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HomeMy WebLinkAboutUDO_ArtXII9/17/2019 240 ARTICLE XII. AMENDMENTS, HEARING PROCEDURES, APPEALS, & VARIANCES SECTION 1.0 RESERVED Reserved SECTION 2.0 AMENDMENTS 2.1 General Procedures The Harnett County Board of Commissioners may amend, supplement, or change the text regulations and zoning district lines according to the following procedures: Upon the filing of an application for a zoning change a stay shall go into effect for properties specified within said application, whereby the Harnett County Planning Department, Harnett County Environment Health Department, Harnett County Public Utilities Department, and Harnett County Inspections Department shall not accept applications for permits, requests for approval of minor subdivisions, preliminary plats for major subdivisions, and manufactured home parks within the proposed zoning area. This stay shall exist for 120 days from the date the application or petition is filed with the Harnett County Planning Department or until the petition is approved or disapproved by the Harnett County Board of Commissioners, whichever first occurs. However, those applications for permits, minor subdivision approvals, and preliminary plat approvals meeting all provisions of the proposed zoning district, and not in conflict with the current zoning, will be accepted and processed provided approval has been granted or recommended by the Administrator or his designee. 2.1.1 Action by the Applicant The following actions shall be taken by the applicant: A. Initiation of Amendments 1. Proposed changes or amendments to the Official Zoning Map may be initiated by the County Board of Commissioners, Planning Board, Board of Adjustment, Planning Department, or by the owner(s), or his agent, of property within the area proposed to be changed. Property not owned by the applicant(s) may be included as part of a proposed amendment to the Official Zoning Map. Applications by the owner(s) or his agent for changes or amendments to the Official Zoning Map may be submitted no more than once within a 12 month period for each individual parcel of property. This waiting period shall not apply to zoning map amendment requests initiated by the County Board of Commissioners, Planning Board, Board of Adjustment, or Planning Department. 2. Proposed amendments to the text of the Ordinance may be initiated by any interested party. B. Application 1. An application shall be filed in the Planning Department Office, according to the filing schedule, for any proposed map change or text amendment. This application shall cite the area on the existing map or the portion of the existing Ordinance for which the change is requested. 2. The County Board of Commissioners shall set a fee, payable to Harnett County, North Carolina, to cover the necessary administrative costs and advertising of each proposed amendment or map change application. The set fee shall be posted in the County's Planning Department Office. The Planning Department, Planning Board, Board of Adjustment, and Board of County Commissioners shall be exempted from this fee. 9/17/2019 241 2.1.2 Action by Planning Department Staff Planning Staff shall, upon receipt of an application for amendment, review such application for completion. Incomplete applications may be returned to the applicant(s) and/or delayed in review by applicable Boards due to insufficiencies. Upon receipt of a completed application, Planning Staff will review and compare to best available information and data used to evaluate appropriateness of amendment requests. Planning Staff will then make a recommendation on the amendment request, included as part of a staff report, which will be presented to the applicable Boards. 2.1.3 Action by the Planning Board The Planning Board shall consider and make recommendations to the County Board of Commissioners concerning each proposed text change or zoning district change. The following policy guidelines shall be followed by the Planning Board concerning text change or zoning district change and no proposed zoning district change will receive favorable recommendation unless the intent of the following statements are met. A. The proposal will place all property similarly situated in the area in the same category, or in appropriate complementary categories. B. There is convincing demonstration that all uses permitted under the proposed district classification would be in the general public interest and not merely in the interest of an individual or small group. C. There is convincing demonstration that all uses permitted under the proposed district classification would be appropriate in the area included in the proposed change. (When a new district designation is assigned, any use permitted in the district is allowable, so long as it meets district requirements, and not merely uses which applicants state they intend to make of the property involved.) D. There is convincing demonstration that the character of the neighborhood will not be materially and adversely affected by any use permitted in the proposed change. E. The proposed change is in accordance with the comprehensive plan and sound planning principles. In cases where a zoning district change request is recommended for approval by the Planning Board but does not correspond with the adopted Land Use Plan, the Planning Board shall further recommend that the Land Use Plan be amended as appropriate. See Subsection “Land Use Plan Amendments” of this Section, below, for additional information. 2.1.4 Action by the Board of County Commissioners The County Board of Commissioners may from time to time as they see fit, amend any provisions of this Ordinance according to the following procedure: A. Notice of Public Hearing 1. No amendment or map change shall be adopted by the County Board of Commissioners until and after public notice and hearing. Such notice and hearing shall be as provided in NC Statute 153A-323 and 153A-343 as each may exist from time to time. 2. Before taking such lawful action as it may deem advisable, the County Board of Commissioners shall consider the Planning Board's recommendations on each proposed zoning amendment or map change. If no recommendation is received from the Planning 9/17/2019 242 Board within 30 days after public hearing by the County Board of Commissioners, the proposed amendment shall be deemed to have been approved by the Planning Board. B. Statement of Consistency As required, whenever the County Board of Commissioners makes a decision to adopt or reject an amendment, the Board shall approve a written statement describing whether the action is consistent with adopted plan(s). For purposes of this Ordinance, the required written statement shall be considered the staff report, unless otherwise specifically stated in the decision motion by the Board. 