§ 160A-385.1. Vested rights. - North Carolina Statutes

§ 160A‑385.1. Vested rights.

(a)        The General Assembly finds and declares that it is necessaryand desirable, as a matter of public policy, to provide for the establishmentof certain vested rights in order to ensure reasonable certainty, stability,and fairness in the land‑use planning process, secure the reasonableexpectations of landowners, and foster cooperation between the public andprivate sectors in the area of land‑use planning.  Furthermore, theGeneral Assembly recognizes that city approval of land‑use developmenttypically follows significant landowner investment in site evaluation,planning, development costs, consultant fees, and related expenses.

The ability of a landowner to obtain a vested right after city approvalof a site specific development plan or a phased development plan will preservethe prerogatives and authority of local elected officials with respect to land‑usematters.  There will be ample opportunities for public participation and thepublic interest will be served.  These provisions will strike an appropriatebalance between private expectations and the public interest, whilescrupulously protecting the public health, safety, and welfare.

(b)        Definitions.

(1)        "Landowner" means any owner of a legal orequitable interest in real property, including the heirs, devisees, successors,assigns, and personal representative of such owner.  The landowner may allow aperson holding a valid option to purchase to act as his agent or representativefor purposes of submitting a proposed site specific development plan or aphased development plan under this section, in the manner allowed by ordinance.

(2)        "City" shall have the same meaning as set forth inG.S. 160A‑1(2).

(3)        "Phased development plan" means a plan which hasbeen submitted to a city by a landowner for phased development which shows thetype and intensity of use for a specific parcel or parcels with a lesser degreeof certainty than the plan determined by the city to be a site specificdevelopment plan.

(4)        "Property" means all real property subject tozoning regulations and restrictions and zone boundaries by a city.

(5)        "Site specific development plan" means a planwhich has been submitted to a city by a landowner describing with reasonablecertainty the type and intensity of use for a specific parcel or parcels ofproperty.  Such plan may be in the form of, but not be limited to, any of thefollowing plans or approvals:  A planned unit development plan, a subdivisionplat, a preliminary or general development plan, a conditional or special usepermit, a conditional or special use district zoning plan, or any other land‑useapproval designation as may be utilized by a city.  Unless otherwise expresslyprovided by the city, such a plan shall include the approximate boundaries ofthe site; significant topographical and other natural features effectingdevelopment of the site; the approximate location on the site of the proposedbuildings, structures, and other improvements; the approximate dimensions,including height, of the proposed buildings and other structures; and theapproximate location of all existing and proposed infrastructure on the site,including water, sewer, roads, and pedestrian walkways.  What constitutes asite specific development plan under this section that would trigger a vestedright shall be finally determined by the city pursuant to an ordinance, and thedocument that triggers such vesting shall be so identified at the time of itsapproval.  However, at a minimum, the ordinance to be adopted by the city shalldesignate a vesting point earlier than the issuance of a building permit.  Avariance shall not constitute a site specific development plan, and approval ofa site specific development plan with the condition that a variance be obtainedshall not confer a vested right unless and until the necessary variance isobtained.  Neither a sketch plan nor any other document which fails to describewith reasonable certainty the type and intensity of use for a specified parcelor parcels of property may constitute a site specific development plan.

(6)        "Vested right" means the right to undertake andcomplete the development and use of property under the terms and conditions ofan approved site specific development plan or an approved phased developmentplan.

(c)        Establishment of vested right.

A vested right shall be deemed established with respect to any propertyupon the valid approval, or conditional approval, of a site specificdevelopment plan or a phased development plan, following notice and publichearing by the city with jurisdiction over the property.  Such vested rightshall confer upon the landowner the right to undertake and complete thedevelopment and use of said property under the terms and conditions of the sitespecific development plan or the phased development plan including anyamendments thereto.  A city may approve a site specific development plan or aphased development plan upon such terms and conditions as may reasonably benecessary to protect the public health, safety, and welfare.  Such conditionalapproval shall result in a vested right, although failure to abide by suchterms and conditions will result in a forfeiture of vested rights.  A cityshall not require a landowner to waive his vested rights as a condition ofdevelopmental approval.  A site specific development plan or a phasedevelopment plan shall be deemed approved upon the effective date of the city'saction or ordinance relating thereto.

(d)        Duration and termination of vested right.

(1)        A right which has been vested as provided for in thissection shall remain vested for a period of two years.  This vesting shall notbe extended by any amendments or modifications to a site specific developmentplan unless expressly provided by the city.

