APPLICATION FOR CONDITIONAL USE PERMIT

Town of Blowing Rock

CUP No. 2007-04

Applicant: Chetola Severn, LLC

Project Name: Blowing Rock Commons (“Project”)

Property: Off North Main Street between Chetola entrance and Hill Street (“Property”)

Tax Parcel Nos.: 2817-08-4516-000

Property Owners of Record: Chetola Severn, LLC

Proposed Use of Property: Combination Use (Hotel, Restaurant, Office, Retail and Residential)

Current Zoning Classification of Property: CB, Central Business

The Applicant, Chetola Severn, LLC, proposes the following conditions of approval to its application for a Conditional Use Permit (“CUP”) for the development of the Project on the Property:

1. Compliance with Approved Plans.

The Applicant shall complete the development of the Project in accordance with the site plan, plans, designs and material boards submitted and approved by the Town of Blowing Rock Town Council (collectively, the “Approved Plans”), and subject to the Town Council’s approval of exterior building appearance and materials as provided in Section 4(b)(ii), below. The Approved Plans are listed on Exhibit A to this CUP application. The Approved Plans are incorporated into this Application as if fully set forth herein and shall be maintained in the Conditional Use Permit file in the Land Use Administrator’s office. Insignificant deviations from or changes in the Approved Plans, as defined herein, must be approved in writing by the Town’s Land Use Administrator as provided in the Town’s Land Use Ordinance Section 16-64(A). Minor deviations in design and all other changes to the Approved Plans shall be processed in accordance with Land Use Ordinance Sections 16-64 (B) and (C), as applicable.

2. Town Costs and Fees.

Unless otherwise expressly set forth in this Conditional Use Permit, all costs and fees required to be paid by the Applicant to the Town shall be in accordance with the Town’s standard fee schedule effective at the time the payment is due.

3. Permitted Uses.

(a) Uses Allowed and Disallowed.

Only those uses permitted under the CB Central Business zoning district by the Land Use Code as of the approval date of this Conditional Use Permit shall be permitted in the Project. Notwithstanding the foregoing or any future amendment of the Land Use Ordinance, the following retail uses and services shall not be permitted in the Project: tattoo or body piercing establishments; sexually oriented businesses; drive-thru restaurants; gas stations; manufacturing uses that generate noise, smoke, odor or vibration; commercial or telecommunications towers (except for concealed commercial or telecommunications antenna or towers); mobile homes; miniature golf course; motor vehicle sales, repair or vehicles parts sales; storage units; salvage yard; kennel; commercial horticulture sales (which does not include retail horticulture sales, such as, without limitation, a farmer’s market or flower stands); agricultural operations; open air display of merchandise and laundromats.

(b) Changes in Use.

Changes in occupancy shall be subject to the review and approval of the Town Zoning Administrator to ensure compliance with this Conditional Use Permit, the North Carolina State Building Code and the Land Use Ordinance, including changes in use from: (a) retail to office, residential or hotel; (b) office to retail, residential or hotel; (c) residential to office, retail or hotel; or (d) hotel to retail, office or residential. In addition to the foregoing, any change of use in the preceding four categories that would cause a change in the parking requirements for the new use must be reviewed by staff and approved by the Town.

The Applicant will make a best efforts attempt to reserve all first floor commercial space for retail use. Use of office space is discouraged on the first floor of any building except as an accessory use within a hotel. In no event may first floor office space be used for real estate sales or rental operations, provided that the Applicant may use a first floor office space in support of its ongoing marketing support for the development.

4. Architecture and Design.

(a) Uniform Appearance.

Buildings and signage within the development shall have a consistent and uniform appearance that generally conforms with and enhances the character of Blowing Rock’s commercial downtown business district. Conformity with the character of the downtown business district shall consist, among other things, of complementary materials and nature-blending colors, and shall reflect the character of a mountain resort.

(b) Building Design Review

(i) A Design Review Committee is hereby established consisting of the Land Use Administrator and two other members of the Town staff appointed by the Town Manager to monitor building design compliance with this CUP. The Applicant shall submit all building designs for compliance review by the Design Review Committee, in conjunction with each building permit application in the Project.