2.2 Zoning Map & Text Amendments Zoning map and text amendments shall follow the procedures outlined above. 2.3 Amendments to Historic Preservation Regulations No amendment shall receive recommendation from the Harnett County Planning Board unless the Historic Properties Commission has first been given the opportunity to make a recommendation on an application for any text, district, or designation change regulated by Article “Historic Preservation” of this Ordinance. 2.4 Amendments to Airport Height Control Regulations No amendment shall receive favorable recommendation unless the application for any text or map change located within the boundary created by the airport control regulations shall be accompanied by a determination from the Federal Aviation Administration (FAA) as to the effect of the proposal on the operation of air navigation facilities and the safe, efficient use of navigable airspace. Additionally, no amendment shall receive recommendation from the Harnett County Planning Board unless the Airport Committee has first been given the opportunity to make a recommendation on an application for any change regulated by Article “Airport Height Control” of this Ordinance. 2.5 Amendments to Water Supply Watershed Regulations The NC DENR will be informed of all amendments to this Section that represent major changes in land use regulations related to all water supply watersheds located in the jurisdiction of Harnett County. 2.6 Land Use Plan Amendments 2.6.1 General Land Use Plan Amendments Amendments to the Land Use Plan shall be considered for approval following the same procedure for text amendments of this Ordinance, as outlined herein. For the purposes of this Ordinance, an amendment to the Land Use Plan shall be considered as such in regards to advertising, public hearings, and all other similar requirements. 2.6.2 Land Use Plan Amendments Made in Conjunction with Zoning Map/Change Amendments Where a proposed zoning change petition conflicts with the Land Use Plan, the Planning Staff may also request a Land Use Plan amendment, to be considered simultaneously with the zoning district change request, as outlined herein. A. In such a case, the Planning Board and County Board of Commissioners shall consider the plan amendment proposal and the zoning change petition separately, and shall vote separately on the 9/17/2019 243 two (2) items (though the votes may occur simultaneously). B. The Planning Board shall submit its report and recommendation regarding the Land Use Plan amendment to Board of Commissioners at the same time it submits its report and recommendation regarding the zoning change petition. C. For the purposes of this Section, Land Use Plan amendments will automatically be advertised in conjunction with the zoning district change request. SECTION 3.0 HEARING & MEETING PROCEDURES 3.1 Evidentiary Hearing (Quasi-judicial) Procedures (Conditional Use Permit) 3.1.1 Evidentiary Hearing Notification Procedures The Chairman of the Board of Adjustment shall schedule an evidentiary hearing on the application for a conditional use permit to be held within 60 days after the application is filed. A. Mailed Notice Those property owners directly affected by a request heard as an evidentiary hearing shall be notified of the request and hearing by individual mailed notice. This notice shall be provided to all adjoining property owners. The property owners shall be determined using best available County tax records. Planning Department staff shall maintain a record of those property owners notified, a copy of the mailing itself, and the date on which the mailing was done. This notice shall be sent via first class mail, made at least 10 days but not more than 25 days prior to the evidentiary hearing, and shall include information regarding the proposed request, and the time and place of the hearing. B. Posted Notice A notice of the evidentiary hearing shall be posted on the affected site. The County shall determine an appropriate time and number of postings, so long as the posting provides reasonable notice to interested parties. 3.1.2 Reserved 3.1.3 Action by the Board of Adjustment The Board of Adjustment shall approve, modify, or deny the application for conditional use permit following the evidentiary hearing. In granting a conditional use permit, the Board of Adjustment shall make written findings that the applicable regulations of the district in which it is located are fulfilled. A. Findings of Fact With due regard to the nature and state of all adjacent structures and uses, the district within which it is located, and official plans for future development, the Board of Adjustment shall also make required written findings of fact that the following provisions are fulfilled. 1. The requested use will not materially endanger the public health and safety; 2. The requested use meets, or will meet, all required conditions and specifications; 3. The requested use will not substantially injure the value of adjoining property, or, alternatively, the requested use is or will be a public necessity; 4. The requested use is in harmony with the surrounding area and compatible with the surrounding neighborhood; and 9/17/2019 244 5. The requested use is in general conformance with the Harnett County Unified Development Ordinance (UDO), Land Use Plan, and other relevant adopted plans. 