Unified Development Ordinance

Sec. 10.2.4. Rezoning

Sec. 10.2.4. Rezoning aaron.sheppard… Wed, 05/24/2023 - 09:26
10-2-4
  1. Applicability
    This Section applies to requests to change the City’s Official Zoning Map (“rezonings”) and TCZ’s as defined in Sec. 10.2.3. Rezonings and TCZ’s are legislative decisions.
  2. Pre-Application Conference
    Before submitting an application for a rezoning or TCZ, an applicant shall schedule a pre-application conference with the Planning Director to discuss the applicable procedures, standards and regulations. This requirement may be waived by the Planning Director.
  3. Neighborhood Meetings
    1. Pre-Submittal Neighborhood Meeting.
      1. A pre-submittal neighborhood meeting is required for all rezoning and TCZ applications, except where the City is the applicant. The applicant shall provide an opportunity to meet with property owners of the development site and property owners and tenants within the mailing radius described in Sec. 10.2.1.C.1. The location of the neighborhood meeting must be at, or in reasonable proximity to, the subject property.
      2. The required pre-submittal neighborhood meeting must be conducted prior to submittal of the rezoning or TCZ application. The meeting may not occur more than 6 months prior to the submittal of the application. Notice of the neighborhood meeting must be provided in accordance with Sec. 10.2.1.C.1.
      3. A written report of the meeting, made by the applicant, shall be included with the application  given to City Planning. The report shall include at a minimum, a list of those persons and organizations contacted about the neighborhood meeting, the date, time and location of the meeting, a roster of the persons in attendance at the meeting and a summary of issues discussed at the meeting.
    2. Second Neighborhood Meeting.
      1. A second neighborhood meeting shall be required for applications requiring a pre-submittal neighborhood meeting, which meet any of the following criteria:
        1. The subject property is five acres or more;
        2. The proposed change increases the maximum building height to 5 stories or more, or increases the maximum building height by 5 stories or more;
        3. The proposed change increases residential density by an additional 10 dwelling units per acre;
        4. The request is to change from a Residential or Conservation Management (CM) zoning district to a mixed use or special zoning district (other than CM); or
        5. The request seeks to create any type of PD district.
      2. The second required neighborhood meeting must be conducted in a manner consistent with Sec. 10.2.4.C.1.a. and after City Planning has confirmed that the application is complete, but no earlier than thirty days following the application submittal date. Notice of the second required neighborhood meeting must be provided in accordance with Sec. 10.2.1.C.1.; however, the notice radius shall be one thousand feet. In addition, the property shall be posted in accordance with Sec. 10.2.1.C.4.
      3. A report of the second meeting, made by the applicant, shall be delivered to City Planning no less than ten days prior to the first Planning Commission meeting at which the application is considered. The report shall include at a minimum, a list of those persons and organizations contacted about the neighborhood meeting, the date, time and location of the meeting, a roster of the persons in attendance at the meeting and a summary of issues discussed at the meeting. Any other person attending the second neighborhood meeting may submit written comments following the meeting; however, the written comments must be received by City Planning within the same time frame described above in order to be included in the Planning Commission agenda packet.
  4. Application Requirements
    1. General Requirements
      1. An application for any rezoning or TCZ shall be submitted in accordance with the application requirements of Sec. 10.2.1.B.
      2. Where practicable, rezonings should correspond with the boundary lines of existing tracts and lots.
      3. No rezoning that down-zones property shall be initiated without the written consent of all property owners whose property is the subject of the proposed down-zoning, unless the down-zoning amendment is initiated by the City. "Down-zoning" means a zoning amendment that affects an area of land in one of the following ways:
        1. By decreasing the development density of the land to be less dense than was previously allowed; or
        2. By reducing the permitted uses of the land to fewer uses than were previously allowed.
      4. If the change in intensity from the proposed rezoning or TCZ meets or exceeds the thresholds for a traffic impact analysis (“TIA”) as described in the Street Design Manual, then submittal and staff review of a TIA shall be required as a part of completing the application.
