Article-10 - Administrative Procedures_Updated_06-05-2023
Unified Development Ordinance | New Hanover County, NC 10-1
Article 10: Administrative Procedures
Section 10.1. Advisory and Decision-Making Bodies
10.1.1. GENERAL
A. The following bodies and County staff have powers and responsibilities in
administering and reviewing development applications under this Ordinance:
1. Board of Commissioners;
2. Planning Board;
3. Board of Adjustment;
4. Technical Review Committee (TRC);
5. Planning Director;
6. Building Safety Director; and
7. County Engineer.
B. Table 10.1.1: Summary Table of Development Review Responsibilities, summarizes
the specific review responsibilities of advisory and decision-making bodies and
County staff for each type of application. [05-03-2021]
10-2 New Hanover County, NC | Unified Development Ordinance
[05-03-2021][11-14-2022]
10.1.2. BOARD OF COMMISSIONERS
To exercise the authority granted to the Board of Commissioners by state law, the
Board shall have the following powers and duties under this Ordinance:
A. To review and make a decision on applications for the following:
1. Text amendments (Section 10.3.1);
2. Zoning map amendments (Section 10.3.2);
3. Conditional zonings (Section 10.3.3);
4. Planned developments (Section 10.3.4); and
5. Special use permits (Section 10.3.5).
B. To adopt a schedule of fees governing applications under this Ordinance, and civil
penalties for violations of this Ordinance; and
Unified Development Ordinance | New Hanover County, NC 10-3
C. To take any other action not delegated to the Planning Board, Board of Adjustment,
Technical Review Committee (TRC), Planning Director, Building Safety Director, or
County Engineer as the Board of Commissioners may deem desirable and necessary
to implement the provisions of this Ordinance, in accordance with state law.
D. To enter into private development agreements as provided in Article 10 of N.C.G.S.
Chapter 160D after conducting a public hearing. These development agreements
may require a commitment of public and private resources for large scale projects
containing at least 25 acres or more exclusive of wetlands, mandatory buffers, and
other portions of the property precluded from development. In entering into such
agreements, the County may not exercise any authority or make any commitment
not authorized by general or local act and may not impose any tax or fee not
authorized by otherwise applicable law. [05-03-2021]
10.1.3. PLANNING BOARD
The Planning Board is hereby established in accordance with state law.
A. Powers and Duties
[05-03-2021]
The Planning Board shall have the following powers and duties:
1. To review and make a recommendation on the following applications:
a. Text amendments (Section 10.3.1);
b. Zoning map amendments (Section 10.3.2);
c. Conditional zonings (Section 10.3.3); and
d. Planned Developments (Section 10.3.4);
2. To provide a preliminary forum for review of special use permits (Section
10.3.5), provided that no part of the preliminary forum or recommendation
may be used as a basis for the deciding board;
3. To make recommendations to the Board of Commissioners on studies,
plans, and ordinances regarding growth, development, and redevelopment
in the County, including comprehensive land use plans and development
regulations; and
4. Any other powers and duties delegated to it by the Board of
Commissioners, consistent with state law.
B. Membership, Appointment, and Terms of Office
1. The Planning Board shall consist of seven members appointed by the
Board of Commissioners.
2. Planning Board members shall be residents of the County.
3. Planning Board members shall be appointed to three-year, staggered
terms, except that in case of vacancy occurring during a term, the same
shall be filled by the Board of Commissioners for the unexpired portion of
such term.
4. Planning Board members shall be appointed to three-year terms that are
staggered such that the terms of not more than three members expire in
10-4 New Hanover County, NC | Unified Development Ordinance
any given year. Members may be appointed to successive terms without
limitation.
5. The Board of Commissioners shall appoint Planning Board members to fill
vacancies occurring for reasons other than expiration of terms for the
period of the unexpired term only.
6. Any Planning Board member may be removed at any time with or without
cause by the Board of Commissioners.
C. Officers and Rules of Procedure
The Planning Board shall elect its own officers and shall adopt the rules of procedure
under which it will operate, including establishing the time(s) and place(s) of
meetings. Copies of the rules of procedure shall be made available for public
inspection in the Planning Department.
D. Staff
The Planning Director shall serve as the professional staff liaison to the Planning
Board and provide it with administrative support.
E. Meetings
1. Regular meetings of the Planning Board shall be open to the public. There
shall be no secret or executive meetings.
2. The Planning Board shall keep minutes of its meetings, in which shall be
recorded all actions taken by the Board on all matters considered. Such
minutes shall be public records.
10.1.4. BOARD OF ADJUSTMENT
The Board of Adjustment is hereby established in accordance with state law.
A. Powers and Duties
[05-03-2021]
The Board of Adjustment shall have the following powers and duties:
1. To review and make a decision on the following:
a. Zoning and subdivision variances (Section 10.3.11);
b. Reasonable accommodations (Section 10.3.13); and
c. Appeals of administrative decisions made under authority of this
Ordinance (including interpretations) (Section 10.3.14); and
2. Any other powers and duties delegated to it by the Board of
Commissioners, consistent with state law.
B. Membership, Appointment, and Terms of Office
1. The Board of Adjustment shall consist of five regular members and three
alternate members, appointed by the Board of Commissioners.
2. Members of the Board of Adjustment shall be residents of the County.
3. Members of the Board of Adjustment shall be appointed to three-year terms
that are staggered such that the terms of not more than two regular
Unified Development Ordinance | New Hanover County, NC 10-5
members and one alternate member expire in any given year. Members
may be appointed to successive terms without limitation.
4. The Board of Commissioners shall appoint Board of Adjustment members
to fill vacancies occurring for reasons other than expiration of terms for the
period of the unexpired term only.
5. Any Board of Adjustment member may be removed for cause by the Board
of Commissioners upon written charges and after a public hearing.
C. Officers and Rules of Procedure
1. The Board of Adjustment shall elect one of its members as Chair and
another as Vice Chair, each of whom shall serve one-year terms.
2. The Board of Adjustment shall adopt the rules of procedure under which it
will operate, including establishing the time(s) and place(s) of meetings.
Copies of the rules of procedure shall be made available for public
inspection in the Planning Department.
D. Staff
The Planning Director shall serve as the professional staff liaison to the Board of
Adjustment and provide it with administrative support.
E. Meetings
1. Regular meetings of the Board of Adjustment shall be open to the public.
2. The Board of Adjustment shall keep minutes of its meetings, in which shall
be recorded all actions taken by the Board of Adjustment, including the vote
of each member upon every question, or indicating the member’s absence
or failure to vote, and all records of its examination and any other official
actions. Such minutes shall be public records.
10.1.5. TECHNICAL REVIEW COMMITTEE (TRC)
The Technical Review Committee (TRC) is hereby established in accordance with
state law.
A. Powers and Duties
The TRC shall have the following powers and duties:
1. To review and make a decision on the following applications:
a. Major site plans (Section 10.3.6.D);
b. Major subdivision preliminary plans (Section 10.3.7.D.1); and
c. Major subdivision construction plans (Section 10.3.7.D.2);
2. To review and make a recommendation on the following applications:
a. Conditional zonings, at the applicant’s request (Section 10.3.3);
b. Planned developments, at the applicant’s request (Section 10.3.4);
c. Minor site plans, at the applicant’s request (Section 10.3.6.E); and
d. Major subdivision final plats (Section 10.3.7.D.3); and
10-6 New Hanover County, NC | Unified Development Ordinance
3. To provide its expertise and technical assistance to the County’s other
decision-making bodies, upon request.
B. Membership
The TRC shall consist of representatives from County departments and agencies
involved with development review, including the following:
1. Planning;
2. Engineering;
3. Fire Services;
4. Cape Fear Public Utility Authority; and
5. Environmental Health.
C. Chair
The Planning Director shall serve as Chair of the TRC, and shall schedule committee
meetings, coordinate the committee’s activities, preside over committee meetings,
prepare committee reports, and serve as the liaison to the departments and agencies
involved in the TRC review process.
D. Meetings
1. The Planning Director shall establish a regular meeting schedule to allow
the TRC to take action as expeditiously as reasonably possible on matters
before it. The TRC may make recommendations and decisions on
applications at its regular meetings or by other means established by the
Planning Director to ensure an efficient review process.
2. The purpose of TRC meetings is to allow for discussion of comments
provided by the TRC on specific development applications or conceptual
proposals with the applicant, and for the TRC to make a decision or
recommendations on the application, as appropriate.
E. Review and Comment by Other Departments or Agencies
Representatives from county departments and from non-county regulatory agencies
involved with development review may participate in the TRC review process and
provide comments on development applications. These agencies include, but are
not limited to:
1. The North Carolina Department of Transportation;
2. The Wilmington Metropolitan Planning Organization;
3. The North Carolina Department of Environmental Quality; and
4. The United States Army Corps of Engineers.
Unified Development Ordinance | New Hanover County, NC 10-1
10.1.6. PLANNING DIRECTOR
A. The Planning Director shall have the following powers and duties under this
Ordinance:
1. To review and make a decision on the following applications:
a. Minor site plans (Section 10.3.6);
b. Major subdivision final plats (Section 10.3.7);
c. Minor subdivision plats (Section 10.3.7);
d. Zoning compliance approvals (Section 10.3.8);
e. Tree removal permits (Section 10.3.9); and
f. Interpretations (Section 10.3.15);
2. To review and prepare reports and/or recommendations, as appropriate, to
advisory and decision-making bodies on the following applications:
a. Text amendments (Section 10.3.1);
b. Zoning map amendments (Section10.3.2);
c. Conditional zonings (Section 10.3.3);
d. Planned developments (Section 10.3.4);
e. Special use permits (Section 10.3.5);
f. Major site plans (Section 10.3.6);
g. Major subdivision preliminary plans (Section 10.3.7);
h. Zoning and subdivision variances (Section 10.3.11); and
i. Reasonable accommodations (Section 10.3.13);
3. To conduct pre-application conferences in accordance with Section 10.2.2,
Pre-Application Conference;
4. To establish requirements for the content, format, and submission schedule
for development applications reviewed under this Ordinance;
5. To compile and maintain an Administrative Manual that supplements
procedures for development review required by this Ordinance, and which
may include detailed submittal and procedural requirements for
development applications, a schedule of application fees (as established
by the Board of Commissioners), and detailed specifications and
illustrations identifying how this Ordinance’s standards for landscaping,
infrastructure, and other aspects of development may be met;
6. To maintain the Official Zoning Map and related materials;
7. To serve as the Floodplain Administrator;
8. To serve as professional staff to the Planning Board and the Board of
Adjustment;
9. To provide expertise and technical assistance to the County’s review and
decision-making bodies;
10-2 New Hanover County, NC | Unified Development Ordinance
10. To enforce this Ordinance in accordance with Article 12: Violations and
Enforcement;
11. To carry out any other activities necessary for the administration of this
Ordinance that are not delegated to other bodies or officials; and
12. To prepare and implement studies, plans, and ordinances regarding
growth, development, and redevelopment in the County, including
comprehensive land use plans and development regulations.
B. The Planning Director may delegate any act authorized by this Ordinance to be
carried out by the Planning Director to professional-level staff under the Planning
Director’s direction.
C. The designated Planning Director for the purposes of this Ordinance is the Director
of the Planning Department, or the head of the equivalent department that carries out
the County’s planning and zoning functions.
10.1.7. COUNTY ENGINEER
The County Engineer shall have the following powers and duties:
A. Meet the objectives and enforce the stormwater management standards as stated
within Article 7: Stormwater Management; and [11-14-2022]
B. To accept applications for construction plans and to issue approval letters for the
installation of the required improvements in accordance with the approved plans and
the design standards specified in this Ordinance.
Section 10.2. Standard Review Procedures
10.2.1. GENERAL
A. This section sets forth the standard procedural steps that are generally required for
development applications reviewed under this Ordinance. Where a procedural step
is not required for a particular type of application, or where alternative procedures
are required, Section 10.3, Application-Specific Procedures, specifies the variations
from the standard review procedures. The procedural flow charts in Section 10.3
generally depict the procedural steps that apply to the review of each type of
application.
