15/88 - Requires a Conditional Use Permit in all situations where a Special Use Permit was previously required)

 

(B)  Notwithstanding any other provisions of this article, whenever the Table of Permissible Uses (interpreted in the light of Section 16-147 and other provisions of this article) provides that a use in the CB, GB, or OI zoning district is permissible with a special use permit or conditional use permit, only a zoning permit shall be required instead if the administrator determines that the new use involves no more than a change from one business to another, that no new substantial construction is involved, and that the change in use would have a negligible adverse impact on neighboring property and the public health and safety.  [Amended July 14, 1998]

 

Section 16-149  Permissible Uses and Specific Exclusions.

 

(A)  The presumption established by this chapter is that most legitimate uses of land are permissible within at least one zoning district in the town's planning jurisdiction.  Therefore, because the list of permissible uses set forth in Section 16-146 (Table of Permissible Uses) cannot be all-inclusive, those uses that are listed shall be in­terpreted liberally to include other uses that have similar impacts to the listed uses.

 

(B)  Section 16-146 (Table of Permissible Uses) shall not be interpreted to allow a use in one zoning district when the use in question is more closely related to another specified use that is permissible only in other zoning districts.

 

(C)  Without limiting the generality of the foregoing provisions, the following uses are specifically prohibited in all districts:

 

(1)  Use of travel trailer as a residence.

 

(2)  The use of any motor vehicle (as defined in Section 6-1 of the town code), parked on a lot, as a structure in which, out of which or from which any goods are sold or stored, any service is per­formed, or other business (as defined in Section 8-1 of the town code) is conducted, except that retail sales of food products and goods manufactured, created or produced by the seller shall not be prohibited by this subdivision.  Notwithstanding any other provision of this chapter, situations that exist on the effective date of this chapter that are in violation of this section shall not be regarded as lawful nonconforming situations thirty days after the effective date of this chapter.

 

Section 16-150  Accessory Uses.

 

(A)  The Table of Permissible Uses (Section 16-146) classifies different principal uses according to their different impacts.  Whenever an activity (which may or may not be separately listed as a principal use in this table) is conducted in conjunction with another principal use and the former use (i) constitutes only an inciden­tal or insubstantial part of the total activity that takes place on a lot, or (ii) is commonly associated with the prin­cipal use and integrally related to it, then the former use may be regarded as accessory to the principal use and may be carried on underneath the umbrella of the permit issued for the principal use.  For example, a swimming pool/tennis court complex is customarily associated with and integrally related to a residential subdivision or multi­family development and would be regarded as accessory to such principal uses, even though such facilities, if developed apart from a residential development, would require a special use permit (use classification 6.210).

 

(B)  For purposes of interpreting subsection (A):

 

(1)  A use may be regarded as incidental or insubstantial if it is incidental or insubstantial in and of itself or in relation to the principal use;

 

(2)  To be "commonly associated" with a principal use it is not necessary for an accessory use to be connected with such principal use more times than not, but only that the association of such accessory use with such principal use takes place with sufficient frequency that there is common acceptance of their relatedness.

 

(C)  Without limiting the generality of subsections (A) and (B), the following activities are specifically regarded as accessory to residential principal uses so long as they satisfy the general criteria set forth above:

 

(1)  Offices or studios within an enclosed building and used by an occupant of a residence located on the same lot as such building to carry on administrative or artistic activities of a commercial nature, so long as such activities do not fall within the definition of a home occupation.

 

(2)  Hobbies or recreational activities of a non-commercial nature.

 

(3)  The renting out of one or two rooms within a single family residence (use classification 1.110 or 1.120) (which one or two rooms do not themselves constitute a separate dwelling unit) to not more than two persons who are not part of the family that resides in the single family dwelling.

 

(4)  Yard sales or garage sales, so long as such sales are not conducted on the same lot for more than three days (whether consecutive or not) during any 365 day period.  Sales conducted in excess of these limitations shall be regarded as commercial activity that is unlawful in residential zones.

 

(D)  Without limiting the generality of subsections (A) and (B), the following activities shall not be regarded as accessory to a residential principal use and are prohibited in residential districts:

 

(1)  Storage outside of a substantially enclosed structure of any motor vehicle that is neither licens­ed nor operational.