3.1.4 Conditions of Approval The Board of Adjustment applies existing regulations of this Ordinance and does not have unlimited discretion to apply conditions on approval for a conditional use application unless those conditions are reasonable and specifically address one (1) or more of the required findings of fact. Conditional use permit hearings are not the appropriate place to make policy; rather the Board is applying previously set policies to an individual case. The conditions can be general (for example, the activity shall not have a significant adverse effect on neighboring property values and the activity be compatible with the surrounding neighborhood), specific (for example, the use shall be located on a lot of at least 40,000 square feet), or a combination of general and specific standards. Conditions placed upon a conditional use permit may include but are not limited to the following: A. Such conditions may include a time limitation. B. Conditions may be imposed which require that one (1) or more things be done before the use requested can be initiated. For example, “A solid board fence shall be erected around the site to a height of six (6) feet before the use requested is initiated.” C. Conditions of a continuing nature may be imposed. For example, “Exterior loud speakers shall not be used between the hours of 10:00 PM and 8:00 AM.” 3.1.5 Abandonment of a Conditional Use Permit The Board of Adjustment shall have the authority to approve the abandonment of a conditional use permit at the written and signed request of the permit holder if it determines that: A. No construction or activity authorized by the conditional use permit has been started and the starting time limit has not yet expired; or B. The development or use authorized by the conditional use permit no longer requires a conditional use permit, and all conditions of the approval have been satisfied. 3.1.6 Revocation of a Conditional Use Permit A conditional use permit may be revoked by the Board of Adjustment if the permit recipient fails to develop or maintain the property in accordance with the plans submitted, the requirements of this Ordinance, or any additional requirements lawfully imposed by the Board of Adjustment. A. Before a conditional use permit may be revoked, all of the notice and hearing procedures of the Ordinance shall be complied with. The notice shall inform the permit holder of the alleged grounds for the revocation. B. The burden of presenting evidence sufficient to authorize the Board of Adjustment to conclude that a conditional use permit should be revoked for any reason shall be upon the party advocating that position. The burden of persuasion shall also be upon that party. C. A motion to revoke a conditional use permit shall include, insofar as practicable, a statement of the specific reasons or findings of fact that support the motion. 9/17/2019 245 3.2 Public Meeting Procedures 3.2.1 Public Meeting Notification Procedures Notification to the public for public meetings may be made via one (1) or more of the following methods. A. Notice of the public meeting shall be posted on the property. B. The public meeting shall be open to the public and all interested persons shall be given the opportunity to present evidence and arguments and to ask questions of persons who testify. 3.2.2 Public Hearing Notification Procedures Zoning amendments, both text and map amendments, shall be considered for approval only after a properly advertised public hearing is held, in compliance with the North Carolina General Statutes. Those procedures are outlined herein. A. Published Notice Notice of the public hearing shall be published in at least two (2) newspaper advertisements, in a publication of general circulation in the area affected. The first of the two (2) notices shall be published at least 10 days, but not more than 25 days, prior to the hearing. The second notice shall appear in a separate calendar week. B. Mailed Notice Those property owners directly affected by a zoning map amendment shall be notified of the request and hearing by individual mailed notice. This notice shall be provided to all adjoining property owners, as well as to the owners of the property to be rezoned. The property owners shall be determined using best available County tax records. Planning Department staff shall maintain a record of those property owners notified, a copy of the mailing itself, and the date on which the mailing was done. This notice shall be sent via first class mail, made at least 10 days but not more than 25 days prior to the public hearing, and shall include information regarding the proposed zoning change, and the time and place of the hearing. C. Posted Notice A notice of the public hearing for a zoning map amendment shall be posted on the affected site. The County shall determine an appropriate time and number of postings, so long as the posting provides reasonable notice to interested parties. D. Large Scale Zoning Changes When large scale zoning changes are proposed, those affecting more than 50 parcels with at least 50 different property owners, the County may have the option of providing an expanded published notice instead of individual mailed notices. With this alternative, the County shall run two (2) half-page newspaper advertisements for the hearing, post a notice on the site, and mail notice to those property owners who live outside of the newspaper’s circulation area. E. Additional Requirements The County may establish notice requirements in addition to those required by the General Statutes. SECTION 4.0 APPEALS It is the intention of this Ordinance that all questions arising in connection with the enforcement of this Ordinance shall be presented first to the Administrator. Such questions shall be presented to the Board of Adjustment or Planning Board only on appeal of a decision of the Administrator or Development Review Board and within the time limits prescribed in this Ordinance. Recourse for 9/17/2019 246 appeal of a decision of the Board of Adjustment or Planning Board shall be to the courts as provided by law. Appeals of the Administrator shall be made to the Board of Adjustment, except in cases of appeal of the Subdivision Administrator or Development Review Board, which are appealed to the Planning Board. An appeal of the Administrator stays all proceedings in furtherance of the action appealed from unless the Administrator certifies to the Board of Adjustment or Planning Board that by reason of facts stated in the record a stay would, in his opinion, cause eminent peril to life and or property. In such a case proceedings shall not be stayed other than by an order from the Harnett County Superior Court. 