B. The County has prepared an Administrative Manual that includes information and
requirements for submitting applications for development review under this
Ordinance. That manual includes application submittal requirements, review
schedules, and additional details on application review procedures.
10.2.2. PRE-APPLICATION CONFERENCE
A. Purpose
The purpose of a pre-application conference is to provide an opportunity for the
applicant and staff to review submittal requirements, procedures, and schedules for
an anticipated development application. A pre-application conference is also
intended for the applicant and staff to discuss the scope, features, and impacts of
the proposed development.
Unified Development Ordinance | New Hanover County, NC 10-3
B. Applicability
A pre-application conference is required for applications for planned development
(see Section 10.3.4). A pre-application conference may be requested and held at
the applicant’s option for any other development application reviewed under this
Ordinance.
C. Effect
The pre-application conference is intended as a means of facilitating the review
process. Discussions held in accordance with this section are not binding on the
County or the applicant. Official reviews of development applications do not begin
until a formal application is submitted and determined to be complete.
10.2.3. COMMUNITY INFORMATION MEETING
[06-05-2023]
A. Purpose
[06-05-2023]
The purpose of a community information meeting is to provide an in-person or digital
forum so the applicant can inform owners and residents of nearby lands and other
stakeholders about a proposed development application, to allow the applicant to
explain the review process and site plan if applicable; and to provide the applicant
an opportunity to hear and address questions, comments and concerns about the
development proposal so they are able to resolve conflicts and outstanding issues
through discussion and modifications to the proposal, where possible.
B. Applicability
[06-05-2023]
1. At least one community information meeting that complies with the
requirements in this section is required to be held prior to submittal of any
of the following applications:
a. Conditional rezonings;
b. Planned developments; and
c. Special use permits for uses classified as intensive industry.
2. If a scheduled meeting is unable to be held due to technical issues beyond
the control of the applicant or isolated storm events (e.g. those not covered
by local declarations of emergency), the community meeting must be
rescheduled and held in accordance with requirements outlined in section
C below. If the required community information meeting report component
of the application is submitted within three business days after the
application deadline, the application will be eligible for scheduling on the
next Planning Board agenda.
3. The adequacy of a meeting held shall be considered by the Planning Board
and Board of Commissioners, as appropriate, in their decisions, but shall
not be subject to judicial review.
4. For applications other than those identified in subsection 1 above, a
community information meeting may be held in accordance with this
section at the option of the applicant.
10-4 New Hanover County, NC | Unified Development Ordinance
C. Procedure
[06-05-2023]
If a community information meeting is conducted, the applicant shall comply with the
requirements in subsections 1 and 2 below.
1. Notification
a. The applicant shall send written notice by first class mail and/or
personal delivery at least ten days prior to the date of the community
information meeting. Notice shall be provided to each owner of record
of land within 500 feet of and on the tax parcel or leased site, if
applicable, subject to the application. Notice shall be provided to the
Planning Department as outlined by administrative procedures.
b. The County shall provide notice of the community information meeting
by e-mail to the Sunshine List upon receipt of the applicant’s
notification.
2. Conduct of Meeting and Written Summary
a. The community information meeting shall be open to the public. At the
meeting, the applicant shall explain the development proposal and
application, inform attendees about the application review process,
respond to questions or concerns neighbors raise about the proposed
application, and discuss ways to resolve any conflicts or concerns.
b. The applicant shall prepare a written summary of the meeting. The
summary shall be included with the application materials and contain
the following information:
1. Date, time, and location of the meeting;
2. List of invitees and copies of any returned mailings received as of
the date of application;
3. List of meeting attendees;
4. Summary of issues discussed;
5. Description of any changes or adjustments made to the proposal as
a result of the comments and concerns received by the applicant;
and
6. Any other information the applicant deems appropriate.
c. The Planning Director may develop administrative requirements for
communicating and holding community meetings that fulfill the meeting
requirements of this section, as approved by the New Hanover County
Board of Commissioners, with subsequent amendments approved by
the County Manager.
10.2.4. APPLICATION SUBMITTAL AND ACCEPTANCE
A. Authority to File Applications
1. Unless expressly stated otherwise in this Ordinance, development
applications reviewed under this Ordinance shall be submitted by:
Unified Development Ordinance | New Hanover County, NC 10-5
a. The owner, contract purchaser, or any other person having a
recognized property interest in the land on which development is
proposed; or
b. A person authorized to submit the application on behalf of the owner,
contract purchaser, or other person having a recognized property
interest in the land, as evidence by a letter or document signed by the
owner, contract purchaser, or other person having a recognized
property interest in the land.
2. Applications for text amendments and general use zoning map
amendments may be submitted by any person, organization, or interested
party, including the Board of Commissioners, the Planning Board, or
County staff except that no text amendment or general use zoning map
amendment that down-zones property, as defined by this ordinance, shall
be initiated or considered without the written consent of all property owners
whose property is the subject of the down-zoning amendment, unless the
amendment is initiated by the County. [05-03-2021]
B. Application Content
1. The Planning Director shall establish the requirements for the content and
form of each type of specific development application reviewed under this
Ordinance and shall include the requirements in the Administrative Manual.
2. The Planning Director may amend and update application requirements as
necessary to ensure effective and efficient review.
3. The applicant bears the burden of ensuring that an application contains
sufficient information to demonstrate compliance with all applicable
standards in this Ordinance.
C. Application Fees
The Board of Commissioners shall establish application fees and may amend and
update those fees as necessary. The Planning Director shall include a schedule of
application fees in the Administrative Manual.
D. Schedule for Application Submittal and Review
1. The Planning Director shall establish a submittal and review schedule
(including submittal deadlines and time frames for review) for the various
types of development applications, and shall include the schedule in the
Administrative Manual.
2. The Planning Director may amend and update the submittal and review
schedule to ensure effective and efficient review under this Ordinance.
E. Application Submittal
Applications shall be submitted to the Planning Director in the form and having the
content established by the Planning Director, along with the appropriate application
fee.
10-6 New Hanover County, NC | Unified Development Ordinance
F. Determination of Application Completeness
1. Completeness Review
After submittal of an application in accordance with this Ordinance, the
Planning Director shall determine whether the application is complete or
incomplete. A complete application is one that:
a. Contains all information and materials required by this Ordinance,
including the requirements for the submittal of the particular type of
application established by the Planning Director in the Administrative
Manual;
b. Is in the form required by the Planning Director for the particular type of
application;
c. Includes information in sufficient detail to evaluate the application to
determine whether it complies with the appropriate standards of this
Ordinance; and
d. Is accompanied by the fee established for the particular type of
application.
2. Application Incomplete
a. If the Planning Director determines that the application is incomplete,
the Planning Director shall notify the applicant of the deficiencies in the
application. The applicant may correct the deficiencies and resubmit
the application for completeness determination.
b. The Planning Director shall not process an application for further review
until it is determined to be complete.
c. Applications fees shall not be accepted for applications determined to
be incomplete.
3. Application Complete
If the Planning Director determines that the application is complete, the
Planning Director shall accept the application for review in accordance with
the procedures and standards of this Ordinance.
G. Application Withdrawal
1. An applicant may withdraw a complete application at any time by submitting
a written notice to the Planning Director.
2. Applications fees shall not be refunded for withdrawn applications.
10.2.5. STAFF REVIEW AND ACTION
A. Staff Review
1. Applications shall be reviewed during the appropriate review cycle in place
when the application is determined to be complete.
2. The Planning Director shall distribute the application to all appropriate staff
and review agencies for review and comment.
Unified Development Ordinance | New Hanover County, NC 10-7
3. In considering the application, the Planning Director, the TRC, or other
County staff (as appropriate), shall review the application, relevant support
material, and any comments or recommendations from other staff and
review agencies to which the application was referred.
4. If deficiencies in complying with the applicable development standards are
identified, the Planning Director shall notify the applicant of such
deficiencies and provide the applicant a reasonable opportunity to discuss
the deficiencies and revise the application to address them. The Planning
Director may also offer the applicant comments or suggestions regarding
possible improvements to the proposed development that are not required
by this Ordinance.
B. Applications Subject to Decision by the Planning Director or TRC
1. If an application is subject to review and final decision by the Planning
Director or the TRC, the Planning Director or TRC, as appropriate, shall
either approve the application, approve the application subject to
conditions (as appropriate), or require that the application be revised to
address deficiencies in complying with applicable development standards.
2. If an application is subject to review and final decision by the TRC, the
application shall be approved or approved subject to conditions, if all
members of the TRC find that it complies with the standards each individual
member is responsible for administrating.
3. Conditions of approval shall be limited to those deemed necessary to
ensure compliance with the standards of this Ordinance. They shall be
related in both type and scope to the anticipated impacts of the proposed
development. All conditions of approval shall be expressly set forth in the
development approval or permit.
C. Applications Subject to a Public Hearing
1. Staff Report
If a public hearing is required for the application (see Table 10.1.1:
Summary Table of Development Review Responsibilities), the TRC shall
review and make a recommendation on the application if required by Table
10.1.1, and the Planning Director shall review the application, and TRC’s
recommendation, as applicable, and prepare a written staff report on the
application. The staff report may recommend one of the decisions
authorized for the particular type of application, as set forth in Section 10.3,
Application-Specific Procedures, and may identify and recommend
conditions of approval, as appropriate.
2. Distribution and Availability of Application and Staff Report
Within a reasonable time period before the public hearing or meeting at
which an application is scheduled for review by an advisory or decision-
making body, the Planning Director shall:
a. Schedule the public hearing or meeting and verify any required public
notification of the hearing in accordance with Section 10.2.6, Public
Hearing and Preliminary Forum Scheduling and Public Notification;
10-8 New Hanover County, NC | Unified Development Ordinance
b. Transmit the application, related materials, and the staff report to the
appropriate advisory or decision-making body;
c. Transmit a copy of the staff report to the applicant; and
d. Make the application, related materials, and staff report available for
examination by the public on the County’s website and/or in the
Planning Department during normal business hours, at a reasonable
cost.
10.2.6. PUBLIC HEARING AND PRELIMINARY FORUM SCHEDULING AND PUBLIC
NOTIFICATION
[05-03-2021]
If a public hearing or preliminary forum is required for the application (see Table
10.1.1: Summary Table of Development Review Responsibilities), the scheduling
and public notification of the public hearing or preliminary forum shall comply with
the requirements in this section. The scheduling and public notification requirements
of this section shall apply to Special Use Permit Preliminary Forums. [05-03-2021]
A. Scheduling of Public Hearing
1. General
a. If a public hearing is required for an application (see Table 10.1.1:
Summary Table of Development Review Responsibilities), the Planning
Director shall ensure that the public hearing on the application is
scheduled for a regularly scheduled meeting or a meeting specially
called for that purpose by the advisory or decision-making body
reviewing the application.
b. A required public hearing on the application shall be scheduled so there
is sufficient time for a staff report to be prepared and for the public
notification requirements to be satisfied under state law.
2. Deferral of Hearing upon Applicant’s Request
An applicant may request that an advisory or decision-making body’s
consideration of a development application at a public hearing be deferred
by submitting a written request for deferral to the Planning Director.
a. Request Before Notification Provided
If mailed or published notice has not been provided in accordance with
this Ordinance, the Planning Director shall consider and decide the
deferral request. An application may be deferred by the Planning
Director for a time not to exceed six months, for good cause.
Applications that are not considered by the advisory or decision-making
body after a six-month administrative deferral shall be considered
withdrawn.
b. Request After Notification Provided
If mailed or published notice has been provided in accordance with this
Ordinance, the deferral request shall be considered by the advisory or
decision-making body at the public hearing for which notice was
Unified Development Ordinance | New Hanover County, NC 10-9
provided and may be granted at the discretion of the advisory or
decision-making body for good cause, for a period of time determined
appropriate by the body. If a deferral is granted, the applicant shall be
responsible for any additional fees in accordance with the adopted fee
schedule. Applications that are not considered by the advisory or
decision-making body within six months after the advisory or decision-
making body grants a deferral shall be considered withdrawn.