(ii) After the Design Review Committee completes its review, and prior to the issuance of a building permit for each building in the Project, the Applicant shall present building elevations and proposed exterior materials for such building to the Town Council for the Town Council’s approval of the elevations and materials as being in compliance with the Land Use Ordinance and this CUP. The exterior appearance shall be consistent with the final elevations proposed by the Applicant prior to the issuance of this CUP, and the exterior materials shall be selected from the material boards presented to the Town by the Applicant prior to the issuance of this CUP, unless the Applicant requests and the Town Council approves the use of alternative materials. The standard for the Town Council’s review of the elevations and building materials shall be the same as for the Town Council’s review of an amendment to this CUP.

(iii) All building designs, heights and setbacks shall be consistent with the requirements of the Land Use Ordinance. The design standards in the Land Use Ordinance shall be the minimum standards governing the Project, unless specifically waived by the Town. Where design standards in the Land Use Ordinance are superseded by this Conditional Use Permit, design standards contained in this CUP control.

(c) Exterior Materials.

(i) Subject to the Primary Fire District Regulations of the North Carolina State Building Code, all exterior materials on buildings in the Project shall consist of brick; wood or simulated wood products; stone, rock or simulated stone or rock products; and glass for windows in accordance with the window-façade ratios set forth below. Metallic or metal sided exterior walls shall not be permitted. Other exterior materials shall be permitted upon approval of the Design Review Committee.

(ii) All retaining walls constructed in the project shall be constructed using stone, rock or simulated stone or rock products. All retaining walls constructed in the Project shall be subject to the approval of the Land Use Administrator.

(iii) All one-story buildings within the Project may have up to 60% of the street-level façade composed of glass. Corner one-story buildings may have an equal percentage of glass on the façade facing the intersecting street. The first floor of two- and three-story buildings in the Project may have up to 60% of the street-level façade composed of glass.

(iv) All two-story buildings may have up to 40% of the second story façade composed of glass and in the style set forth in the Approved Plans.

(v) Commercial or residential-style windows may be used on the upper stories of all buildings up to three stories, provided the glass shall not exceed 40% of the wall of any facade of a building.

(d) Building Height.

The maximum height of the hotel shall be 37 feet as measured from the adjacent grade at the primary entrance. No other wall on the hotel may exceed 40 feet as measured from the average finished grade along the base of the wall to the highest point of the structure. Heights stated above are based on a minimum setback of 50 feet from Main Street and Hill Street.

The maximum height of the retail/office, retail, and restaurant buildings shall not exceed 30 feet as measured from the finished sidewalk elevation adjacent to each building and parallel with Main Street to the highest point of the structure. These heights are based upon a minimum setback of 15 feet from Main Street.

The maximum heights of the residential condominium units A and G shall not exceed 30 feet as measured from the finished sidewalk elevation along Hill Street and Main Street, respectively. These heights are based on a minimum setback of 15 feet from Hill Street and Main Street.

The maximum heights of the residential condominium units B, C, D, E, F, H, I, and J shall not exceed 40 feet as measured from the adjacent grade at the primary entrance to the highest point of the structure. These heights are based on a minimum setback greater than 65 feet from Main Street or Hill Street.

(e) Roof Design.

The design of each building roof in the Project shall be in accordance with the requirements set forth in the Land Use Code. Metal standing seam is not permitted as a roof material, but copper shall be allowed as an accent material on roof overhangs and dormers.

(f) Residential Unit Design.

All connected or attached residential units shall incorporate diverse street designs and avoid identical appearances.

(g) LEED Design.

In developing the Project, the Applicant shall incorporate into the Approved Plans the following design features, which shall be consistent with applicable elements of the U.S. Green Building Council’s Certification Criteria for Leadership, Energy and Environmental Design (LEED) program:

(i) Energy-efficient windows.

(ii) Energy-efficient appliances, lighting, and HVAC systems.

(iii) Where applicable, factory-built building components such as trusses and pre-hung doors to allow more efficient use of raw materials.

(iv) The series of sidewalks and crosswalks provided in this CUP Application, to encourage pedestrian traffic between the development and other locations within the Town of Blowing Rock.

(v) Open green space areas for visitors and residents.

(vi) Low-flow toilets.

The Applicant shall not be required to apply for or obtain LEED certification generally, or LEED certification of any of the foregoing items or other design features.

(h) Name.

The Applicant shall not interfere with the Town’s efforts to promote the town, the Village or other Main Street businesses through its use of project or development names that would reasonably conflict with those efforts. Specifically, the terms “village” and “Main Street” shall not be allowed unless used in a way that protects the identity of the commercial core. The Applicant may use the name “Blowing Rock Commons” for the Project.