 

(2)  Parking outside a substantially enclosed structure of more than four motor vehicles between the front building line of the principal building and the street on any lot used for purposes that fall within the following principal use classifications: 1.100, 1.200, 1.420, or 1.430.

 

Section 16-151  Permissible Uses Not Requiring Permits.

 

(A)  Notwithstanding any other provisions of this chapter, no zoning, special use, or conditional use permit is necessary for the following uses:

 

(1)  Streets.

 

(2)  Electric power, telephone. telegraph, cable television, gas, water, and sewer lines, wires or pipes, together with supporting poles or structures, located within a public right of way.

 

(3)  Neighborhood utility facilities located within a public right of way with the permission of the owner (state or town) of the right of way.

 

Section 16-152  Change in Use.

 

(A)  A substantial change in use of property occurs whenever the essential character or nature of the activi­ty conducted on a lot changes. This occurs whenever:

 

(1)  The change involves a change from one principal use category to another.

 

(2)  If the original use is a combination use (29.000) or planned unit development (30.000), the relative proportion of space devoted to the individual principal uses that comprise the combination use or planned unit development use changes to such an extent that the parking requirements for the overall use are altered.

 

(3)  If the original use is a combination use or planned unit development use, the mixture of types of individual principal uses that comprise the combination use or planned unit development use changes.

 

(4)  If there is only one business or enterprise conducted on the lot (regardless of whether that business or enterprise consists of one individual principal use or a combination use), that business or enter­prise moves out and a different type of enterprise moves in (even though the new business or enter­prise may be classified under the same principal use or combination use category as the previous type of business).  For example, if there is only one building on a lot and a florist shop that is the sole tenant of that building moves out and is replaced by a clothing store, that constitutes a change in use even though both tenants fall within principal use classification 2.110.  However, if the florist shop were replaced by another florist shop, that would not constitute change in use since the type of business or enterprise would not have changed.  Moreover, if the florist shop moved out of a rented space in a shopping center and was replaced by a clothing store, that would not constitute a change in use since there is more than one business on the lot and the essential character of the activity conducted on that lot (shopping center - combination use) has not changed.

 

(B)  A mere change in the status of property from unoccupied to occupied or vice-versa does not constitute a change in use.  Whether a change in use occurs shall be determined by comparing the two active uses of the pro­perty without regard to any intervening period during which the property may have been unoccupied, unless the property has remained unoccupied for more than 180 consecutive days or has been abandoned.

 

(C)  A mere change in ownership of a business or enterprise or a change in the name shall not be regarded as a change in use.

 

Section 16-153  Manufacturing/Processing, Etc. Uses.

 

The Board finds that the residential/resort character of the area within Blowing Rock's planning jurisdiction is incompatible with the development of such area for uses within the 4.000 classification of the Table of Per­missible Uses (manufacturing, processing, etc.) except to the extent that such uses create none of the negative impacts often associated with such manufacturing/processing uses.  Therefore, no 4.000 classification use within any zoning district may:

 

(1)  Emit from a vent, stock, chimney, or combustion process any smoke that is visible to the naked eye.

 

(2)  Generate noise that tends to have an annoying or disruptive effect upon (i) uses located outside the immediate space occupied by the 4.000 use if that use is one of several on the lot, or (ii) uses located on adjacent lots.

 

(3)  Generate any ground transmitted vibration that is perceptible to the human sense of touch measured at (i) the outside boundary of the immediate space occupied by the enterprise generating the vibration if the enterprise is one of several located on a lot, or (ii) the lot line if the enterprise generating the vibration is the only enterprise located on a lot.

 

(4)  Generate any odor that reaches the "odor threshold" measured at (i) the outside boundary of the immediate space occupied by the enterprise generating the odor, or (ii) the lot line if the enter­prise generating the odor is the only enterprise located on a lot.  For purposes of this subdivision, the "odor threshold" is defined as the minimum concentration in air of a gas, vapor, or particulate matter that can be detected by the olfactory systems of a panel of healthy observers.

 

(5)  Require for its operations a daily average of more than 200 gallons of water per employee.