B. Public Notification
All development applications shall comply with the North Carolina General Statutes
(N.C.G.S), the provisions of this section, and the other provisions of this Ordinance
with regard to public notification.
1. Required Type and Timing of Public Notification
Public notification of a public hearing on a development application shall
be provided in accordance with the requirements in Table 10.2.6.B.1:
Required Type and Timing of Public Notification, for the type of application
and the type of notice. In computing the required time periods, the day the
notice is published, mailed, or posted shall not be included, but the day of
the hearing shall be included.
10-10 New Hanover County, NC | Unified Development Ordinance
2. Sunshine List and Website Posted Notice Requirements
a. The Planning Director shall post the application materials and the date,
time, and location of the initial public hearing for which the application
is scheduled to the Planning Department’s website within ten business
days of the application submittal deadline established in the
Administrative Manual.
b. After the application has been posted to the Planning Department’s
website, the Planning Director shall send notice of the posting to the
Sunshine List (see Section 2.3, Definitions and Terms) within the same
timeframe stated above.
c. Additional materials submitted by the applicant after the application
submittal deadline shall be posted to the Planning Department’s
website when received by the Planning Director.
3. Published Notice Requirements
The Planning Director shall be responsible for providing published notice
of a public hearing in accordance with this section. Notice shall be
published in a newspaper that has general circulation in the County.
4. Mailed Notice Requirements
a. Except for community information meetings, the Planning Director shall
be responsible for mailing notice in accordance with this section. Notice
shall be mailed to:
1. The owners of the land subject to the application;
2. The applicant, if different from the land owner;
3. The owners, as shown on the County tax listing, of land within 500
feet of the land subject to the application (including owners of land
located outside of the County) whose address is known by
reference to the latest ad valorem tax records; and
4. Commanders of military bases located within five miles of the land
subject to the application when the application proposes:
Unified Development Ordinance | New Hanover County, NC 10-11
i. Changes to the Official Zoning Map;
ii. Changes that affect the range of allowable uses of land;
iii. Changes relating to telecommunication towers or windmills; or
iv. Changes to proposed major subdivision preliminary plats or an
increase of an approved subdivision by more than 50 percent
of the subdivision’s land area, including developed and
undeveloped land.
b. Notice shall be deemed mailed by its deposit in the United States mail,
first class, properly addressed, postage paid. The content and form of
the notice shall comply with Section 10.2.6.B.6, Notice Content, and
state law.
c. The Planning Director shall prepare an affidavit affirming that notice of
the public hearing meeting these standards was mailed. The affidavit
shall be conclusive that notice is given in accordance this section.
d. A copy of the mailed notice shall be maintained in the Planning
Department for public inspection during normal business hours.
5. Posted Notice Requirements
a. The Planning Director shall be responsible for posting notice required
by this section.
b. The posted notice shall be located on the land subject to the application
or on an adjacent public street right-of-way in a conspicuous location
so as to be clearly visible to the traveled portion of the respective street.
If no part of the subject land is visible from a public right-of-way, the
notice shall be posted in the public right-of-way of the nearest street.
When multiple parcels are included within an application, a posting on
each individual parcel is not required, but the Planning Director shall
post sufficient notices to provide reasonable notification to interested
persons.
c. The content and form of the notice shall be established by the Planning
Director in accordance with state law.
6. Notice Content
All notices for public hearings provided by mail (mailed notice), or
publication (publishing in a newspaper of general circulation in the County)
shall:
a. Identify the date, time, and location of the public hearing;
b. Identify the location of the land subject to the application; and
c. Describe the nature of the proposed development or action.
7. Constructive Notice
a. Minor defects in any notice shall not impair the notice or invalidate
proceedings pursuant to the notice if a bona fide attempt is made to
comply with applicable notice requirements. Minor defects in notice
may include, but are not limited to:
10-12 New Hanover County, NC | Unified Development Ordinance
1. Errors in a legal description; and
2. Typographical or grammatical errors that do not impede
communication of the notice to affected parties.
b. Failure of a party to receive written notice shall not invalidate
subsequent action. In all cases, however, the requirements for the
timing of the notice and for specifying the time, date, and location of a
public hearing and the location of the subject property shall be strictly
adhered to.
c. If questions arise at the hearing regarding the adequacy of notice, the
body conducting the hearing shall direct the Planning Director to make
a formal finding as to whether there is substantial compliance with the
notice requirements of this Ordinance
Unified Development Ordinance | New Hanover County, NC 10-1
10.2.7. PUBLIC HEARING AND PRELIMINARY FORUM PROCEDURES
[05-03-2021]
If a public hearing or preliminary forum is required for the application (see Table
10.1.1: Summary Table of Development Review Responsibilities), the public hearing
or preliminary forum shall comply with the requirements in this section. [05-03-2021]
A. General
[05-03-2021]
1. The burden of demonstrating that an application complies with applicable
review and approval standards of this Ordinance is on the applicant.
2. Any person may appear at a public hearing or preliminary forum and submit
testimony, documents, and materials, either individually or as a
representative of a person or an organization. Each person who speaks at
a public hearing or preliminary forum shall identify themselves, state their
home or business address, and if appearing on behalf of a person or
organization, state the name and mailing address of the person or
organization they represent.
3. The body conducting the public hearing or preliminary forum may place
reasonable time restrictions on the presentation of testimony and the
submission of documents and other materials. The body conducting the
hearing or preliminary forum may exclude testimony that it finds to be
irrelevant, immaterial, or unduly repetitious.
4. The body conducting the public hearing or preliminary forum may, on its
own motion or at the request of any person, continue the public hearing or
preliminary forum to a fixed date, time, and place.
5. The body conducting the public hearing or preliminary forum shall record
the proceedings by any appropriate means. The written or taped record of
oral proceedings, the hearing minutes, all applications, exhibits, and
papers submitted in any proceeding before the body conducting the public
hearing or preliminary forum, the staff report, and the recommendation or
decision shall constitute the record. All records of public hearings or
preliminary forums conducted by an advisory or decision-making body shall
be a public record, and open for inspection at the County offices during
normal business hours upon reasonable notice.
B. Order of Proceeding for Standard Public Hearings
[05-03-2021]
The order of proceedings at a standard public hearing shall be as follows:
1. Presentation of Staff Report
The Planning Director shall provide a brief introductory narrative and/or
graphic description of the application and present the staff report and any
review body findings and recommendations.
2. Applicant Presentation
The applicant shall present any information the applicant deems
appropriate.
10-2 New Hanover County, NC | Unified Development Ordinance
3. Public Comment
Public comments shall be heard. Any person other than the applicant or
applicant’s representatives may be permitted to speak in accordance with
the advisory or decision-making body’s rules of procedure, or at their
discretion, as appropriate, in support of or in opposition to the application.
4. Response to Comments and Presentation
The applicant, public, and Planning Director may respond to any
comments, documents, or materials presented as deemed appropriate by
the body conducting the meeting.
5. Close of Hearing
The person chairing the body conducting the hearing shall close the
hearing. After the hearing is closed, no additional testimony, evidence, or
public comments will be heard or considered.
C. Quasi-Judicial Public Hearings
Quasi-judicial public hearings shall comply with the following requirements in
addition to the requirements in subsections A and B above:
1. Ex Parte Communication
Ex parte communication between an applicant or an affected party and a
member of the body holding the hearing on the application is prohibited,
and must be disclosed during the hearing, if it occurs.
2. Sworn Testimony
All persons who will testify at the hearing shall be sworn in prior to their
submission of testimony and evidence.
3. Opportunity to Present Testimony and Evidence
Any person may present testimony and evidence, subject to Section
10.2.7.A.3 above.
4. Cross Examination
Cross-examination by members of the body conducting the hearing shall
be allowed. Cross-examination by the County, the applicant or applicant’s
representatives, and affected parties is also allowed, subject to the
authority of the chair of the body holding the hearing.
5. Consideration of Testimony and Evidence
The body conducting the hearing shall make its recommendation or
decision based on findings of fact supported by competent, substantial, and
material evidence presented at the hearing.
D. Order of Proceeding for Preliminary Forums
The order of proceedings at a preliminary forum shall be as follows:
Unified Development Ordinance | New Hanover County, NC 10-3
1. Staff Introduction
The Planning Director shall briefly introduce the application.
2. Applicant Presentation
The applicant shall present any information the applicant deems
appropriate.
3. Public Comment
Public comments shall be heard. Any person other than the applicant or
applicant’s representatives may be permitted to speak in accordance with
the Planning Board’s rules of procedure, or at the Board’s discretion, as
appropriate, in support of or in opposition to the application.
4. Response to Public Comments and Presentation
The applicant, public, and Planning Director may respond to any
comments, documents, or materials presented as deemed appropriate by
the Planning Board.
10.2.8. ADVISORY BODY REVIEW AND ACTION
If review by an advisory body (the Planning Board) is required for the application (see
Table 10.1.1: Summary Table of Development Review Responsibilities), the body
shall review and act on the application in accordance with the following procedures.
A. Review and Recommendation
[05-03-2021]
1. The advisory body shall conduct a public hearing or preliminary forum on
the application in accordance with 10.2.6.B.7.c,
Unified Development Ordinance | New Hanover County, NC 10-1
2. Public Hearing and Preliminary Forum Procedures, and shall consider the
application, relevant support materials, the staff report, and any public
comments made during the public hearing or preliminary forum. Following
the public hearing, the body shall recommend one of the decisions
authorized for the particular type of application, based on the applicable
review standards.
3. The advisory body’s recommendation shall be in writing and shall clearly
state the factors considered in making the recommendation and the basis
or rationale for the recommended decision.
4. If permitted for the particular type of application in accordance with Section
10.3, Application-Specific Procedures, the advisory body may recommend
conditions of approval. Conditions of approval must relate in both type and
extent to the anticipated impacts of the proposed development.
5. Unless the hearing is deferred or subject to a continuance, the advisory
body shall take action as promptly as reasonably possible in consideration
of the applicant, affected parties, and citizens of the County.
6. In the case of a special use permit preliminary forum, no recommendation
shall be made to the Board of Commissioners. [05-03-2021]
B. Revision of Application
Prior to the advisory body’s action on an application, the advisory body may continue
the public hearing to allow the applicant to make minor modifications to the
application that directly respond to specific requests or suggestions made by the
staff or the advisory body. In the case of a special use permit preliminary forum, such
minor modifications shall not require a continuance nor an additional preliminary
forum. [05-03-2021]
10.2.9. DECISION-MAKING BODY REVIEW AND ACTION
If an application is subject to a final decision by the Board of Commissioners or the
Board of Adjustment (see Table 10.1.1: Summary Table of Development Review
Responsibilities), such decision-making body shall review and act on the application
in accordance with the following procedures.
A. Review and Decision
1. The decision-making body shall conduct a public hearing on the application
in accordance with 10.2.6.B.7.c,
Unified Development Ordinance | New Hanover County, NC 10-1
2. Public Hearing and Preliminary Forum Procedures, and shall consider the
application, relevant support materials, the staff report, any advisory body
recommendation, and any public comments made during the public
hearing. Following the public hearing, the body shall make one of the
decisions authorized for the particular type of application, based on the
applicable review standards.
3. The decision-making body may remand the application to the appropriate
advisory body or County staff for further consideration of new information
or specified issues or concerns raised by the staff or the advisory body.
4. The decision-making body’s decision shall clearly state the factors
considered in making the recommendation and the basis or rationale for
the decision.
5. Unless deferred or subject to a continuance, the decision-making body
shall take action as promptly as reasonably possible in consideration of the
applicant, affected parties, and citizens of the County.