(i) Signage.

All signage in the Project shall conform to the requirements of the Town’s Sign Code as set forth in the Land Use Ordinance. Subject to the standards in the Land Use Ordinance, the Applicant shall develop a common signage plan for review and approval in conformance with the procedure set forth in the Land Use Code. The signage plan shall include both business signage and parking and directional signage. Neon signs, flashing signs and signs with movable type shall not be permitted in the Project.

(j) Fountain.

The Applicant shall construct and maintain a fountain in the hotel arrival court as generally depicted on the August 29,September 25, 2008 landscape plan prepared by Cooper Cary Architects.

(k) Major and Minor Changes.

Minor changes and deviations are defined in Section 16-64 of the Land Use Ordinance. All other changes in the Approved Plans shall be deemed to be major changes.

5. Open Space Credits.

(a) Use of Sidewalk Parcel as Open Space Credit.

(i) On December 28, 1999, RSK, LLC, a Virginia Limited Liability Company, deeded to the Town a 0.86-acre parcel of land along Main Street for the construction of a public sidewalk (the “Sidewalk Parcel”), which deed is recorded in Deed Book 560, Page 423, Watauga County Register of Deeds. Pursuant to the terms of that conveyance, the Town agreed to permit RSK to use the Sidewalk Parcel as a credit against the Town’s open space requirements in connection with a future development project to be undertaken by RSK in the Town of Blowing Rock (the “Open Space Credit”). RSK has agreed to assign the Open Space Credit to the Applicant, and RSK and the Applicant have requested the Town’s approval for such assignment and to permit the Applicant to apply the Open Space Credit against the Town’s open space requirements for the Project.

(ii) The Town approves the assignment by RSK of the Open Space Credit to the Applicant, and the Applicant may apply the Open Space Credit against the Town’s open space requirements for the Project. Except as specifically set forth in this section, the agreement and terms of the original conveyance of the Sidewalk Parcel to the Town shall not be affected by this Conditional Use Permit.

(b) Other Open Space Credit.

The Applicant may apply as additional credit against the Town’s open space requirements for the Project One Hundred Percent (100%) of the total square-footage of other offsite sidewalks constructed by the Applicant along Main Street or elsewhere in the Town of Blowing Rock in connection with the Project. For purposes of this Conditional Use Permit, “offsite” shall mean any area that is not located on the Property owned by the Applicant on which the Project will be developed.

6. Sewer and Water.

(a) Sewer.

(i) Connection Charges

The sewer system for the Project shall be designed to the Town’s standard specifications for developments of the same type as the Project and subject to the Town’s standard connection and/or availability fee as that fee may change from time to time. The sizing and location of all sewer lines constructed in connection with the Project shall be subject to the approval of the Town’s engineering staff.

(ii) System Upgrades.

The Applicant shall upgrade and replace the existing 8-inch sewer line on Main Street located below the RE/MAX Realty office, as more particularly shown on the Approved Plans, prior to the issuance of the first Certificate of Occupancy for the Project. The replacement line shall consist of a 12-inch sewer line approximately 200 feet in length to the manhole at the interceptor sewer line across the east side of the Middle Fork, north of the Chetola Resort Property entrance. In addition to making the above-described sewer line upgrade, the Applicant shall pay to the Town a fee equal to the difference in the cost of upgrading the 200 feet of public sewer line described above and the cost of upgrading a total of 600 feet of public sewer line, which fee shall be paid prior to the issuance of the first building permit for the Project and shall be used by the Town in maintaining and/or upgrading its sewer service infrastructure. The Applicant shall have no obligation to obtain any easements necessary for the replacement and upgrade of the above-referenced sewer line.

(b) Water.

(i) Connection Charges.

The Project’s water systems shall be subject to the Town’s standard connection and/or availability fee, as that fee may change from time to time. Notwithstanding any staging of connections as contemplated by Section 6(b)(ii), below, the Applicant shall pay the connection/availability fee for all seventeen (17) proposed buildings at the time that the connection/availability fee is due for the first connection to the Town’s water system.

(ii) Loop-line system and further connections.

(A) The Applicant shall install a “loop line” water supply system at the Project as shown on the final Project Plans and in accordance with applicable NC DENR regulations and the Town’s engineering specifications. The Applicant shall thereafter connect eleven (11) buildings of its choice to the loop line, in a manner and in locations shown on the final Project Plans as approved by the Town Engineer.