4.1 Appeal of the Administrator Review of a decision of the Administrator shall be made by the Board of Adjustment or Planning Board, in accordance with this Ordinance, upon request of the aggrieved party within 30 days of the date of the decision. A complete application shall be submitted to the County Planning Department Office, including all required information and applicable fees. Reviews by the Board of Adjustment or Planning Board of administrative appeals are quasi-judicial and shall follow the procedural standards for such. 4.2 Appeal of the Development Review Board Review of a decision of the Development Review Board shall be made to the Planning Board upon request of the aggrieved party within 30 days of the date of the decision. A complete application shall be submitted to the County Planning Department Office, including all required information and applicable fees. The Planning Board shall conduct a de novo review of the Development Review Board decision. 4.3 Appeal of the Watershed Administrator Any order, requirements, decision, or determination made by the Watershed Administrator may be appealed to and decided by the Watershed Review Board. A. An appeal from a decision of the Watershed Administrator shall be submitted to the Watershed Review Board within 30 days from the date the order, interpretation, decision, or determination is made. All appeals shall be made in writing stating the reasons for appeal. Following submission of an appeal, the Watershed Administrator shall transmit to the Board all papers constituting the record upon which the action appealed from was taken. B. An appeal stays all proceedings in furtherance of the action appealed, unless the Administrator from whom the appeal is taken certifies to the Board after the notice of appeal has been filed with him, that by reason of facts stated in the certificate, a stay would in his opinion cause imminent peril to life or property. In such case, proceedings shall not be stayed otherwise than by a restraining order which may be granted by a court of record on application of notice of the Administrator from whom the appeal is taken and upon due cause shown. C. The Board shall fix a reasonable time for hearing the appeal and give notice thereof to the parties and shall decide the same within a reasonable time. At the hearing, any party may appear in person, by agent or by attorney. 4.4 Appeal of the Board of Adjustment Any interested party may seek review of a decision of the Board of Adjustment in Superior Court in the nature of certiorari. Any appeal to the Superior Court shall be made within 30 calendar days after the decision of the Board of Adjustment has been filed. Such decision shall be filed with the Clerk to the Board of Adjustment in the County Planning Department Office. 9/17/2019 247 SECTION 5.0 VARIANCES A grant of relief from the requirements of this Ordinance may be requested, following the provisions of this Section, where unusual circumstances specific to the property exist, and where literal enforcement would result in unnecessary and undue hardship; provided however that the need for the variance was not caused by the applicant or property owner. This Section does not provide for use variances or enlargement of existing nonconformities beyond what this Ordinance provides for. Notice of variance requests shall follow “Evidentiary Hearing Notification Procedures” of this Article. 5.1 Zoning Variance Procedures Zoning regulation variances may be granted in such individual case of unnecessary hardships only upon findings by the Board of Adjustment after a public hearing that the following conditions exist. Additionally, the existence of a nonconforming use on neighboring land, buildings, or structures in the same district or of permitted or nonconforming uses in other districts shall not constitute a reason for the requested variances. Individual variances may be made subject to conditions, as imposed by the Board of Adjustment. No change in permitted uses may be authorized by variance. Appropriate conditions may be imposed on any variance, provided that the conditions are reasonably related to the variance. Any other ordinance that regulates land use or development may provide for variances consistent with the provisions of this subsection. As per S.L. 2013-126, when unnecessary hardships would result from carrying out the strict letter of this ordinance, the Board of Adjustment shall vary any of the provisions of the ordinance upon a showing of all of the following: A. Unnecessary hardship would result from the strict application of the ordinance. It shall not be necessary to demonstrate that, in the absence of the variance, no reasonable use can be made of the property. B. The hardship results from conditions that are peculiar to the property, such as location, size, or topography. Hardships resulting from personal circumstances, as well as hardships resulting from conditions that are common to the neighborhood or the general public, may not be the basis for granting a variance. C. The hardship did not result from actions taken by the applicant or the property owner. The act of purchasing property with knowledge that circumstances exist that may justify the granting of a variance shall not be regarded as a self-created hardship. D. The requested variance is consistent with the spirit, purpose, and intent of the ordinance, such that public safety is secured and substantial justice is achieved. 5.2 Subdivision Variance Procedures The Planning Board may vary from the design standards and improvements required by this Ordinance, after finding that the following conditions exist: A. There are extraordinary and exceptional conditions pertaining to the particular piece of property in question because of its size, shape, or topography that are not applicable to other lands or structures. B. Granting the variance requested will not confer upon the subdivider(s) any special privileges that are denied to others. C. A literal interpretation of the provisions of this Ordinance would deprive the subdivider(s) of rights commonly enjoyed by others.