6. Any conditions of approval shall be expressly set forth in the approval, shall
relate in both type and scope to the anticipated impacts of the proposed
development, and shall be mutually agreed to in writing by both the
applicant and the decision-making body. [05-03-2021]
7. Any approval subject to conditions shall not take effect until the Planning
Director has received the applicant’s written consent to all conditions of
approval. [05-03-2021]
B. Revision of Application
Prior to the decision-making body’s action on an application, the decision-making
body may continue the public hearing on the application to allow the applicant to
make minor modifications to the application that directly respond to specific requests
or suggestions made by staff, the advisory body, as applicable, or the decision-
making body.
10.2.10. POST-DECISION LIMITATIONS AND ACTIONS
A. Notification to Applicant
Within a reasonable time after a final decision on an application, the Planning
Director shall provide the applicant written notice of the decision or action and shall
make a copy of the decision available to the public in the offices of the Planning
Department during normal business hours. If the application is denied, the written
notice of the decision or action shall state the reason(s) for the denial.
B. Effect of Approval
1. Approval of an application in accordance with this Ordinance authorizes
only the particular use, plan, or other specific development or activity
approved, and not any other development or activity requiring separate
approval.
2. In the event one development approval or permit is a prerequisite to
another development approval or permit (e.g., variance approval prior to
site plan approval), development may not take place until all required
10-2 New Hanover County, NC | Unified Development Ordinance
development approvals and permits are obtained. Approval of one
application does not necessarily guarantee approval of any subsequent
application.
C. Amendment of Approval
Unless otherwise provided in the specific procedure description in Section 10.3,
Application-Specific Procedures, an amendment of a permit or approval may only be
reviewed in accordance with the procedures and standards established for its
original approval.
D. Expiration of Approval
[05-03-2021]
1. Approval of an application shall be valid as authorized for the approved
development activity until the end of the expiration time period provided in
Section 10.3, Application-Specific Procedures, for the particular type of
application unless work authorized by the approval or permit has
substantially commenced, subject to subsection 4 below.
2. If no expiration period is provided in Section 10.3, Application-Specific
Procedures, for a specific type of approval or permit, the approval or permit
shall expire if a building permit or zoning compliance approval authorizing
the approved development is not obtained within two years unless work
authorized by the approval or permit has substantially commenced.
3. A change in ownership of the land shall not affect the established expiration
time period of an approval.
4. Failure to comply with the terms of an approval or permit, including any
conditions of approval, shall constitute a violation of this Ordinance (see
Article 12: Violations and Enforcement) and shall render the approval or
permit void and of no effect. No building permits for further construction or
certificates of occupancy under the approval or permit shall be permitted,
and all completed structures shall be regarded as nonconforming uses
subject to Article 11: Nonconforming Situations.
E. Termination of Site-Specific Development Plans
1. Any site-specific development plan approved by the County pursuant to
this Ordinance shall terminate at the end of the applicable vesting period
with respect to buildings and uses for which no valid building permit
applications have been filed, unless work authorized by the approval or
permit has substantially commenced. [05-03-2021]
2. Site specific development plans may terminate with the written consent of
the affected landowner.
3. A site-specific development plan may be terminated following
recommendations by the Planning Board and upon findings by the Board
of County Commissioners, by ordinance after notice and public hearing,
that natural or manmade hazards on or in the immediate vicinity of the
property, if uncorrected would pose a serious threat to the public health,
safety, and welfare if the project were to proceed as contemplated in the
site-specific development plan.
Unified Development Ordinance | New Hanover County, NC 10-3
4. A site-specific development plan may be terminated following
recommendations by the Planning Board and upon findings by the Board
of County Commissions, by ordinance after notice and public hearing, that
the landowner or his representative intentionally supplied inaccurate
information or made material misrepresentations which made a difference
in the approval by the approval authority of the site-specific development
plan.
5. A site-specific development plan may be terminated upon the enactment
or promulgation of a State or Federal law or regulation that precludes
development as contemplated in the site-specific development plan, in
which case the approval authority may modify the affected provisions, upon
a finding that the change in State or Federal law has a fundamental effect
on the plan, by ordinance after notice and a hearing.
6. A site-specific development plan may be terminated upon payment to the
affected landowner of compensation of all costs, expenses, and other
losses incurred by the landowner, but not limited to all fees paid in
consideration of financing, and all architectural, planning, marketing, legal,
and other consultant’s fees incurred after approval by the County, together
with interest thereon at the legal rate until paid. Compensation shall not
include any diminution in the value of the property which is caused by such
action.
F. Limitation on Subsequent Similar Applications
If an application requiring a public hearing is denied, no application proposing the
same or similar development on all or part of the same land shall be submitted within
one year after the date of the denial unless the Planning Director determines that:
1. There has been a substantial change in the circumstances relevant to the
issues or facts considered during review of the prior application that might
reasonably affect the action of the decision-making body;
2. New or additional information is available that was not available at the time
of review of the prior application that might reasonably affect the action of
the decision-making body;
3. The new application proposed to be submitted is materially different from
the prior application; or
4. The final decision on the prior application was based on material mistake
of fact.
Section 10.3. Application-Specific Procedures
10.3.1. TEXT AMENDMENT
A. Applicability
The procedure in this section is required for any amendment of the text of this
Ordinance, unless the amendment is part of a conditional zoning (see Section
10.3.3), or a planned development (see Section 10.3.4).
10-4 New Hanover County, NC | Unified Development Ordinance
B. Text Amendment Procedure
Figure 10.3.1.B summarizes the requirements and procedures in Section 10.2,
Standard Review Procedures, that apply to text amendments. Subsections 1 through
6 below, specify the required procedure for a text amendment, including applicable
additions or modifications to the standard review procedures.
Figure 10.3.1.B: Summary of Text Amendment Procedure
Public Hearing Procedures
(Optional)
Pre-Application
Conference
Community
Information
Meeting
1
Application
Submittal &
Acceptance
2
Planning
Director Review
& Staff Report
3
Public Hearing
Scheduling &
Notification
4
Planning Board
Hearing &
Recom-
mendation
5
Board of
Commissioners
Hearing &
Decision
6
Post-Decision
Limitations and
Actions
1. Application Submittal and Acceptance
Applications shall be submitted in accordance with Section 10.2.4,
Application Submittal and Acceptance.
2. Staff Review and Action
The Planning Director shall review the application, prepare a staff report,
and provide a recommendation in accordance with Section 10.2.5, Staff
Review and Action.
3. Public Hearing Scheduling and Public Notification
The Planning Director shall schedule public hearings and provide public
notification in accordance with Section 10.2.6, Public Hearing and
Preliminary Forum Scheduling and Public Notification.
4. Advisory Body Review and Action
a. The Planning Board shall conduct a public hearing on the application
and make a recommendation on the application in accordance with
Section 10.2.8, Advisory Body Review and Action, and Section
10.3.1.C, Text Amendment Review Standards. The Planning Board’s
recommendation shall address whether the proposed amendment is
consistent with the Comprehensive Plan.
b. If the Planning Board’s decision is to recommend denial of the
application, the applicant must submit written notice to the Planning
Director of the applicant’s intent to proceed with a hearing before the
Board of Commissioners within 10 calendar days of the Planning
Board’s decision. If the applicant does not provide such notice within
that time period, the application shall be deemed withdrawn and no
further review of the application shall occur.
Unified Development Ordinance | New Hanover County, NC 10-5
5. Board of Commissioners Review and Action
a. The Board of Commissioners shall conduct a public hearing on the
application and make a decision on the application in accordance with
Section 10.2.9, Decision-making Body Review and Action, and Section
10.3.1.C, Text Amendment Review Standards. The decision of the
Board of Commissioners shall be one of the following:
i. Adopt the text amendment as proposed;
ii. Adopt a revised text amendment;
iii. Deny the text amendment; or
iv. Remand the text amendment application to the Planning Board
for further consideration.
b. Prior to deciding to adopt or deny a text amendment, the Board of
Commissioners shall adopt a statement that:
1. Addresses the consistency of the amendment with the
Comprehensive Plan by either:
i. Describing the consistency or inconsistency of the amendment
with Comprehensive Plan; or
ii. If the amendment is approved, declaring that the approval is
also deemed an amendment to the Comprehensive Plan, and
providing an explanation of the change in conditions Board of
Commissioners took into account in approving the amendment
to meet the development needs of the community. No
additional request or application for amendment to the
Comprehensive Plan shall be required.
2. Explains why the decision is reasonable and in the public interest.
6. Post-Decision Limitations and Actions
a. The post-decision limitations and actions in Section 10.2.10, Post-
decision Limitations and Actions apply.
b. Approval of a text amendment authorizes the approved revisions to the
text of this Ordinance. Such approval does not itself authorize specific
development activity.
c. A text amendment shall not expire and shall remain valid unless and
until the revised text of this Ordinance is subsequently amended in
accordance with this section.
C. Text Amendment Review Standards
The advisability of amending the text of this Ordinance is a matter committed to the
legislative discretion of the Board of Commissioners and is not controlled by any one
factor. In determining whether to adopt or deny a proposed text amendment, the
Board of Commissioners may consider many factors, including but not limited to, the
proposed text amendment’s consistency with the Comprehensive Plan and whether
it is reasonable and in the public interest.
10-6 New Hanover County, NC | Unified Development Ordinance
10.3.2. ZONING MAP AMENDMENT
A. Applicability
The procedure in this section is required for any amendment of the Official Zoning
Map, unless the amendment is part of a conditional zoning (see Section 10.3.3), or a
planned development (see Section 10.3.4). [05-03-2021]
B. Zoning Map Amendment Procedure
Figure 10.3.2.B summarizes the requirements and procedures in Section 10.2,
Standard Review Procedures, that apply to Zoning Map amendments. Subsections
1 through 6 below, specify the required procedure for a Zoning Map amendment,
including applicable additions or modifications to the standard review procedures.
Figure 10.3.2.B: Summary of Zoning Map Amendment Procedure
Public Hearing Procedures
(Optional)
Pre-Application
Conference
(Optional)
Community
Information
Meeting
1
Application
Submittal &
Acceptance
2
Planning
Director Review
& Staff Report
3
Public Hearing
Scheduling &
Notification
4
Planning Board
Hearing &
Recom-
mendation
5
Board of
Commissioners
Hearing &
Decision
6
Post-Decision
Limitations and
Actions
1. Application Submittal and Acceptance
Applications shall be submitted in accordance with Section 10.2.4,
Application Submittal and Acceptance.
2. Staff Review and Action
The Planning Director shall review the application, prepare a staff report,
and provide a recommendation in accordance with Section 10.2.5, Staff
Review and Action.
3. Public Hearing Scheduling and Public Notification
The Planning Director shall schedule public hearings and provide public
notification in accordance with Section 10.2.6, Public Hearing and
Preliminary Forum Scheduling and Public Notification.
4. Planning Board Review and Action
a. The Planning Board shall conduct a public hearing on the application
and make a recommendation on the application in accordance with
Section 10.2.8, Advisory Body Review and Action, and Section
10.3.2.C, Zoning Map Amendment Review Standards. The Planning
Board’s recommendation shall address whether the proposed
amendment is consistent with the Comprehensive Plan.
b. If the Planning Board’s decision is to recommend denial of the
application, the applicant must submit written notice to the Planning
Director of the applicant’s intent to proceed with a hearing before the
Unified Development Ordinance | New Hanover County, NC 10-7
Board of Commissioners within 10 calendar days of the Planning
Board’s decision. If the applicant does not provide such notice within
that time period, the application shall be deemed withdrawn and no
further review of the application shall occur.