(B) The Applicant may install water supply wells to supply the units and uses in the remaining six (6) buildings of the Project, with the number and locations of such wells, and the manner of connection of such wells and associated piping to the buildings/units, approved by the Town Engineer and (if required by applicable law and regulations) NC DENR. The wells may be installed on the Project or on adjacent properties with respect to which the Applicant has obtained title or an easement or license to permit the installation of a water supply well(s) and associated piping and equipment.

(C) At the time of construction of the six buildings referenced in Section 6(b)(ii)(B), above, the Applicant may install service lines and connections to connect those six buildings and their units to the loop line water supply system; provided that (x) such service lines and connections shall be in the manner and at the locations shown on the final Project Plans as approved by the Town Engineer, (y) such service lines must be capped at the building or unit to prevent the use of such service line, with such capping approved by the Town Engineer, and (z) the cap shall be removed and the service line completed and activated at the time that NC DENR lifts its restrictions on new water line extensions/connections in the Town.

(D) Upon the activation of the service lines pursuant to Section 6(b)(ii)(C), above, the Applicant shall promptly disconnect and abandon the water supply wells and associated equipment in accordance with applicable NC DENR regulations.

(E) Each of the units receiving water from the water supply wells permitted in this Section shall be metered in a manner approved by the Town Engineer so that the Town may calculate appropriate sewer use charges for such units.

(F) The water supply wells permitted by this Section shall be tested in accordance with applicable laws and regulations, with the results of such testing provided to the Town’s Public Works Director.

(iii) Compliance with Other Laws.

All public water connections shall comply with all local and state rules or regulations in effect at the time of application for connection.

(iv) System Approval.

The water system for the Project shall be designed to the Town’s standard specifications for developments of the same type as the Project, and the sizing and location of all water lines constructed in connection with the Project will be subject to the approval of the Town’s engineering staff and DENR as applicable.

(c) Water Interconnection Charge.

The Applicant shall be obligated to pay to the Town of Blowing Rock a one-time fee of $151,800 as a contribution to a future water interconnection to be constructed between the Town of Boone and the Town of Blowing Rock by the two towns. All funds paid in accordance with this section shall be held as restricted funds by the Town and may by used only for right of way acquisition and/or the construction of the water interconnection. The Applicant may pay the fee in its entirety prior to the issuance of the first Certificate of Occupancy, or in three (3) equal installments of $50,600 each as follows: (i) the initial payment shall be due when the first Certificate of Occupancy is issued for the Project; (ii) the second payment shall be due one (1) year after the issuance date of the first Certificate of Occupancy for the Project; and (iii) the third payment shall be due two (2) years after the issuance date of the first Certificate of Occupancy for the Project.

7. Transportation Improvements.

The Applicant shall install the following off-site improvements:

a) Turn lanes

The Applicant shall design and construct the right turn radius at Driveway #1 as required by both NCDOT and the Land Use Administrator. Applicant also shall construct a left turn lane on Main Street at Driveway #1. Storage and taper length for the Main Street left turn lane shall be determined through the NCDOT driveway permitting process, provided that in no event shall the left turn lane be designed to store fewer than three (3) vehicles. Space for all turn lanes shall come from the Property.

b) Sidewalks

The Applicant shall discourage unnecessary vehicle trips and integrate the Project with the Town’s commercial core through a series of interconnected sidewalks. Accordingly, the Applicant shall:

i) construct a sidewalk up to five feet in width, where feasible, plus two feet of curb and gutter, where feasible, along the northern side of Main Street from Hill Street to the lower boundary of the property known as “Knights on Main;”

ii) construct a sidewalk on the east side of Hill Street to Edith Lane up to five feet in width, where feasible, plus two feet of curb and gutter, where feasible. Issues regarding feasibility shall be determined by the Town Council in its sole discretion and in consultation with Town staff;

iii) construct a sidewalk on the west side of Hill Street Lane from Driveway #2 to Main Street;

iv) make the sidewalk crossing Hill Street along Main Street handicapped accessible;

v) construct a pedestrian crosswalk along Main Street crossing Hill Street;

vi) construct a pedestrian crosswalk at Driveway #2 from the eastern to the western sides of Hill Street;

vii) construct a pedestrian crosswalk across Main Street from the western side of Hill Street, subject to having plans approved by the Land Use Administrator and NCDOT

viii) construct a pedestrian crosswalk across Main Street from the lower boundary of “Knights on Main” to the south side of Main Street, subject to having plans approved by the Land Use Administrator and NCDOT.

ix) construct all crosswalks described herein as stamped and painted brick crosswalks subject to the design approval of the Land Use Administrator.

x) construct or provide at its expense any curb and gutter, stormwater, drainage inlets and related features that are required by NCDOT, and relocate power poles and related infrastructure as necessary, to effect the improvements listed in Section 7(b)(i) through (ix) above.