 

(6)  Create any electrical disturbance that adversely affects any operations or equipment other than those of the creator of such disturbance, or otherwise causes, creates, or contributes to the in­terference with electronic signals (including television and radio broadcasting transmissions) to the extent that the operation of any equipment not owned by the creator of such disturbance is adversely affected.

 

Section 16-154  Combination Uses.

 

(A)  When a combination use comprises two or more principal uses that require different types of permits (zon­ing, special use, or conditional use), then the permit authorizing the combination use shall be:

 

(1)  A conditional use permit if any of the principal uses combined requires a conditional use permit.

 

(2)  A special use permit if any of the principal uses combined requires a special use permit but none requires a conditional use permit.

 

(3)  A zoning permit in all other cases.

 

This is indicated in the Table of Permissible Uses by the designation "Z,S,C" in each of the columns adjacent to the 29.000 classification.

 

(B)  Subject to subsection (C), when a combination use in an R-6 or R-10 zoning district consists of a residential sub­division and a multi-family development, the total density permissible on the lot shall be determined by having the developer indicate on the plans the portion of the total lot that will be developed for each purpose and calculating the density for each portion as if it were a separate lot.  [Amended October 13, 1998]

 

(C)  Notwithstanding Subsection 16-182(C), whenever (i) a combination use consists of a standard residential subdivision and a multi-family development, and (ii) the subdivided portion of the tract contains lots that exceed the minimum lot size requirements set forth in Section 16-181, but that do not exceed an average of 30,000 square feet, then the density of the portion of the tract developed for multi-family purposes may be increased beyond the permissible density calculated in accordance with subsection (B).  The increase in density shall be determined as follows:

 

(1)  The minimum lot size requirement for the applicable zoning district shall be subtracted from each lot that exceeds the minimum lot size, and the remainders totaled.

 

(2)  The sum derived from the calculation in subdivision (1) shall be divided by the minimum lot size requirement.  Fractions shall be rounded to the nearest whole number.

 

(3)  The product of the calculation in subdivision (2) shall yield the number of additional multi-family dwelling units that may be located within the portion of tract developed for multi-family purposes.

 

(D)  When a residential use is combined with a non-residential use in a business district, the lot must have at least the minimum square footage required for the residential use alone.

 

(E)  When two principal uses are combined, the total amount of parking required for the combination use shall be determined by cumulating the amount of parking required for each individual principal use according to the relative amount of space occupied by that use.

 

Section 16-155  Planned Unit Developments.

 

(A)  In a planned unit development, the developer may make use of the land for any purpose authorized in a particular P.U.D. zoning district in which the land is located, subject to the provisions of this chapter.  Section 16-137 describes the various types of P.U.D. zoning districts.

 

(B)  The portions of any planned unit development that are developed for purposes otherwise permissible only in a CB, GB, or OI zoning district ("nonresidential portions") may be occupied only in accordance with the schedule approved by the Board that relates occupancy of such nonresidential portions of the P.U.D to the completion of a specified percentage or specified number of phases or sections of the residential portions of the development.  The purpose and intent of this provision is to ensure that the planned unit development procedure is not used, intentionally or unintentionally, to create nonresidential uses in areas generally zoned for residential uses except as part of an integrated and well-planned, primarily residential development.  In approving a proposed schedule, the Board may consider, among other factors, the number of dwelling units proposed for the residential portions of the P.U.D, the physical relationship of the nonresidential components of the P.U.D to neighboring properties not within the P.U.D, and whether the nonresidential uses are to be located within pre-existing buildings or new construction.  [Amended July 14, 1998]

 

(C)  The plans for the proposed planned unit development shall indicate the particular portions of the lot that the developer intends to develop for higher density residential purposes, lower density residential purposes, and purposes permissible in a commercial district (as applicable).  For purposes of determining the substantive regulations that apply to the planned unit development, each portion of the lot so designated shall then be treated as if it were a separate district, zoned to permit, respectively, higher density residential, lower density residen­tial, and commercial uses.  However, only one permit - a planned unit development permit - shall be issued for the entire development.

 

(D)  The nonresidential portions of any planned unit development may not be occupied until all of the residen­tial portions of the development are completed or their completion is assured by any of the mechanisms provid­ed in Article IV to guarantee completion.  The purpose and intent of this provision is to ensure that the planned unit development procedure is not used, intentionally or unintentionally, to create nonresidential uses in areas generally zoned for residential uses except as part of an integrated and well-planned, primarily residential development.