5. Board of Commissioners Review and Action
a. If appropriate, the Board of Commissioners shall conduct a public
hearing on the application and make a decision in accordance with
Section 10.2.9, Decision-making Body Review and Action, and Section
10.3.2.C, Zoning Map Amendment Review Standards. The decision of
the Board of Commissioners shall be one of the following:
i. Approve the Zoning Map amendment as proposed;
ii. Approve the Zoning Map amendment with a reduction in the
area proposed to be rezoned, or to a more restrictive district,
with the applicant’s consent;
iii. Deny the Zoning Map amendment; or
iv. Remand the Zoning Map amendment application back to the
Planning Board for further consideration.
b. Prior to deciding to adopt or deny a Zoning Map amendment, the Board
of Commissioners shall adopt a statement that:
1. Addresses the consistency of the amendment with the
Comprehensive Plan by either:
i. Describing the consistency or inconsistency of the amendment
with the Comprehensive Plan; or
ii. If the amendment is approved, declaring that the approval is
also deemed an amendment to the Comprehensive Plan, and
providing an explanation of the change in conditions Board of
Commissioners took into account in approving the amendment
to meet the development needs of the community. No
additional request or application for amendment to the
Comprehensive Plan shall be required.
2. Explains why the decision is reasonable and in the public interest.
This explanation may consider, among other factors,
i. The size, physical conditions, and other attributes of the area
proposed to be rezoned;
ii. The benefits and detriments to the landowners, the neighbors,
and the surrounding community;
iii. 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;
iv. Why the action taken is in the public interest; and
v. Any changed conditions warranting the amendment.
10-8 New Hanover County, NC | Unified Development Ordinance
c. Conditions of approval are not allowed.
6. Post-Decision Limitations and Actions
a. The post-decision limitations and actions in Section 10.2.10, Post-
decision Limitations and Actions apply.
b. Approval of a Zoning Map amendment reclassifies the land that is
subject of the application to the approved zoning district
classification(s) and subjects it to the development regulations
applicable to the district(s). Such approval does not itself authorize
specific development activity.
c. A Zoning Map amendment shall not expire and shall remain valid
unless and until the land that was subject of the amendment is
subsequently reclassified to a different zoning district in accordance
with this section, Section 10.3.3, Conditional Zoning, or Section 10.3.4,
Master Planned Development.
C. Zoning Map Amendment Review Standards
The advisability of amending the Official Zoning Map is a matter committed to the
legislative discretion of the Board of Commissioners and is not controlled by any one
factor. In determining whether to adopt or deny a proposed Zoning Map amendment,
the Board of Commissioners may consider many factors, including but not limited to,
the proposed Zoning Map amendment’s consistency with the Comprehensive Plan
and whether it is reasonable and in the public interest.
10.3.3. CONDITIONAL ZONING
A. Purpose
The purpose of this section is to provide a uniform means for amending the Official
Zoning Map to establish a Conditional Zoning (CZ) district. In cases where the
standards of a general use zoning district are inadequate to ensure that development
allowed by the district will conform to the County’s adopted plans or to appropriately
address the impacts expected to be generated by development, an applicant may
apply for a conditional zoning. Conditional zoning establishes a parallel CZ district
that is equivalent to a corresponding general use zoning district, but is subject to
additional conditions or restrictions that the applicant and County mutually agree are
necessary to ensure conformance to adopted plans and adequately address
expected development impacts.
B. Applicability
The procedure in this section is required for land to be classified to the Conditional
Zoning (CZ) District (see Section 3.5.5).
C. Conditional Zoning Procedure
Figure 10.3.3.C summarizes the requirements and procedures in Section 10.2,
Standard Review Procedures, that apply to conditional zonings. Subsections 1
through 7 below, specify the required procedure for a conditional zoning, including
applicable additions or modifications to the standard review procedures.
Unified Development Ordinance | New Hanover County, NC 10-9
Figure 10.3.3.C: Summary of Conditional Zoning Procedure
Public Hearing Procedures
(Optional)
Pre-Application Conference
1
Community
Information
Meeting
2
Application
Submittal &
Acceptance
3
Planning
Director Review
& Staff Report
(TRC Optional)
4
Public Hearing
Scheduling &
Notification
5
Planning Board
Hearing &
Recom-
mendation
6
Board of
Commissioners
Hearing &
Decision
7
Post-Decision
Limitations and
Actions
1. Community Information Meeting
The applicant shall conduct a community information meeting in
accordance with Section 10.2.3, Community Information Meeting.
2. Application Submittal and Acceptance
Applications shall be submitted in accordance with Section 10.2.4,
Application Submittal and Acceptance. The application shall include the
following, together will all other information required by the Administrative
Manual:
a. A conceptual development plan depicting the proposed development
configuration that conforms to the application requirements for
conditional zonings in the Administrative Manual; and
b. Any other conditions of approval proposed by the applicant.
3. Staff Review and Action
a. If requested by the applicant, the TRC shall review the application and
provide any comments on the proposed conditional zoning to the
Planning Director, who shall transmit any comments received from the
TRC in writing to the applicant.
b. The Planning Director shall review the application, prepare a staff
report, and provide a recommendation in accordance with Section
10.2.5, Staff Review and Action.
4. Public Hearing Scheduling and Public Notification
The Planning Director shall schedule public hearings and provide public
notification in accordance with Section 10.2.6, Public Hearing and
Preliminary Forum Scheduling and Public Notification. After the public
notice of scheduled hearing before the Planning Board is delivered to the
newspapers, the conditions of approval proposed by the applicant shall not
be amended so they are less restrictive, including but not limited to less
setback, more dwelling units, greater height, more access points, new
uses, or fewer improvements.
5. Planning Board Review and Action
a. The Planning Board shall conduct a public hearing on the application in
accordance with Section 10.2.8, Advisory Body Review and Action.
10-10 New Hanover County, NC | Unified Development Ordinance
Planning Board members may propose additional conditions and
requirements beyond those proposed by the applicant.
b. After the public hearing on the application is concluded, the Planning
Board shall make a recommendation on the application in accordance
with Section 10.2.8, Advisory Body Review and Action, and Section
10.3.3.D, Conditional Zoning Review Standards. The Planning Board’s
recommendation shall address whether the proposed conditional
zoning is consistent with the Comprehensive Plan.
c. If the Planning Board’s decision is to recommend denial of the
application, the applicant must submit written notice to the Planning
Director of the applicant’s intent to proceed with a hearing before the
Board of Commissioners within 10 calendar days of the Planning
Board’s decision. If the applicant does not provide such notice within
that time period, the application shall deemed withdrawn and no further
review of the application shall occur.
6. Board of Commissioners Review and Action
a. The Board of Commissioners shall conduct a public hearing on the
application in accordance with Section 10.2.9, Decision-making Body
Review and Action. One or more Commissioners may propose
additional conditions or requirements beyond those proposed by the
applicant.
b. After the public hearing on the application is concluded, the Board of
Commissioners shall make a decision on the application in accordance
with Section 10.2.9, Decision-making Body Review and Action, and
Section 10.3.3.D, Conditional Zoning Review Standards. The decision
of the Board of Commissioners shall be one of the following:
i. Approve the application as submitted, subject to conditions of
approval, including a conceptual development plan;
ii. Approve the application, subject to revised conditions of
approval, including a conceptual development plan;
iii. Remand the application to the Planning Board for further
consideration; or
iv. Deny the application.
c. Prior to deciding to approve or deny a conditional zoning, the Board of
Commissioners shall adopt a statement that:
1. Addresses the consistency of the conditional zoning with the
Comprehensive Plan by either:
i. Describing the consistency or inconsistency of the conditional
zoning with the Comprehensive Plan; or
ii. If the conditional zoning is approved, declaring that the
approval is also deemed an amendment to the Comprehensive
Plan, and providing an explanation of the change in conditions
Board of Commissioners took into account in approving the
conditional zoning to meet the development needs of the
Unified Development Ordinance | New Hanover County, NC 10-11
community. No additional request or application for
amendment to the Comprehensive Plan shall be required.
2. Explains why the decision is reasonable and in the public interest.
d. Conditions of approval shall comply with the following requirements:
1. Only conditions of approval mutually agreed to in writing by both the
applicant and the Board of Commissioners are allowed. [05-03-2021]
2. Conditions of approval shall be limited to those that address the
conformance of the development and use of the site to the County
Code and to the Comprehensive Plan or other adopted County
plans, and those that address the impacts reasonably expected to
be generated by the development or use of the site.
3. Conditions that are less restrictive than the standards of the
corresponding general use zoning district, applicable overlay
district(s), or other standards of this Ordinance are prohibited.
7. Post-Decision Limitations and Actions
The post-decision limitations and actions in Section 10.2.10, Post-decision
Limitations and Actions, apply, in addition to subsections a through c below.
a. Effect of Approval
Lands rezoned to a CZ district shall be subject to the standards
applicable to the parallel general use zoning district, as modified by the
more restrictive conditions approved by the applicant and imposed as
conditions of approval by the Planning Board or the Board of
Commissioners, as applicable. These standards and modifying
conditions are binding on the land as an amendment to this Ordinance
and the Zoning Map.
b. Minor Deviations
[05-03-2021, 10-03-2022]
Subsequent applications for development within a conditional zoning
district may include minor modifications from the approved conceptual
site plan, provided such modifications do not result in a change in
permitted uses or density, specified conditions of approval, or otherwise
have no material effect on the character of the approved development.
Changes in the following constitute minor modifications that may be
approved by the Planning Director:
1. Modifications in building or structure placement, provided the
placement complies with the setbacks of the corresponding base
zoning, and does not decrease the setbacks agreed to by more than
10 percent from what was originally approved;
2. Modifications in the configuration of building(s), structure(s), or site
plan;
3. Increases to the square footage of a particular use category (e.g.,
residential, commercial) not to exceed 10 percent from what was
10-12 New Hanover County, NC | Unified Development Ordinance
originally approved provided all other applicable standards of this
Ordinance are met;
4. Increases to building or structure height not to exceed 10 percent
or 10 feet from what was originally approved, whichever is less,
provided all other applicable standards of this Ordinance are met;
5. Modifications to structure floor plans;
6. Modifications to the driveway locations not exceeding 10 percent of
the length of the subject property line, or as required by the North
Carolina Department of Transportation; and
7. Modifications to the proportion of housing type not to exceed 10
percent from what was originally approved;
8. Modifications of internal circulation patterns not impacting public
safety.
c. Expiration
1. If no building permit has been issued for the subject tract within two
years after the date of approval of the conditional zoning, or if work
authorized by the approvals or permits associated with the
conditional zoning has not substantially commenced, the Planning
Director may, at the Planning Director’s discretion, schedule a
hearing for the Planning Board to consider whether active efforts
are proceeding in accordance with the approved conditional zoning.
If the Planning Board determines that such efforts are not
proceeding, the Board may, at the Board’s discretion, initiate a
Zoning Map amendment in accordance with Section 10.3.2, Zoning
Map Amendment, to rezone the land within the CZ district to its
classification prior to approval, or to another zoning district the
Board determines is appropriate. [05-03-2021]
2. A landowner may request, and the Planning Director may grant,
one, one-year extension of the two-year time period established in
subsection 1 above, if the Planning Director determines that site
conditions have not substantially changed since the approval of the
conditional zoning. The applicant must submit the request in writing
prior to the expiration of the time period.
3. If site conditions have substantially changed since the approval of
the CZ district, a landowner may request, and the Board of
Commissioners may grant, at a regularly-scheduled public hearing,
one extension, not to exceed three years, of the two-year time
period established in subsection 1 above. The applicant must
submit the request in writing prior to the expiration of the time
period.
4. If any condition of approval of the CZ district is found to be illegal
by a court of law, the approval of the CZ district shall be null and
void, and the land within the district shall be rezoned to its
classification prior to the approval of the conditional zoning in
accordance with Section 10.3.2, Zoning Map Amendment.
Unified Development Ordinance | New Hanover County, NC 10-13
5. If a violation of a condition of approval is not corrected within a
reasonable time period after notice is provided in accordance with
Article 12: Violations and Enforcement, the Planning Director may,
at the Planning Director’s discretion, submit an application to
rezone lands in the CZ district to their classification prior to approval
of the CZ district in accordance with Section 10.3.2, Zoning Map
Amendment.