8. Parking.

(a) General Requirements.

(i) Parking for the development shall be as depicted on the submitted and approved site plan. Pursuant to the submitted and approved site plan, the Project requires 388 parking spaces under existing Land Use Ordinance requirements and provides 402 parking spaces, fourteen (14) spaces higher than required. Because of (i) the Project’s magnitude in relation to the commercial core, and (ii) its potential to attract general traffic to Blowing Rock that is greater in volume than the traffic that would patronize just the businesses within the Project, the Town requires and the Applicant agrees to provide an additional twenty-five (25) spaces for a total of four hundred thirteen (413) spaces to accommodate the additional and anticipated traffic volume. Accordingly, the Applicant shall pay $165,000 into the Town’s parking fund (eleven spaces times $15,000 per space) for each space to reach the additional twenty-five (25) spaces.

(ii) In the event that (A) changes in occupancy or use are approved by the Land Use Administrator pursuant to section 3(b) above, and (B) such changes in use would cause, in the aggregate, an increase in parking space needs above 388 spaces, then the Applicant shall receive credit for up to fourteen (14) spaces for this increase, representing credit for the overage in the originally submitted and approved site plan. The Applicant shall not receive credit for the eleven (11) spaces for which it paid into the Town’s parking fund. In the event that the Applicant constructs greater or fewer than 402 spaces on site or off, then the credit in these paragraphs shall be adjusted accordingly.

(b) Off-site Parking

If Applicant decides to construct offsite parking, then such parking shall be permanently dedicated for such purpose with either a restrictive covenant or negative easement duly recorded in the office of the Watauga County Register of Deeds preventing different use of the site.

(c) Residential Areas

Applicant shall provide parking consistent with the Land Use Ordinance within areas designated for residential use.

(e) Loading and Unloading.

A freight loading/unloading area for the Project shall be provided and clearly marked as shown on the Approved Plans for the Project and shall be perpetually maintained for use by the tenants and occupants of the Project, all in accordance with the Land Use Ordinance.

(f) Emergency Vehicles.

Applicant shall reserve two centrally located parking spaces for emergency vehicles. These spaces shall be credited towards Applicant’s minimum parking requirements.

9. Access.

The primary entrance to the Project shall be on Main Street as depicted on the Approved Plans. The secondary access to the Project shall be on Hill Street, provided the Project shall be designed to include a “soft curb”,” consisting of a three-inch tall island, and appropriate signage prohibiting a right turn from the Project onto Hill Street, as depicted on the Approved Plans.

10. Lighting.

All exterior lighting in the Project for all the driveways, parking areas and sidewalks shall use the same coach-style lights selected as the lighting standard for the Town, and shall otherwise be consistent with the Town’s Land Use Code Section 16-302.08. Any diffused or otherwise visible light emanating from the Project on adjoining properties shall not be more than one foot-candle at the common lot line separating the properties.

11. Landscaping.

(a) Conformity with Plans.

The Applicant shall landscape the Project in accordance with the updated landscape plan prepared by Cooper Carry Architects dated August 29,September 25, 2008 and in accordance with the Land Use Ordinance and the plant species identified in Appendix E of the Land Use Ordinance. In particular and without limiting the requirements of the Land Use Ordinance, the Applicant shall incorporate evergreen trees into “Tree Zone F,” as generally depicted and provided for in the August 29 September 25, 2008 Cooper Cary landscape plan. With respect to the western/southwestern corner of the site (intersection of Hill and Main Street), the Applicant shall coordinate with the Land Use Administrator to determine which trees can and shall be saved consistent with the Land Use Ordinance, and to determine whether alterations in the sidewalk path may be necessary to preserve such trees, and shall incorporate such tree preservation and sidewalk alterations in the final construction plans. The Applicant acknowledges that the preservation of such trees may require selective cutting or grading techniques on certain portions of the western/southwestern corner. The Applicant also shall install a 16-foot opaque buffer along the full length of the Bisanar property and implement a tree-save plan for the Project, all of which shall be subject to the prior approval of the Land Use Administrator and incorporated into this CUP.