(2)        Notwithstanding the provisions of subsection (d)(1), a citymay provide that rights shall be vested for a period exceeding two years butnot exceeding five years where warranted in light of all relevantcircumstances, including, but not limited to, the size and phasing ofdevelopment, the level of investment, the need for the development, economiccycles, and market conditions.  These determinations shall be in the sounddiscretion of the city.

(3)        Notwithstanding the provisions of (d)(1) and (d)(2), thecity may provide by ordinance that approval by a city of a phased developmentplan shall vest the zoning classification or classifications so approved for aperiod not to exceed five years.  The document that triggers such vesting shallbe so identified at the time of its approval.  The city still may require thelandowner to submit a site specific development plan for approval by the citywith respect to each phase or phases in order to obtain final approval todevelop within the restrictions of the vested zoning classification orclassifications.  Nothing in this section shall be construed to require a cityto adopt an ordinance providing for vesting of rights upon approval of a phaseddevelopment plan.

(4)        Following approval or conditional approval of a sitespecific development plan or a phased development plan, nothing in this sectionshall exempt such a plan from subsequent reviews and approvals by the city toensure compliance with the terms and conditions of the original approval,provided that such reviews and approvals are not inconsistent with saidoriginal approval. Nothing in this section shall prohibit the city fromrevoking the original approval for failure to comply with applicable terms andconditions of the approval or the zoning ordinance.

(5)        Upon issuance of a building permit, the provisions of G.S.160A‑418 and G.S. 160A‑422 shall apply, except that a permit shallnot expire or be revoked because of the running of time while a vested rightunder this section is outstanding.

(6)        A right which has been vested as provided in this section shallterminate at the end of the applicable vesting period with respect to buildingsand uses for which no valid building permit applications have been filed.

(e)        Subsequent changes prohibited; exceptions.

(1)        A vested right, once established as provided for in thissection, precludes any zoning action by a city which would change, alter,impair, prevent, diminish, or otherwise delay the development or use of theproperty as set forth in an approved site specific development plan or anapproved phased development plan, except:

a.         With the written consent of the affected landowner;

b.         Upon findings, by ordinance after notice and a publichearing, that natural or man‑made hazards on or in the immediate vicinityof the property, if uncorrected, would pose a serious threat to the publichealth, safety, and welfare if the project were to proceed as contemplated inthe site specific development plan or the phased development plan;

c.         To the extent that the affected landowner receivescompensation for all costs, expenses, and other losses incurred by thelandowner, including, but not limited to, all fees paid in consideration offinancing, and all architectural, planning, marketing, legal, and otherconsultant's fees incurred after approval by the city, together with interestthereon at the legal rate until paid.  Compensation shall not include anydiminution in the value of the property which is caused by such action;

d.         Upon findings, by ordinance after notice and a hearing, thatthe landowner or his representative intentionally supplied inaccurateinformation or made material misrepresentations which made a difference in theapproval by the city of the site specific development plan or the phaseddevelopment plan; or

e.         Upon the enactment or promulgation of a State or federal lawor regulation which precludes development as contemplated in the site specificdevelopment plan or the phased development plan, in which case the city maymodify the affected provisions, upon a finding that the change in State orfederal law has a fundamental effect on the plan, by ordinance after notice anda hearing.

(2)        The establishment of a vested right shall not preclude theapplication of overlay zoning which imposes additional requirements but doesnot affect the allowable type or intensity of use, or ordinances or regulationswhich are general in nature and are applicable to all property subject to land‑useregulation by a city, including, but not limited to, building, fire, plumbing,electrical, and mechanical codes.  Otherwise applicable new regulations shallbecome effective with respect to property which is subject to a site specificdevelopment plan or a phased development plan upon the expiration ortermination of the vesting rights period provided for in this section.

(3)        Notwithstanding any provision of this section, theestablishment of a vested right shall not preclude, change or impair theauthority of a city to adopt and enforce zoning ordinance provisions governingnonconforming situations or uses.

(f)         Miscellaneous provisions.

(1)        A vested right obtained under this section is not a personalright, but shall attach to and run with the applicable property.  Afterapproval of a site specific development plan or a phased development plan, allsuccessors to the original landowner shall be entitled to exercise such rights.

(2)        Nothing in this section shall preclude judicialdetermination, based on common law principles or other statutory provisions,that a vested right exists in a particular case or that a compensable takinghas occurred.  Except as expressly provided in this section, nothing in thissection shall be construed to alter the existing common law.

(3)        In the event a city fails to adopt an ordinance settingforth what constitutes a site specific development plan triggering a vestedright, a landowner may establish a vested right with respect to property uponthe approval of a zoning permit, or otherwise may seek appropriate relief fromthe Superior Court Division of the General Court of Justice. (1989 (Reg. Sess., 1990), c. 996, s. 2.)