      5. No application shall be deemed complete until all the applicable documentation described in Sec. 10.2.4.D. has been submitted
      6. An application for any rezoning or a TCZ may be, but is not required to be, submitted concurrently with an application for a Comprehensive Plan amendment, and the two applications may be processed and reviewed concurrently.
      7. Should the property subject to the application not include an entire tax parcel, a survey-based metes and bounds of the subject property shall be required.
      8. If an application is placed on hold at the request of the applicant for a period of six (6) consecutive months or more, or the applicant fails to respond to comments or provide additional information requested by the City for a period of six (6) consecutive months or more, the application review shall be discontinued and the application will be considered administratively withdrawn. A new application and fee shall be required to resume the rezoning effort. The development regulations in effect at the time the new application is submitted shall be applied to the application.
    2. Additional Requirements for Conditional Rezoning and TCZ Applications
      1. Conditional rezoning and TCZ applications must contain conditions which propose greater restrictions on development and use of the property than would apply in the corresponding general use district, and this UDO. The conditions may specify the use or uses prohibited or the use or uses allowed, including the maximum number of dwelling units and all development regulations which are requested for the property submitted for rezoning; however, the requested use or uses must be permitted in the corresponding general use district.
      2. All those regulations which apply to the corresponding general use zoning district are the minimum requirements in the conditional district.
      3. The City Council may accept zoning conditions that alter the maximum block standards in Sec. 8.3.2., the stub streets standards in Sec. 8.3.4.C. and the driveway standard for Residential Uses, Mixed Use and Nonresidential Uses in Sec. 8.3.5.C.2. and 3. 

        1. If this provision is used in a zoning condition, a pedestrian passage meeting the standards of 8.5.8.b must be provided in the future site plan or subdivision that maintains the same connectivity that the block perimeter standard would have required. A pedestrian passage is not required if it would be obstructed by any of the following: i. existing improvements where the value of such improvements is more than twice the land value of the parcel on which the improvements are located; railroad, controlled access highway, steep slopes in excess of 25% within 10 feet of the property line, or watercourse that has one (1) square mile of drainage area or more. 

        2. No such zoning conditions shall be accepted for applications within the -TOD unless the means of providing for safe, efficient and convenient vehicular, bicycle and pedestrian circulation are demonstrated in a site plan, rendering or other image included with the conditional rezoning application per Sec. 10.2.4.D.2.g. Such zoning conditions may be approved by the City Council when the offered zoning conditions provide for safe, efficient and convenient vehicular and pedestrian access within developments and between adjacent developments and do not adversely affect traffic congestion. When these zoning conditions are included, the application shall be accompanied by additional information addressing how safe, efficient, and convenient vehicular and pedestrian access within developments and between adjacent developments is being achieved.

      4. Zoning conditions associated with a lot line common to the subject property and an adjacent property shall reference the Deed Book/Page Number or recorded Book of Maps/Page Number of the associated adjacent property.
      5. Exclusionary conditions which discriminate based on race or religion, specify ownership status or a minimum value of improvements shall not be submitted as a part of the petition.
      6. No condition shall be submitted that proposes to regulate right-of-way reimbursement values or prohibit submittal of a traffic impact analysis. Any condition that prohibits street access or public street connections or extensions shall comply with subsection c above.
      7. Site plans, renderings or other images may be submitted as part of the conditional rezoning application provided all elements of the site plan, rendering or image graphically illustrate the written text of the conditions in which case the written zoning conditions shall remain as the controlling instrument.
      8. No condition may be made part of the petition which specifies the establishment and protection of tree conservation areas or tree protection areas unless the condition ensures that 100% of the critical root zones of trees proposed for protection and located on the subject rezoned property shall also be undisturbed areas.
      9. No condition may be made part of the petition which specifies the authorization or consideration of a Design Alternate.
      10. No variance shall be allowed to a zoning condition that is approved in conjunction with a conditional rezoning or TCZ.