(b) Maintenance.

All trees, plants and landscaping required for the Project under this Conditional Use Permit shall be maintained by the Applicant, and any dead, unhealthy or missing vegetation, or any vegetation disfigured by severe pruning, shall be replaced with new vegetation consistent with the Land Use Ordinance. If vegetation is damaged by the Applicant’s actions or inactions, it shall be replaced consistent with the Land Use Ordinance.

12. Utilities.

(a) General.

The Applicant shall install all utilities within the Project, including underground utilities as required by the Land Use Ordinance, at the Applicant’s expense. All materials used for utilities to be dedicated to the Town shall be subject to approval by the Town Engineer and the Director of Public Works. No building may be constructed over a dedicated public utility easement within the Project.

(b) Underground Placement.

All existing overhead utilities on the Property and running along Main Street shall be placed underground.

13. Stormwater and Land Disturbance.

(a) Use of Offsite Detention.

The Town has determined in its discretion that Applicant shall be permitted to use Chetola Lake as an off-site water quality detention facility for all impervious surfaces in the development. If the Applicant uses Chetola Lake as an offsite stormwater detention facility for stormwater runoff flowing from the Project, the Applicant shall amend the Stormwater Agreement with the owner of Chetola Lake, RSK Mountain Resort, LLC (“RSK”), dated January 17, 2007, and recorded in Book BR 1254, Page 385, Watauga County Register of Deeds to provide for the Town to have access to Chetola Lake for inspection of Chetola Lake as a working stormwater detention facility, as required in the Land Use Ordinance. The amended Stormwater Agreement shall provide that if the Applicant or RSK (or their respective successors) fail to repair or maintain Chetola Lake (including the Lake’s dam) as a stormwater detention facility, and if a cure of such failure is not commenced within thirty (30) days after written notice by the Town (or within such other period of time to which the parties may agree), the Town, in its sole discretion, may enter upon the Chetola Lake property in such a reasonable manner and at such reasonable times as necessary to repair or maintain Chetola Lake for such purposes. Any reasonable costs incurred by the Town to exercise such rights shall constitute a lien upon the Property. Notwithstanding the foregoing, the Town agrees that compliance of Chetola Lake dam with applicable North Carolina statutes and regulations governing the construction, maintenance and safety of dams shall constitute compliance of that dam with the Town’s requirements with respect to matters covered by those applicable statutes and regulations. In the amended Stormwater Agreement, RSK shall hold the Town and its agents, employees, consultants and contractors harmless for any injury or damage to Chetola Lake or other RSK property caused by the Town or its agents, employees, consultants or contractors in the inspection, repair or maintenance of any portion of Chetola Lake (including the Lake’s Dam) resulting from the non-negligent or non-willful actions or omissions of the Town. The amended Stormwater Agreement shall state, among other things, that the Project’s benefit to RSK shall serve as sufficient consideration for RSK’s agreement to hold the Town harmless for the above-mentioned acts. The amended Stormwater Agreement shall be recorded in the Watauga County Register of Deeds prior to the issuance of the first building permit in the Project.

(b) Additional Water Quality Protection.

As additional water quality protection, the Applicant shall install a Suntree Technologies Model # NSBB-8-16-96N device in the area to the rear of Building G between junction boxes JB1-b and JB2 as shown on the approved project plans. The manner of such device’s connection to the Project’s stormwater collection system shall be approved by the Town’s engineer. Failure to maintain such device shall be subject to enforcement for a violation of this Conditional Use Permit.

To accommodate certain up-basin properties’ potential use of Chetola Lake as off-site stormwater detention (subject to Section 13(d)(i) through (iv), below), all drainage systems within the Property shall be sized to carry stormwater from the immediately adjacent up-basin properties (or portions of those up-basin properties) that have historically drained to, across or onto or across the Property, which stormwater would occur during a twenty-five (25) year storm. The calculation of such drainage/flow shall be made based on current property grades and projected build out of those adjacent properties to 70% impervious surfaces. All stormwater drainage along Main Street adjoining the Property shall be piped. Adequate curb and gutter shall be provided to convey stormwater from Main Street into the Project’s stormwater collection system at the downstream corner of the Property, prior to the discharge point into the Chetola Lake forebay. Any portion of the Project’s stormwater drainage system that encroaches within Main Street may be subject to an NCDOT encroachment agreement.