 

Section 16-156  More Specific Use Controls.

 

Whenever a development could fall within more than one use classification in the Table of Permissible Uses (Section 16-146), the classification that most closely and most specifically describes the development controls.  For example, a small doctor's office or clinic clearly falls within the 3.110 classification (Office and service operations conducted entirely indoors and designed to attract customers or clients to the premises).  However, classification 3.130, "Physicians and dentists offices and clinics occupying not more than 10,000 square feet of gross floor area" more specifically covers this use and therefore is controlling.

 

Section 16-157  Uses Within the ETA District.

 

As provided in Subsection 16-136(F), the only regulations of this chapter applicable to land within the ETA zoning district are those that pertain to signs.  Because this chapter does not restrict the use of land in the ETA district (other than with respect to signs), the ETA district is not listed in the Table of Permissible Uses or other provisions of this chapter establishing other types of regulations, except those applicable to signs.  [Amended April 10, 1985 and January 14, 2003]

 

Sections 16-158 through 16-160 Reserved.

Table of Permissible Uses

 

Uses Description

R-A

R-15

R-10S

R-10D

R-10M

R-6S

R-6M

R-MH

CB

GB

OI

HMC

HSG

PGS

 

1.000  Residential

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

1.100  Single-family residences

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

     1.110  Other than mobile homes

Z

Z

Z

Z

Z

Z

Z

Z

Z

Z

Z

Z

 

 

     1.120  Mobile homes 

 

 

 

 

 

 

 

Z

 

 

 

 

 

 

     1.130  Single family residence with accessory apartment

Z

 

Z

Z

Z

Z

Z

 

C

C

C

 

 

 

 

1.200  Two-family residences

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

     1.210  Duplex

     [Amended December 8, 1998]

 

 

 

C

C

 

C

 

C

C

C

Z

 

 

     1.220  Two- family conversion

     [Amended December 8, 1998]

 

 

 

C

C

 

C

 

C

C

C

Z

 

 

1.230 Townhouses

[Amended October 12, 2004]

 

 

 

C

C

 

C

 

C

C

C

C

 

 

 

1.300  Multi-family residences

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

     1.310  Other than mobile home parks        

 

 

 

 

C

 

C

C

C

C

C

 

 

 

     1.320  Mobile home parks

 

 

 

 

 

 

 

C

 

 

 

 

 

 

     1.330  Multi-family conversion    

 

 

 

 

C

 

C

 

C

C

C

Z

 

 

 

1.400  Homes emphasizing special services, treatment or supervision

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

     1.410  Homes for handicapped or infirm

Z

Z

Z

Z

Z

Z

Z

Z

Z

Z

Z

Z

 

 

     1.420  Nursing care, intermediate   

 

 

 

 

C

 

C

 

 

 

 

C

 

 

     1.430  Child care homes   

 

 

 

 

C

 

C

 

 

 

 

C

 

 

     1.440  Halfway houses

 

 

 

 

 

 

 

 

 

 

 

C

 

 

 

Uses Description

R-A

R-15

R-10S

R-10D

R-10M

R-6S

R-6M

R-MH

CB

GB

OI

HMC

HSG

PGS

1.450  Facilities that are designed to provide a continuum of care, including independent living, assisted living/CCRC, home health care, adult day care, intermediate care, skilled nursing care, and acute care; provided, however, that residential living units shall be limited to no more than seven units per acre. [Amended August 14, 2001]

 

 

 

 

 

 

 

 

 

 

 

C

 

 

 

1.500  Miscellaneous long-term rooms for rent situations

   

 

 

 

 

 

 

 

 

 

 

 

 

 

 

1.510  Rooming houses, boarding houses    

Z

 

Z

Z

Z

Z

Z

 

C

C

C

Z

 

 

     1.520  Fraternities, sororities, and similar housing with ten beds or less

 

 

 

 

 

 

 

 

 

 

 

 

 

 