    3. Additional Requirements for CMP and PD District Application
      In addition to a Rezoning Application, a Master Plan Application must be submitted in complete form to initiate a Campus (Sec. 4.6.3. Campus (CMP)) or Planned Development (Sec. 4.7.4. Planned Development (PD)) rezoning.
    4. Additional Requirements for -HOD-G and -HOD-S Applications
      1.  Any application for rezoning property to an -HOD-G and or -HOD-S districts, not filed by the City, must be signed by all of the property owners within the area proposed to be rezoned to an historic overlay district.
      2. An investigation and report describing the significance of the buildings, structures, features, sites or surroundings included in any proposed -HOD-G and -HOD-S and a description of the boundaries of the district, changes in boundaries or de-designation due to loss of significance, shall be prepared and/or reviewed by the Historic Development Commission. The City Council shall refer the report to the North Carolina Department of Cultural Resources.
      3. The Department of Cultural Resources, acting through an agent or employee designated by its Secretary, may analyze and make recommendations concerning such report and description of proposed boundaries. Failure by the Department of Cultural Resources to submit its written analysis and recommendations to the City within 30 calendar days after a written request for such analysis has been received by the Department of Cultural Resources shall relieve the City of any responsibility for awaiting such analysis (N.C. Gen. Stat. §160D-944(b)(2).
      4. The City Council shall refer the report and proposed boundaries to the Planning Commission, in accordance with Sec. 10.2.4.F.4.
      5. The City Council may refer the report to any other interested body for its recommendations prior to taking action to amend the Official Zoning Map.
    5. Additional Requirements for -NCOD Applications
      1. Except for applications filed by the City, City Planning is instructed not to accept -NCOD applications unless the application meets all the following:
        1. Is requesting that either at least a minimum of 15 contiguous acres be zoned -NCOD or that an existing -NCOD be extended. If allowed in the underlying zoning district, all uses in the civic use category shall be excluded when determining the minimum 15-acre requirement; however, such civic uses may be used in determining contiguity of the area.
        2. Is signed by all of the property owners within the area proposed to be rezoned -NCOD.
        3. Is applied to an area where at least 75% of the lots are developed.
        4. Is located in an area in which the City Council has adopted into Sec. 5.4.3.F. specific neighborhood built environmental characteristics and regulations.
      2. Within four years following the City Council adoption of specific neighborhood built environmental characteristics and regulations, City Planning may accept an application rezone property to a -NCOD.
      3. If the City Council accepts a rezoning petition to apply a -NCOD, staff shall provide direct mailed notice to all property owners in the proposed overlay district. Additional mailed notice shall be provided in accordance with Sec. 10.2.1.C.1.
    6. Additional Requirements for DX- District Applications
      New applications requesting a DX- District must be for property located contiguous to or directly across the street from an existing DX- District.
    7. Additional Requirements for TOD- Applications
      Except for applications initiated by the City, new applications requesting a TOD District must be for property located contiguous to or directly across the street from an existing TOD- District or within 1,320 feet of a bus rapid transit (BRT) route.
  5. Approval Process
    1. Planning Director Action
      1. The Planning Director shall review the application for a proposed rezoning or TCZ in light of the considerations for Planning Director Review in Sec. 10.2.4.E. In reviewing any required CMP or PD master plan, the Planning Director shall consult with the heads of the departments of Public Utilities, Transportation, Engineering Services, Parks and Cultural Resources, Development Services and Fire to check the proposed master plan against the requirements of the UDO and other applicable technical requirements of the City.
      2. Following review, the Planning Director shall prepare a report and forward the application to the Planning Commission.
    2. Planning Commission Action
      1. The Planning Commission, or one of its committees shall hold a legislative hearing on the application. The legislative hearing shall be noticed in accordance with the provisions of Sec. 10.2.1.C.
      2. During the review and deliberations of the Planning Commission, conditions may be removed, added, or modified, zoning districts changed and/or zoning boundaries altered, no more than one (1) time.