(d) Use of Chetola Lake by Other Properties.

The Property shall be engineered and developed so that the immediately adjacent, up-basin properties (i) whose stormwater has historically flowed to, through or across the Property, and (ii) that are approved by the Town for development or redevelopment, shall be allowed to use Chetola Lake as a stormwater quality detention facility if (iii) stormwater detention capacity/volume is available in Chetola Lake, and (iv) mutually acceptable arrangements are made with the owner of Chetola Lake. Applicant shall grant in the future reasonable and mutually acceptable cross-stormwater drainage easements for the benefit of such adjacent properties to convey stormwater through the Project’s stormwater drainage system to Chetola Lake; provided (v) the Applicant shall not be responsible for costs of connections or upgrades to the Property’s stormwater drainage system to accommodate such additional flows; and (vi) all up-basin property owners shall be responsible for the reasonable and proportionate sharing of maintenance, repair and replacement costs of the Property’s stormwater system among all of the properties utilizing that system, including without limitation the Suntree Technologies device required by Section 13(b), above. At the election of RSK, up-basin properties utilizing Chetola Lake for offsite stormwater detention shall also be required to enter into agreements for the mutually acceptable sharing of maintenance and repair of Chetola Lake. Notwithstanding the foregoing, the owner of the Property shall not be required to grant any easement contemplated by this paragraph if the flow of additional stormwater into the Property’s stormwater drainage system would require upgrades requiring subsurface work on the Property beyond that reasonably necessary to connect to the Property’s stormwater system at a location closest to the property in question, and/or would materially interfere with the use and enjoyment of the Property, including, without limitation, the disturbance of use(s) caused by the construction of any proposed connection(s); provided, however, that Applicant agrees that construction of stormwater infrastructure to accommodate a twenty-five (25) year storm from the immediately adjacent up-basin properties as required in this Conditional Use Permit shall not be considered to materially interfere with the use or enjoyment of the Property.

(e) Maximum Densities and Impervious Surfaces.

The maximum density of the Project for purposes of calculating permissible impervious surface areas shall be the greater of: (a) the density(ies) shown on the Approved Plans; or (b) up to 24% built-upon area for the residential portion of the Project and up to 70% Special Intensity Allocation for the commercial portion of the Project. For purposes of this CUP, the Project includes pervious acreage to be acquired by the Applicant on that tract of land adjoining the Property, commonly known as the “Chetola Resort,” more particularly described in Deed Book BR 1254, Page 385, Watauga County Register of Deeds (the “Chetola Resort Property”); provided that, within ninety (90) days after the approval date of this Conditional Use Permit and prior to the issuance of any building permit for the Project, the Applicant must acquire fee simple title to the additional pervious acreage and record (i) a plat in the Watauga County Register of Deeds delineating the acquired pervious surface areas on the Chetola Resort Property and showing the transfer of impervious/pervious surface credits between the Property and the Chetola Resort Property, and (ii) a restrictive covenant or negative easement permanently preserving the pervious surface areas delineated on the Chetola Resort Property and providing that the delineated pervious surface areas on the Chetola Resort Property shall never be used for impervious/pervious surface calculations for any new development that may occur on the Chetola Resort Property. To take advantage of this Section 13(e) the Applicant must acquire fee simple title to and restrict (as provided above) 3.74 acres of pervious surface area on the Chetola Resort Property (based on achieving 24% density for the residential portion of the Project together with credit provided in Section 13(f) below); provided that the pervious acreage to be obtained shall be adjusted accordingly in the event that this CUP is amended to change the built upon area in the Approved Plans.

(f) Credit for Deeded Conveyance.

In addition to the Property to be obtained and restricted pursuant to Section 13(e), the Applicant may use pervious areas of the Sidewalk Parcel in its calculation of pervious acreage available to the Project for purposes of achieving the required residential or commercial densities, provided that, within ninety (90) days after the approval date of this Conditional Use Permit and prior to the issuance of any building permit for the Project, the Applicant shall record (i) a plat in the Watauga County Register of Deeds delineating the pervious surface areas on the Sidewalk Parcel and showing the transfer of impervious/pervious surface credits between the Property and the Sidewalk Parcel and (ii) a restrictive covenant or negative easement on the Sidewalk Parcel preserving the pervious surface areas delineated on the Sidewalk Parcel. Assuming that the Applicant records a covenant or easement against all currently pervious portions of the Sidewalk Parcel, the credit available under this Section 13(f) is a maximum of .71 acres.