     1.530  Dormitories, fraternities and sororities with more than ten beds, and similar housing

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

1.600  Temporary Residences

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

     1.610  Temporary emergency construction and repair residences

Z

Z

Z

Z

Z

Z

Z

Z

 

Z

Z

Z

 

 

     1.620  Tourist homes and other temporary residences renting by the day or week

 

 

 

 

 

 

 

 

C

C

C

 

 

 

     1.630  Hotels, motels, and similar businesses or institutions providing overnight accommodations 

 

 

 

 

 

 

 

 

C

C

 

 

 

 

     1.640  Bed and Breakfast establishments    

 

 

 

 

 

 

 

 

C

C

C

 

 

 

 

1.700  Home Occupations    

 

 

Z

 

Z

 

Z

 

Z

 

Z

 

Z

 

Z

 

Z

 

Z

 

Z

 

Z

 

Z

 

 

 

Uses Description

R-A

R-15

R-10S

R-10D

R-10M

R-6S

R-6M

R-MH

CB

GB

OI

HMC

HSG

PGS

 

2.000  Sales and Rental of Goods, Merchandise and Equipment

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

2.100  Commercial activities to be located within a building.  The display of goods outside that building is allowed. [Amended December 9, 1997; June 12,2001]

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

     2.110  High-volume traffic generation

 

 

 

 

 

 

 

 

 

 

 

 

 

 

          2.111  Miscellaneous

 

 

 

 

 

 

 

 

C

C

 

 

 

 

          2.112  ABC Stores

 

 

 

 

 

 

 

 

C

C

 

 

 

 

          2.113  Convenience Stores

 

 

 

 

 

 

 

 

C

C

 

 

 

 

     2.120  Low-volume traffic generation

 

 

 

 

 

 

 

 

ZC

C

 

 

 

 

     2.130  Wholesale Sales

 

 

 

 

 

 

 

 

 

ZC

 

 

 

 

 

2.200  Commercial activities to be located within a building.  The display of goods outside that building is allowed. [Amended December 9, 1997; June 12, 2001]

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

     2.210  High-volume traffic generation

          [Amended December 9, 1997]

 

 

 

 

 

 

 

 

 

C

 

 

 

 

          2.211  Miscellaneous

               [Amended December 9, 1997]

 

 

 

 

 

 

 

 

 

C

 

 

 

 

          2.213  Convenience Stores

               [Amended December 9, 1997]

 

 

 

 

 

 

 

 

 

C

 

 

 

 

     2.220  Low-volume traffic generation

          [Amended December 9, 1997]

 

 

 

 

 

 

 

 

 

C

 

 

 

 

     2.230  Wholesale Sales

          [Amended June 13, 1995]

 

 

 

 

 

 

 

 

 

C

 

 

 

 

 

Uses Description

R-A

R-15

R-10S

R-10D

R-10M

R-6S

R-6M

R-MH

CB

GB

OI

HMC

HSG

PGS

 

 3.000  Office, Clerical, Research and Services Not Primarily Related to Goods or Merchandise

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

3.100  All operations conducted entirely within fully enclosed building

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

     3.110  Operations designed to attract and serve customers or clients on the premises, such as the offices of attorneys, physicians, other professions, insurance and stock brokers, travel agents, government office buildings, etc.

 

 

 

 

 

 

 

 

ZC

ZC

C

ZC

 

 

3.120  Operations designed to attract little or no customer or client traffic other than employees of the entity operating the principal use

 

 

 

 

 

 

 

 

ZC

ZC

C

ZC

 

 

     3.130  Office or clinics of physicians or dentists with not more than 10,000 square feet of gross floor area    

 

 

 

 

 

 

 

 

ZC

ZC

C

ZC

 

 

 

3.200  Operations conducted within or outside fully enclosed building

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

     3.210  Operations designed to attract and serve customers or clients on the premises

 

 

 

 

 

 

 

 

ZC

ZC

C

 

 

 

     3.220  Operations designed to attract little or no customer or client traffic other than the employees of the entity operating the principal use

 

 

 

 

 

 

 

 

ZC

ZC

C

 

 

 

     3.230  Banks with drive-in windows

 

 

 

 

 

 

 

 

ZC

ZC

 

 

 

 

 

Uses Description

R-A

R-15

R-10S

R-10D