      3. No changes to the conditions shall be considered and deliberated on by the Planning Commission unless the following limitations are met:
        1. Unsigned conditions must be submitted to City Planning at least 10 calendar days before the date of the next meeting at which the Planning Commission discussion of the application is scheduled;
        2. The unsigned conditions must be signed by all owners of the property sought to be rezoned and submitted to City Planning at least two business days before the date of the next meeting at which the Planning Commission discussion of the application is scheduled; and
        3. The signed conditions cannot modify the unsigned conditions except to respond to staff comments or to make non-substantive or clerical corrections.
      4. Within 60 days after its receipt of the proposed rezoning, the Planning Commission shall make its recommendation to the City Council. Within this time period, the Planning Commission may request extensions of time which may be granted by the City Council. If no recommendation is made within this time period and if no extension is granted, the City Council may take action on the application without further involvement of the Planning Commission.
      5. When conducting a review of proposed rezoning or TCZ pursuant to this section, the Planning Commission shall advise and comment on whether the proposed action is consistent with the Comprehensive Plan and any other officially adopted plan that is applicable.
      6. The Planning Commission shall make its recommendation to the City Council in writing. The Planning Commission shall recommend that the request be approved, approved as revised or denied. A written recommendation shall address plan consistency and other matters as deemed appropriate by the Planning Commission.
      7. In no case shall changes to the conditions be accepted following an action by the Planning Commission and prior to the Planning Commission's written recommendation being received by the City Council, other than non-substantive, technical revisions to the text of the conditions, in which case such revised conditions must be signed by all of the property owners of the land proposed to be rezoned to a conditional district and must be submitted to City Planning at least 2 business days before the date the City Council schedules the matter for public hearing.
    3. Legislative Hearing by City Council
      1. Following the recommendation of the Planning Commission or expiration of the applicable Planning Commission review period without a recommendation, the City Council shall conduct a legislative hearing. City Council shall act to schedule the hearing within 60 days of receiving the request from the Planning Commission, and notice shall be given in accordance with Sec. 10.1.8.
      2. Changes to the conditions may be made following City Council’s receipt of the Planning Commission recommendation subject to the following limitations:
        1. Unsigned conditions with the changes must be submitted to City Planning at least 10 calendar days before City Council acts to schedule the matter for public hearing;
        2. The unsigned conditions must be property sought to be rezoned and submitted to City Planning at least two business days before the date the City Council acts to schedule the public hearing; and
        3. The signed conditions cannot modify the unsigned conditions except to respond to staff comments or to make non-substantive or clerical corrections.
    4. Conduct of the Legislative Hearing
      1. The Planning Director shall provide a report describing the application, including analysis of the considerations listed in Sec. 10.2.4.F. as deemed appropriate.
      2. The presiding officer shall open the legislative hearing. Those in favor of the rezoning will be allowed a total of 8 minutes to explain their support and those against the rezoning will be allowed a total of 8 minutes to explain their opposition. Additional time may be allowed by the City Council, but must be the same amount of time for those in support and against.
    5. City Council Action
      1. Revisions may be made to proposed conditions in conditional rezoning and TCZ cases during the legislative hearing or within 30 days following the date on which the hearing is closed subject to the following limitations:
        1. Unsigned conditions with the changes must be submitted to City Planning at least 10 calendar days before the date of the next meeting at which the City Council discussion of the application is scheduled;
        2. The unsigned conditions must be signed by all owners of the property sought to be rezoned and submitted to City Planning at least two business days before the date of the next meeting at which the City Council discussion of the application is scheduled; and
        3. The signed conditions cannot modify the unsigned conditions except to respond to staff comments or to make non-substantive or clerical corrections.
      2. Signed conditions may be submitted electronically so long as the original signed petition is received by the Planning Director at least 24 hours before the date of the meeting where final City Council action is taken; provided that the electronic signature is (1) unique to the person using it; (2) capable of certification; (3) under the sole control of the person using it; and (4) linked to the same page as the petition.
      3. Should the applicant wish to revise the zoning conditions to be less restrictive or revise the request to a less restrictive zoning district, the City council shall schedule a new legislative hearing and provide notice in accordance with the provisions of Sec. 10.2.1.C. The applicant shall be responsible for the cost of legal advertisement of the new legislative hearing. The City Council may, in its sole discretion, refer such an application to the Planning Commission before scheduling the new legislative hearing. If the City Council refers an application that will be subject to a new legislative hearing back to the Planning Commission for review, the applicant shall conduct a neighborhood meeting in accordance with Sec. 10.2.4.C 2.
      4. When approving or denying any rezoning or TCZ, the City Council shall approve a brief statement describing whether its action is consistent or inconsistent with the Comprehensive Plan.
      5. If a rezoning or TCZ is adopted and the action was deemed inconsistent with the adopted plan, the zoning amendment shall have the effect of also amending the future land-use map, and no additional request or application for a plan amendment shall be required.
      6. A statement analyzing the reasonableness of the proposed rezoning or TCZ shall also be approved by the City Council. This statement of reasonableness may consider, among other factors:
        1. the size, physical conditions, and other attributes of the area proposed to be rezoned;
        2. the benefits and detriments to the landowners, the neighbors, and the surrounding community;
        3. the relationship between the current actual and permissible development on the tract and adjoining areas and the development that would be permissible under the proposed amendment;
        4. why the action taken is in the public interest; and
        5. any changed conditions warranting the amendment.
      7. The statement of reasonableness and the plan consistency statement may be approved as a single statement.
  6. Considerations for Planning Director Review
    The following is a non-exclusive list of considerations the Planning Director may take into account when reviewing a rezoning or TCZ application:
    1. The application corrects an error or meets the challenge of some changing condition, trend or fact;
    2. The application is generally consistent with the Comprehensive Plan;
    3. The application is generally consistent with the stated purpose and intent of this UDO;
    4. The application will reinforce the existing or planned development pattern of the area;
    5. The site is appropriate for the development allowed in the proposed district;
    6. The application is reasonable and in the public interest;
    7. The City and other service providers will be able to provide sufficient public facilities and services including schools, roads, recreation facilities, wastewater treatment, water supply and stormwater facilities, police, fire and emergency medical services, while maintaining sufficient levels of service to existing development; and
    8. The application will not have a significant adverse impact on property in the vicinity of the subject property.
  7. Time Lapse between Applications
    1. Limitations Between Applications
      1. In the absence of a special waiver approved by the City Council, the Planning Director is not authorized to accept an application for a rezoning or a TCZ on the same property that was the subject of an application advertised for a City Council legislative hearing unless 24 months has passed since the date of the withdrawal or denial of the prior application.
      2. The 24-month waiting period does not apply to any City Council-initiated rezoning.
    2. Special Waiver
      City Council may grant a waiver of the 24-month waiting period for one or more of the following grounds:
      1. Materially changed circumstances;
      2. Clerical correction as the basis for the previous rezoning;
      3. Newly discovered evidence of adverse impact of the current zoning which by due diligence could not have been discovered in time for the earlier public hearing;
      4. Substantially changed zoning request; or
      5. For any other circumstance determined by the City Council to be reasonable and in the public interest.
  8. Modification of Previously-Approved Conditions or PD Master Plan
    When a property has been rezoned into a conditional district, including PD and CMP, the property owner can request subsequent modifications to the zoning conditions or Master Plan. Modifications can be minor or major; however, only PD and CMP districts are eligible for minor modifications.
    1. Minor modifications to PD that can be administratively approved are described in Sec. 4.7.6.A.
    2. Minor modifications to CMP that can be administratively approved are described in Sec. 4.6.4.A.
    3. If multiple parcels or land are subject to a conditional zoning, the owners of individual parcels may apply for modification of the conditions so long as the modification would not result in other properties failing to meet the terms of the conditions. Any modifications approved shall only be applicable to those properties whose owners petition for the modification.
    4. Modification that do not qualify as minor are major and shall require a new zoning or TCZ application.