14. Solid Waste Collection.

The Project shall include a trash-containment area and/or moveable trash containers adequate in size and function to serve the needs of the Project. The size and location of the trash-containment area shall be subject to the approval of the Land Use Administrator and the Public Works Director consistent with the Land Use Ordinance.

15. Reservations and Dedications.

(a) Public Use of Open Space.

All open space within the Project designated as such on the Approved Plans shall be open and available to the public, subject to the right and authority of the owner of the Property to establish and enforce reasonable rules and regulations for access to and the use of such open space, including restrictions on public gatherings and assemblies, demonstrations, speech, distribution of literature, loitering and any other act or expression that may jeopardize the character or operation of the Project. Notwithstanding the foregoing, neither this Conditional Use Permit nor the Approved Plans shall be deemed to be a gift or dedication of any portion of the open space on the Property or the restrooms on the Property to the public or to any public authority.

(b) Public Restrooms.

The Applicant shall provide and maintain in the Project, at the expense of the Project owner, one men’s and one women’s public restroom in a central and well-marked location in the Project, which restrooms shall be handicapped accessible and remain open to the public during regular operating business hours in the Project. Public restrooms shall be subject to the right and authority of the Applicant to establish and enforce reasonable rules and regulations for access to and the use of such restrooms.

(c) Public Safety.

The Applicant shall donate to the Town one new Segway vehicle for exclusive use by the Town’s police department.

16. Development Phasing.

(a) Prior to the commencement of any land-disturbing activity (as defined in N.C. Gen. Stat. §113A-52(6)):

(i) The Applicant shall submit to the Town Engineer for approval a grading plan and stormwater management plan that satisfies the requirements of Section 16-263 of the Land Use Ordinance and includes a soil erosion control plan approved by the Town Engineer and Watauga County. No work shall be performed on the Property until all applicable erosion control measures have been installed, with the exception of specific work that may be required to complete the installation of the erosion control measures.

(ii) The Applicant shall provide a performance bond or letter of credit to the Town to cover 125% of the Applicant’s estimated cost of the installation of the Project’s stormwater drainage facilities, site-stabilization, the proposed Project landscaping and the restoration of all excavated areas to pre-disturbance grade level. With the approval of the Town Land Use Administrator, the Applicant may reduce the amount of the bond or letter of credit to reflect the completion of one or more of the above tasks, or to reflect the fact that some or all of the financial assurance is no longer necessary or feasible given the progress of the Project. The amount of the bond shall be subject to the reasonable approval of the Town Engineer, taking into consideration only all hard bids and associated costs provided by the Applicant. Any insufficiencies in the amount of the bond or letter of credit shall become a lien against the Property.

(iii) The Applicant shall have recorded the following documents in the Watauga County Register of Deeds, and shall have provided copies of the recorded documents to the Town Land Use Administrator: (1) the deed showing the transfer to the Applicant of fee simple title to the additional pervious acreage on the Chetola Resort Property required by Section 13(e); (2) the plats required by Sections 13(e)(i) and 13(f)(i); and (3) the restrictive covenants or negative easements required by Section 13(e)(ii) and 13(f)(ii).

(iv) The Applicant shall have provided to the Town Land Use Administrator a then-current estimate of the Project’s timeline, including phases of proposed construction activity. The timeline and construction activities may change from time to time as project planning and needs dictate, and the Applicant shall provide updated, estimated project timelines to the Town Land Use Administrator upon request.

(b) Prior to the issuance of the first building permit for any of the commercial or residential buildings in the Project, the Applicant shall complete:

(i) The rough-grading, curb and gutter, stone-base and drainage for the primary internal road in the Project as shown on the Approved Plans;

(ii) The recordation of the approved Stormwater Agreement.

(iii) The upgrade of the sewer line or the payment of the fee in lieu of such upgrade, as more particularly set forth above.

(iv) Submission to the Zoning Administrator of a final, revised site plan that incorporates the terms and conditions of this approved Conditional Use Permit.

(v) Recordation of the plat delineating the pervious surface areas on the Sidewalk Parcel and restrictive covenants of the same.

(c) Prior to the issuance of the first Certificate of Occupancy for the hotel or any commercial building in the Project, the Applicant shall make the following improvements or payments: