This chapter shall be known and
may be cited as the Blowing Rock Land Use Ordinance.
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.
(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.
The provisions in this chapter
were originally adopted and became effective on March 13,
1984.
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.
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.
(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
___________________
_________________________________
Date
Zoning
Administrator
[Amended November 13, 2001]
(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.
(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)
(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)
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)
(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)
(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.
(97) Street, Cul-de-sac.
(98) Street, Local.
(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.
(101) Street, Subcollector.
(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.
(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.
(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
(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 ]
(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).
(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 ]
(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.
(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.
(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
(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
(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.
(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.
(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.
(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.
(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.
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.
(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.
(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.
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.
(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.
(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.
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.
[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.]
(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]
(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]
(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]
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]
(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]
(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.]
Section
16-45.10
Purpose
Service on a council, a board,
or a commission of the Town of
Section
16-45.11
Applicability
(A) This
section shall apply to the citizen members of all "boards" of the Town of
(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]
(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]
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.
(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.
(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.
(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.
(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.
(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).
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.
(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.
(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.
(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]
(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.
(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.
(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
(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.
(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.
(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).
(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.
(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.
(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).
(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.
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.
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.
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).
(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
(B) As provided in G.S. 160A-373, the
(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.
(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
(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.
(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
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.
(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.
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.
(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.
(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]
(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.
(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.
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.
(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.
(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.
(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.
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.
(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.
(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.
(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.
(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.
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.
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.
(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.
(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.
(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.
(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
(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
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.
(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]
(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.
(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.
(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.
(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.
(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.
(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.
(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.
(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.
(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.
(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]
[Repealed March 11, 1997]
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.
(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]
(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
(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.
(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
(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.
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.
(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.
(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]
(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.
(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.
(A)