D. Conditional Zoning Review Standards
Adopting a CZ district is a matter committed to the legislative discretion of the Board
of Commissioners. In determining whether to adopt or deny the proposed CZ district,
the Board of Commissioners shall consider the review standards that apply to Zoning
Map amendments in Section 10.3.2, Zoning Map Amendment.
10.3.4. MASTER PLANNED DEVELOPMENT
[09-08-2020]
A. Purpose
The purpose of this section is to provide a uniform means for amending the Official
Zoning Map to establish a master planned development district. A master planned
development (MPD) is a development under unified control with more flexible
standards and procedures that are conducive to creating a more mixed-use,
pedestrian-oriented development than could be achieved through general use
zoning district regulations.
B. Applicability
The procedure in this section is required for any amendment of the Official Zoning
Map that rezones land to a master planned development district, including the
UMXZ, RFMU, EDZD, or PD districts, or for major modifications to an already
approved master planned development district. Any modification to an approved
master planned development district that is not a minor deviation as set forth in
Section 10.3.4.C.8.b, Minor Deviations, is a major modification. [09-08-2020]
C. Master Planned Development Procedure
Figure 10.3.4.C summarizes the requirements and procedures in Section 10.2,
Standard Review Procedures, that apply to master planned developments.
Subsections 1 through 8 below, specify the required procedure for a master planned
development, including applicable additions or modifications to the standard review
procedures.
10-14 New Hanover County, NC | Unified Development Ordinance
Figure 10.3.4.C: Summary of Planned Development Procedure
Public Hearing Procedures
1
Pre-Application
Conference
2
Community
Information
Meeting
3
Application
Submittal &
Acceptance
4
Planning
Director Review
& Staff Report
(TRC Optional)
5
Public Hearing
Scheduling &
Notification
6
Planning Board
Hearing &
Recom-
mendation
7
Board of
Commissioners
Hearing &
Decision
8
Post-Decision
Limitations and
Actions
1. Pre-Application Conference
A pre-application conference in accordance with Section 10.2.2, Pre-
Application Conference, is required.
2. Community Information Meeting
The applicant shall conduct a community information meeting in
accordance with Section 10.2.3, Community Information Meeting.
3. Application Submittal and Acceptance
Applications shall be submitted in accordance with Section 10.2.4,
Application Submittal and Acceptance. In addition to all other application
requirements set forth in the Administrative Manual, the application shall
include the following:
a. An MPD Master Plan meeting the requirements of Section 3.3.3.A,
MPD Master Plan, depicting the general configuration and relationship
of the principal elements of the proposed development, including uses,
general building types, density/intensity, resource protection,
pedestrian and vehicular circulation, open space, public facilities, and
phasing;
b. An MPD Terms and Conditions document meeting the requirements of
Section 3.3.3.B, MPD Terms and Conditions Document, specifying
terms and conditions defining development parameters, providing for
environmental mitigation, and outlining how public facilities will be
provided to serve the master planned development; and
c. To ensure unified control, a copy of the title to all land that is part of the
proposed master planned development district or land that is affected
by a major modification to an existing master planned development
district.
4. Staff Review and Action
a. If requested by the applicant, the TRC shall review the application and
provide any comments on the proposed master planned development
to the Planning Director, who shall transmit any comments received
from the TRC in writing to the applicant.
b. The Planning Director shall review the application, prepare a staff
report, and provide a recommendation in accordance with Section
Unified Development Ordinance | New Hanover County, NC 10-15
10.2.5, Staff Review and Action. The Planning Director may
recommend revisions to the proposed MPD Master Plan and MPD
Terms and Conditions document.
c. If the proposed master planned development involves a rezoning to or
major modification of an EDZD District, the staff report shall address
each of the following:
1. The suitability of the proposal for the general type of function, the
physical characteristics of the land, and relation of the proposed
development to surrounding areas and existing and probable future
development;
2. The sufficiency of supporting evidence in the application showing
that the proposed location can meet the basic criteria for
exceptional design;
3. The relation to major roads and mass transit facilities, utilities, and
other facilities and services;
4. The adequacy of evidence of unified control and the suitability of
any proposed agreements, contracts, deed restrictions, sureties,
dedications, contributions, guarantees, or other instruments, or the
need for such instruments, or for amendments in those proposed;
5. The suitability of plans proposed or the suggestion of conditions;
and
6. The consistency with the Comprehensive Plan and other adopted
plans for development in the vicinity, and how the EDZD district
might be reasonable and in the public interest if approved.
5. Public Hearing Scheduling and Public Notification
The Planning Director shall schedule public hearings and provide public
notification in accordance with Section 10.2.6, Public Hearing and
Preliminary Forum Scheduling and Public Notification.
6. Planning Board Review and Action
a. The Planning Board shall conduct a public hearing on the application
and make a recommendation on the application in accordance with
Section 10.2.8, Advisory Body Review and Action, and Section
10.3.4.D, Master Planned Development Review Standards. The
Planning Board’s recommendation shall address whether the proposed
master planned development is consistent with the Comprehensive
Plan.
b. If the Planning Board’s decision is to recommend denial of the
application, the applicant must submit written notice to the Planning
Director of the applicant’s intent to proceed with a hearing before the
Board of Commissioners within 10 calendar days of the Planning
Board’s decision. If the applicant does not provide such notice within
that time period, the application shall be deemed withdrawn and no
further review of the application shall occur.
10-16 New Hanover County, NC | Unified Development Ordinance
7. Board of Commissioners Review and Action
a. If appropriate, the Board of Commissioners shall conduct a public
hearing on the application and make a decision on the application in
accordance with Section 10.2.9, Decision-making Body Review and
Action, and Section 10.3.4.D, Master Planned Development Review
Standards. The decision of the Board of Commissioners shall be one
of the following:
1. Approve the master planned development district subject to the
MPD Master Plan and MPD Terms and Conditions document in the
application;
2. Approve the master planned development district subject to
additional or revised conditions related to the MPD Master Plan or
MPD Terms and Conditions document;
3. Deny the master planned development district; or
4. Remand the master planned development application back to the
Planning Board for further consideration.
b. Prior to deciding to adopt or deny a master planned development, the
Board of Commissioners shall adopt a statement that:
1. Addresses the consistency of the master planned development with
the Comprehensive Plan by either:
i. Describing the consistency or inconsistency of the master
planned development with the Comprehensive Plan; or
ii. If the master planned development is approved, declaring that
the approval is also deemed an amendment to the
Comprehensive Plan, and providing an explanation of the
change in conditions Board of Commissioners took into
account in approving the master planned development to meet
the development needs of the community. No additional
request or application for amendment to the Comprehensive
Plan shall be required.
2. Explains why the decision is reasonable and in the public interest.
c. Only conditions of approval mutually agreed to in writing by both the
applicant and the Board of Commissioners are allowed. [05-03-2021]
8. Post-Decision Limitations and Actions
The post-decision limitations and actions in Section 10.2.10 apply, in
addition to the provisions in subsections a through c below.
a. Effect of Approval
1. Lands classified to master planned development district shall be
subject to the approved MPD Master Plan and MPD Terms and
Conditions document. Such approval does not itself authorize
specific development activity, but allows the property owner to
obtain subsequent development approvals and permits necessary
to implement the MPD Master Plan and MPD Terms and Conditions
Unified Development Ordinance | New Hanover County, NC 10-17
document, in accordance with the applicable procedures and
standards set forth in this Ordinance. Subsequent development
approvals and permits shall comply with the MPD Master Plan and
MPD Terms and Conditions document.
2. Approval of an MPD Master Plan shall establish a vested right in
accordance with N.C.G.S. § 160D-108.1. [05-03-2021]
b. Minor Deviations
[05-03-2021, 10-03-2022]
Subsequent applications for development within a master planned
development district may include minor modifications from the
approved MPD Master Plan and MPD Terms and Conditions
document, provided such modifications do not result in a change in
permitted uses or density, specified conditions of approval, or otherwise
have no material effect on the character of the approved development.
Changes in the following constitute minor modifications that may be
approved by the Planning Director:
1. Modifications in building or structure placement, provided the
placement does not decrease approved setbacks by more than 10
percent from what was originally approved;
2. Modifications in the configuration of the building(s), structure(s), or
site plan;
3. Increases to the square footage of a particular use category (e.g.,
residential, commercial) not to exceed 10 percent from what was
originally approved provided all other applicable standards of this
Ordinance are met;
4. Increases to building or structure height not to exceed 10 percent
or 10 feet from what was originally approved, whichever is less,
provided all other applicable standards of this Ordinance are met;
5. Modifications to structure floor plans;
6. Modifications to the driveway locations not exceeding 10 percent of
the length of the subject property line, or as required by the North
Carolina Department of Transportation; and
7. Modifications to the proportion of housing type not to exceed 10
percent from what was originally approved; and
8. Modifications of internal circulation patterns not impacting public
safety.
c. Expiration
1. If no building permit has been issued for the land approved as a
master planned development district within two years of the date of
approval, or if work authorized by the approvals or permits
associated with the master planned development has not
substantially commenced, the Planning Director may, at the
Planning Director’s discretion, schedule a hearing for the Planning
Board to consider whether active efforts are proceeding in
10-18 New Hanover County, NC | Unified Development Ordinance
accordance with the approved master planned development. If the
Planning Board determines that such efforts are not proceeding, the
Board may, at the Board’s discretion, initiate a Zoning Map
amendment in accordance with Section 10.3.2, Zoning Map
Amendment, to rezone the master planned development district to
its classification prior to approval, or to another zoning district the
Board determines is appropriate. [05-03-2021]
2. A landowner may request, and the Planning Director may grant,
one, one-year extension of the two-year time period established in
subsection 1 above if the Planning Director determines that site
conditions have not substantially changed since the approval of the
master planned development district. The applicant must submit the
request in writing prior to the expiration of the time period.
3. If site conditions have substantially changed since the approval of
the master planned development district, a landowner may request
and the Board of Commissioners may grant, at a regularly-
scheduled public meeting, one extension not to exceed three years,
of the two-year time period established in subsection 1 above. The
applicant must submit the request in writing prior to the expiration
of the time period.
D. Master Planned Development Review Standards
The advisability of establishing a master planned development district is a matter
committed to the legislative discretion of the Board of Commissioners. In
determining whether to approve a proposed master planned development district,
the Board of Commissioners shall consider the review standards for Zoning Map
amendments in Section 10.3.2.C, Zoning Map Amendment Review Standards. The
Board of Commissioners shall not approve a master planned development district
unless it complies with the requirements in Section 3.3.3, General Requirements for
Mixed Use Zoning Districts, and the standards that apply to the specific master
planned development district set forth in Section 3.3, Mixed Use Zoning Districts.
10.3.5. SPECIAL USE PERMIT
A. Purpose
A use designated as a special use in Table 4.2.1: Principal Use Table, in a particular
zoning district, is a use that may be appropriate in the district, but because of its
nature, extent, and external impacts, requires special consideration of its location,
design, and methods of operation before it can be deemed appropriate in the district
and compatible with its surroundings. The purpose of this section is to establish a
uniform mechanism for the review of special uses to ensure they are appropriate for
the location and zoning district where they are proposed.
B. Applicability
Approval of a special use permit in accordance with this this section is required
before development of any use identified as a special use in Table 4.2.1: Principal
Use Table.
Unified Development Ordinance | New Hanover County, NC 10-19
C. Special Use Permit Procedure
Figure 10.3.5.C summarizes the requirements and procedures in Section 10.2,
Standard Review Procedures, that apply to special use permits. Subsections 1
through 7 below, specify the required procedure for a special use permit, including
applicable additions or modifications to the standard review procedures.
Figure 10.3.5.C: Summary of Special Use Permit Procedure
Public Hearing Procedures
(Optional)
Pre-Application
Conference
1*
Community
Information
Meeting
2
Application
Submittal &
Acceptance
3
Planning
Director Review
& Staff Report
(TRC Optional)
4
Public Hearing
Scheduling &
Notification
5
Planning Board
Preliminary
Forum*
6
Board of
Commissioners
Hearing &
Decision
7
Post-Decision
Limitations and
Actions
*Special use permits for single-family dwellings, including mobile homes, shall not require a Planning Board
preliminary forum prior to the Board of Commissioners Hearing & Decision. [05-03-2021]
1. Community Information Meeting
If the proposed use is classified as intensive industry, the applicant shall
conduct a community information meeting in accordance with Section
10.2.3, Community Information Meeting. In all other cases, the applicant
may conduct a community information meeting in accordance with Section
10.2.3 at the applicant’s option.
2. Application Submittal and Acceptance
Applications shall be submitted in accordance with Section 10.2.4,
Application Submittal and Acceptance. The required completeness review
must be completed within five business days after the application submittal
date.
3. Staff Review and Action
[05-03-2021]
a. If requested by the applicant, the TRC shall review the application and
provide any comments on the proposed special use permit to the
Planning Director, who shall transmit any comments received from the
TRC in writing to the applicant.
b. In preparation for the Planning Board’s preliminary forum on the
application, the Planning Director shall review the application and
prepare a brief introduction.
c. In preparation for the Board of Commissioners’ public hearing on the
application, the Planning Director shall prepare a staff report in
accordance with Section 10.2.5, Staff Review and Action, which the
Clerk to the Board of Commissioners shall publish in the agenda
package for the Board of Commissioners meeting for which the public
hearing on the application is scheduled. The staff report shall:
10-20 New Hanover County, NC | Unified Development Ordinance
1. Summarize the special use permit request, the information and
materials provided in the application package, and preliminary
findings of fact; and
2. Address the review standards in Section 10.3.5.D, Special Use
Permit Review Standards, stating whether each standard is met or
identifying, in staff’s view, any additional information necessary for
the Board of Commissioners to be able to determine whether each
standard is met.
4. Public Hearing and Preliminary Forum Scheduling and Public
Notification
[05-03-2021]
The Planning Director shall schedule the preliminary forum and public
hearing and provide public notification for both meetings in accordance with
Section 10.2.6.
5. Planning Board Review and Action
[05-03-2021]
The Planning Board shall conduct a preliminary forum on the application
as a way to provide advisory review and recommendations to the applicant
and public on potential relevant and material evidence, findings of fact, and
issues or areas that the Board of Commissioners may need more
information on in order to reach a required conclusion. [05-03-2021]
6. Board of Commissioners Review and Action
a. The Board of Commissioners shall conduct a quasi-judicial public
hearing on the application and make a decision in accordance with
Section 10.2.9, Decision-making Body Review and Action, and Section
10.3.5.D, Special Use Permit Review Standards. The decision of the
Board of Commissioners shall be one of the following:
i. Approve the special use permit application as submitted;
ii. Approve the approve the special use permit application,
subject to conditions of approval; or
iii. Deny the planned development.
b. A motion to approve, approved with conditions, or deny the application
must include findings of fact and conclusions as to whether the
application complies with each of the required standards in Section
10.3.5.D, Special Use Permit Review Standards.
c. Subject to subsection d below, the Board of Commissioners may attach
conditions of approval, including time limits for completion of
development or for the start or end of certain uses or activities.
Conditions of approval shall meet or exceed the minimum requirements
of this Ordinance. [05-03-2021]
d. Only conditions of approval mutually agreed to in writing by both the
applicant and the Board of Commissioners are allowed. [05-03-2021]
Unified Development Ordinance | New Hanover County, NC 10-21
7. Post-Decision Limitations and Actions
The post-decision limitations and actions in Section 10.2.10, Post-decision
Limitations and Actions, apply, except the limitation on subsequent
submittal of applications proposing the same or similar development if the
initial application is denied in Section 10.2.10.F, Limitation on Subsequent
Similar Applications, is not limited to one year but applies in perpetuity.
Additionally, the provisions in subsections a through c below, apply.
a. Appeal
A decision by the Board of Commissioners on a special use permit may
be appealed to the Superior Court of New Hanover County in
accordance with state law.
b. Minor Deviations
[05-03-2021, 10-03-2022]
Subsequent applications for development pursuant to an approved
special use permit may include minor modifications from the approved
special use permit, provided such modifications do not result in a
change in permitted uses or density, specified conditions of approval,
or otherwise have no material effect on the character of the approved
development. Changes in the following constitute minor modifications
that may be approved by the Planning Director:
1. Modifications in building or structure placement, provided the
placement complies with the setbacks of the corresponding base
zoning, and does not decrease approved setbacks by more than 10
percent from what was originally approved;
2. Modifications in the configuration of the building(s), structure(s), or
site plan;
3. Increases to the square footage of a particular use category (e.g.,
residential, commercial) not to exceed 10 percent from what was
originally approved provided all other applicable standards of this
Ordinance are met;
4. Increases to building or structure height not to exceed 10 percent
or 10 feet from what was originally approved, whichever is less,
provided all other applicable standards of this Ordinance are met;
5. Modifications to structure floor plans;
6. Modifications to the driveway locations not exceeding 10 percent of
the length of the subject property line, or as required by the North
Carolina Department of Transportation; and
7. Modifications to the proportion of housing type not to exceed 10
percent from what was originally approved;
8. Modifications of internal circulation patterns not impacting public
safety.
10-22 New Hanover County, NC | Unified Development Ordinance
c. Expiration
1. A special use permit shall automatically expire and become null and
void if the proposed use or work authorized by the approvals or
permits associated with the special use permit has not substantially
commenced within two years after the date of issuance, unless the
applicant submits a written request for an extension to the Planning
Director prior to the expiration, and the request is granted in
accordance with subsection 2 or 3 below. [05-03-2021]
2. A landowner may request, and the Planning Director may grant,
one, one-year extension of the two-year time period established in
subsection 1 above, if the Planning Director determines that site
conditions have not substantially changed since the approval of the
special use permit.
3. If site conditions have substantially changed since the approval of
the special use permit, a landowner may request, and the Board of
Commissioners may grant, at a regularly-scheduled public meeting,
one extension of the two-year time period established in subsection
1 above, of up to three years.
4. The total vesting period for extensions granted in accordance with
subsections 2 and 3 above shall not exceed five years.
D. Special Use Permit Review Standards
The Board of County Commissioners shall approve an application for a special use
permit only if it reaches each of the following conclusions based on findings of fact
supported by competent, substantial, and material evidence presented at the
hearing:
1. The use will not materially endanger the public health or safety if located
where proposed and approved;
2. The use meets all required conditions and specifications of this Ordinance;
3. The use will not substantially injure the value of adjoining or abutting
property, or the use is a public necessity; and
4. The location and character of the use if developed according to the plan as
submitted and approved will be in harmony with the area in which it is to be
located and in general conformity with the Comprehensive Land Use Plan
for New Hanover County.
10.3.6. SITE PLAN
A. Purpose
The purpose of this section is to provide a uniform mechanism to ensure the layout,
form, and general design of proposed development complies with all applicable
standards of this Ordinance and all other applicable County and state regulations.
B. Applicability
1. Approval of a major or minor site plan in accordance with this section is
required prior to the issuance of a zoning compliance approval, building
Unified Development Ordinance | New Hanover County, NC 10-23
permit, or certificate of occupancy for any development that is not
exempted by subsection 2 below.
2. The following types of development are exempt from the requirements of
this section:
a. Internal construction that does not:
1. Increase building height;
2. Increase the density or intensity of use; or
3. Require changes to parking or landscaping in accordance with
Section 5.1, Parking and Loading, and Section 5.4, Landscaping
and Buffering; and
b. Any change in use that does not result in additional parking or
landscaping in accordance with Section 5.1, Parking and Loading, and
Section 5.4, Landscaping and Buffering.
C. Major and Minor Site Plans Distinguished
There are two types of site plan review under this Ordinance: major site plan review
and minor site plan review.
1. Major Site Plans
Major site plans are reviewed by the TRC in accordance with Section
10.3.6.D, Major Site Plan Procedure. Major site plan review is required for
development that requires site plan review in accordance with Section
10.3.6.B, Applicability, and that
a. Increases impervious surface by more than 10,000 square feet; or
b. Includes more than 5,000 square feet of building gross floor area.
2. Minor Site Plans
Minor site plans are reviewed by the Planning Director in accordance with
Section 10.3.6.E, Minor Site Plan Procedure. Minor site plan review is
required for development that requires site plan review in accordance with
Section 10.3.6.B, Applicability, and that does not require major site plan
review in accordance with subsection 1 above.
D. Major Site Plan Procedure
Figure 10.3.6.D summarizes the requirements and procedures in Section 10.2,
Standard Review Procedures, that apply to a major site plan. Subsections 1 through
3 below, specify the required procedure for a major site plan, including applicable
additions or modifications to the standard review procedures.
10-24 New Hanover County, NC | Unified Development Ordinance
Figure 10.3.6.D: Summary of Major Site Plan Procedure
(Optional)
Pre-Application
Conference
(Optional)
Community
Information
Meeting
1
Application
Submittal &
Acceptance
2
TRC Review &
Decision
Public Hearing Scheduling & Notification
Advisory Body Review & Action
Decision-Making Body Review & Action
3
Post-Decision
Limitations and
Actions
1. Application Submittal and Acceptance
Applications shall be submitted in accordance with Section 10.2.4,
Application Submittal and Acceptance.
2. Staff Review and Action
The TRC shall review the application and make a decision, in accordance
with Section 10.2.5, Staff Review and Action, and Section 10.3.6.F, Site
Plan Review Standards. The TRC’s decision shall be one of the following:
a. Approve the application as submitted;
b. Approve the application, subject to conditions of approval; or
c. Deny the application.
3. Post-Decision Limitations and Actions
The post-decision limitations and actions in Section 10.2.10, Post-decision
Limitations and Actions, apply.
E. Minor Site Plan Procedure
Figure 10.3.6.E summarizes the requirements and procedures in Section 10.2,
Standard Review Procedures, that apply to minor site plans. Subsections 1 through
3 below, specify the required procedure for a minor site plan, including applicable
additions or modifications to the standard review procedures.
Figure 10.3.6.E: Summary of Minor Site Plan Procedure
(Optional)
Pre-Application
Conference
(Optional)
Community
Information
Meeting
1
Application
Submittal &
Acceptance
2
Planning
Director Review
& Decision (TRC Optional)
Public Hearing
Scheduling &
Notification
Advisory Body
Review & Action
Decision-
Making Body
Review & Action
3
Post-Decision
Limitations and
Actions
1. Application Submittal and Acceptance
Applications shall be submitted in accordance with Section 10.2.4,
Application Submittal and Acceptance.
Unified Development Ordinance | New Hanover County, NC 10-25
2. Staff Review and Action
a. If requested by the applicant, the TRC shall review the application and
provide any comments on the minor site plan application to the
Planning Director, who shall transmit any comments received from the
TRC in writing to the applicant.
b. Following review by the TRC, as applicable, the Planning Director shall
review the application and make a decision in accordance with Section
10.2.5, Staff Review and Action, and Section 10.3.6.F, Site Plan
Review Standards. The Planning Director’s decision shall be one of the
following:
1. Approve the application as submitted;
2. Approve the application, subject to conditions of approval; or
3. Deny the application.
3. Post-Decision Limitations and Actions
The post-decision limitations and actions in Section 10.2.10, Post-decision
Limitations and Actions, apply.
F. Site Plan Review Standards
The TRC or the Planning Director, as appropriate, shall approve a site plan
application only on finding that the applicant demonstrates there is competent,
substantial, and material evidence in the record that all of the following standards
are met:
1. The proposed development and uses in the site plan comply with Article 3:
Zoning Districts, and Article 4: Uses and Use-Specific Standards;
2. The development proposed in the site plan and its general layout and
design comply with all the standards in Article 5: General Development
Standards, and Article 6: Subdivision Design and Improvement;
3. The development proposed in the site plan complies with all conditions of
approval in any development approval or permit to which the plan is
subject; and
4. The development proposed in the site plan complies with all other
applicable standards in this Ordinance and all other County regulations.
10.3.7. SUBDIVISION
A. Purpose
The purpose of this section is to provide a uniform mechanism for the approval of
divisions of land and to ensure that plats (subdivisions) promote the health, safety,
convenience, order, prosperity, and welfare of the present and future inhabitants of
the County by:
1. Providing for the orderly growth and development of the County;
2. Coordinating streets and roads within proposed plat with the County’s
street system and transportation plans, and with other public facilities;
10-26 New Hanover County, NC | Unified Development Ordinance
3. Providing rights-of-way for streets and utility easements;
4. Avoiding congestion and overcrowding, and encouraging the proper
arrangement of streets in relation to existing or planned streets;
5. Ensuring there is adequate open space and recreation facilities to serve
development; and
6. Ensuring there is proper recordation of land ownership or property owner
association records, where applicable.
B. Applicability
1. Subdivision review and approval in accordance with the procedures and
standards in this section are required for any division of land within the
subdivision jurisdiction of the County, unless exempted in accordance with
subsection 2 below.
2. The following are excluded from the definition of subdivision under this
Ordinance and are not subject to the requirements of this section:
a. The combination or recombination of portions of previously subdivided
and recorded lots where the total number of lots is not increased and
the resultant lots are equal to or exceed the standards in Article 6:
Subdivision Design and Improvement;
b. The division of land into parcels greater than ten acres where no street
right-of-way dedication is involved;
c. The public acquisition by purchase, of strips of land for the widening or
opening of streets or for public transportation system corridors;
d. The division of a tract in single ownership whose entire area is no
greater than two acres into not more than three lots, where no street
right-of-way dedication is involved and where the resultant lots are
equal to or exceed the standards of the County as shown in Article 6:
Subdivision Design and Improvement; and
e. The division of a tract into parcels in accordance with the terms of a
probated will or in accordance with intestate succession under Chapter
29 of the General Statutes.
3. The provisions of this section shall not prohibit any landowner or
landowner’s agent from entering into contracts to sell or lease by reference
to an approved preliminary plan in accordance with N.C.G.S. § 160D-807.
[05-03-2021]
C. Major and Minor Subdivisions Distinguished
There are two types of subdivision review under this Ordinance: major subdivision
review and minor subdivision plat review.
1. Major Subdivision
Major subdivision review and approval in accordance with Section
10.3.7.D, Major Subdivision Procedures and Standards, is required for all
subdivisions that are not reviewed as a minor subdivision plat in
accordance with subsection 2 below. Approval of a major subdivision
Unified Development Ordinance | New Hanover County, NC 10-27
requires approval of a preliminary plan, construction plans, and one or
more final plats as set forth in subsection a through c below.
a. Approval of a preliminary plan in accordance with Section 10.3.7.D.1,
Preliminary Plan Procedure, is required prior to the submittal and
review of Construction Drawings (see Section 10.3.7.D.2) and the
submittal and review of final plat applications (see Section 10.3.7.D.3).
b. Approval of construction plans in accordance with Section 10.3.7.D.2,
Construction Plans Procedure, is required prior to the installation of any
required improvements and the submittal and review of final plat
applications (see Section 10.3.7.D.3). Subject to sewer availability,
building permits may be issued after approval of construction plans. No
land-disturbing activity or tree removal may begin on any site subject to
the provisions of this Ordinance until all required development
approvals and permits are issued.
c. Approval of a final plat in accordance with Section 10.3.7.D.3, Final Plat
Procedure, is required prior to recording the plat in the Office of the
Register of Deeds. The final plat shall be recorded in the Office of the
Register of Deeds prior to the sale or lease of land or buildings within
the subdivision.
2. Minor Subdivision Plat
Minor subdivision plat review and approval in accordance with Section
10.3.7.E, Minor Subdivision Plat Procedure and Standards, is required for
any subdivision:
a. Involving not more than five lots, all of which front on an existing
approved street; and
b. Not involving any new streets or prospectively requiring any new street
for access to interior property; and
c. Not requiring drainage improvements or easements to serve the
applicant's property or interior properties.
D. Major Subdivision Procedures and Standards
1. Preliminary Plan Procedure
Figure 10.3.7.D.1 summarizes the requirements and procedures in Section
10.2, Standard Review Procedures, that apply to preliminary plans.
Subsections a through c below, specify the required procedure for a
preliminary plan, including applicable additions or modifications to the
standard review procedures.
10-28 New Hanover County, NC | Unified Development Ordinance
Figure 10.3.7.D.1: Summary of Preliminary Plan Procedure
(Optional)
Pre-Application
Conference
(Optional)
Community
Information
Meeting
1
Application
Submittal &
Acceptance
2
TRC Review &
Decision
Public Hearing Scheduling & Notification
Advisory Body Review & Action
Decision-Making Body Review & Action
3
Post-Decision
Limitations and
Actions
a. Application Submittal and Acceptance
Applications shall be submitted in accordance with Section 10.2.4,
Application Submittal and Acceptance. If the proposed subdivision will
generate more than 100 trips during the peak hour, a traffic impact
study must be submitted prior to approval of the application. The traffic
impact study shall be prepared in accordance with Standards and
Guidelines approved by the County. If a proposed major thoroughfare
runs through or is associated with the tract of land to be subdivided, a
sketch plan may be submitted for staff review prior to the submission of
an application for a preliminary plat.
b. Staff Review and Action
The TRC shall review the application, hear any comments from the
applicant or other interested persons at a meeting of the TRC, and
make a decision, in accordance with Section 10.2.5, Staff Review and
Action, and Section 10.3.7.D.4.a, Preliminary Plan Review Standards.
The TRC’s decision shall be one of the following:
1. Approve the application as submitted;
2. Approve the application, subject to conditions of approval; or
3. Require that the application be revised to address deficiencies in
complying with applicable development standards.
All subdivisions which require an erosion and sedimentation plan
and/or require a Coastal Area Management Act (CAMA) major permit
must be reviewed by the North Carolina Division of Water Quality for
compliance with the Water Supply Watershed Projection Rules (15A
NCAC 28.022) and the Coastal Storm Water Rules (15A NCAC
2H.1000).
c. Post-Decision Limitations and Actions
1. The post-decision limitations and actions in Section 10.2.10, Post-
decision Limitations and Actions, apply.
2. If the application is not approved, the applicant may submit a
revised preliminary plan in accordance with the application
requirements in the Administrative Manual. Review of the revised
preliminary plan shall be in accordance with this section
(10.3.7.D.1).
Unified Development Ordinance | New Hanover County, NC 10-29
3. If the application is approved, approval shall be noted on the plan.
One copy of the plan shall be transmitted to the applicant and
another copy shall be retained by the Planning Department.
4. Preliminary plan approval shall automatically expire and become
void if the subdivider does not submit a final plat for all or part of the
lands subject to the approved preliminary plan or if work authorized
by approvals or permits associated with the subdivision has not
substantially commenced within two years of the preliminary plan
approval date, unless an extension of time is granted in accordance
with subsection 5 below. [05-03-2021]
5. The TRC may grant up to two, one-year extensions of the time
period set forth in subsection 4 above, for good cause, if the
applicant submits a written request for an extension prior to the
expiration of the preliminary plan approval.
2. Construction Plans Procedure
Figure 10.3.7.D.2 summarizes the requirements and procedures in Section
10.2, Standard Review Procedures, that apply to construction plans.
Subsections a through c below, specify the required procedure for
construction plans, including applicable additions or modifications to the
standard review procedures.
Figure 10.3.7.D.2: Summary of Construction Plans Procedure
(Optional)
Pre-Application
Conference
(Optional)
Community
Information
Meeting
1
Application
Submittal &
Acceptance
2
TRC Review &
Decision
Public Hearing Scheduling & Notification
Advisory Body Review & Action
Decision-Making Body Review & Action
3
Post-Decision
Limitations and
Actions
a. Application Submittal and Acceptance
Applications shall be submitted in accordance with Section 10.2.2,
Application Submittal and Acceptance, except applications shall be
submitted to the County Engineer, who shall make a determination of
completeness and perform other administrative duties pertaining to the
application.
b. Staff Review and Action
1. The TRC shall review the application and make a decision in
accordance with Section 10.2.5, Staff Review and Action, and
Section 10.3.7.D.4.b, Construction Plans Review Standards. The
TRC’s decision shall be one of the following:
i. Approve the application as submitted;
ii. Approve the application, subject to conditions of approval; or
iii. Deny the application.
10-30 New Hanover County, NC | Unified Development Ordinance
2. If the application is approved, the County Engineer shall issue an
approval letter for the installation of the required improvements in
accordance with the approved plans and the design standards
specified in this Ordinance.
c. Post-Decision Limitations and Actions
1. The post-decision limitations and actions in Section 10.2.10, Post-
decision Limitations and Actions, apply.
2. The Planning Director, in conjunction with the appropriate agencies,
shall review and approve all required improvements prior to the final
plat being approved (see Section 10.3.7.D.4.c, Final Plat Review
Standards).
3. Final Plat Procedure
Figure 10.3.7.D.3 summarizes the requirements and procedures in Section
10.2, Standard Review Procedures, that apply to final plats. Subsections a
through c below, specify the required procedure for a final plat, including
applicable additions or modifications to the standard review procedures.
Figure 10.3.7.D.3: Summary of Final Plat Procedure
(Optional)
Pre-Application
Conference
(Optional)
Community
Information
Meeting
1
Application Submittal & Acceptance
2
Planning Director Review & Decision
Public Hearing
Scheduling &
Notification
Advisory Body
Review & Action
Decision-
Making Body
Review & Action
3
Post-Decision Limitations and Actions
a. Application Submittal and Acceptance
Applications shall be submitted in accordance with Section 10.2.2,
Application Submittal and Acceptance.
b. Staff Review and Action
The Planning Director shall review the application and make a decision
in accordance with Section 10.2.5, Staff Review and Action, and
Section 10.3.7.D.4.c, Final Plat Review Standards. The Planning
Director’s decision shall be one of the following:
1. Approve the application; or
2. Deny the application.
c. Post-Decision Limitations and Actions
1. The post-decision limitations and actions in Section 10.2.10, Post-
decision Limitations and Actions, apply.
2. If the application is approved, the Planning Director shall indicate in
writing on the original tracing that the plat is approved. After the
affixing of all required signatures (except Certificate of Registration
Unified Development Ordinance | New Hanover County, NC 10-31
by the Register of Deeds) the final plat shall be returned to the
applicant.
3. The applicant shall file an approved final plat with the Office of the
Register of Deeds for recording within 90 days of the date of its
approval by the Planning Director or such approval shall be void,
unless the Planning Director grants an extension of that time period
for good cause.
4. Major Subdivision Review Standards
a. Preliminary Plan Review Standards
The TRC shall approve a preliminary plan application only if a traffic
impact study is submitted in accordance with Section 10.3.7.D.1.a, and
only on finding that the proposed subdivision complies with the
applicable standards in Article 6: Subdivision Design and Improvement,
all other applicable standards of this Ordinance, and all other applicable
County and state laws and regulations.
b. Construction Plans Review Standards
The TRC shall approve construction plans on finding that the plans are
in substantial conformance with the approved preliminary plan and
comply with the applicable standards in Article 6: Subdivision Design
and Improvement, and all other applicable County and state laws and
regulations.
c. Final Plat Review Standards
The Planning Director shall approve a final plat application only on
finding the following:
1. The final plat conforms substantially to the preliminary plan as it was
approved;
2. The final plat complies with the applicable standards in Article 6:
Subdivision Design and Improvement, and with all other applicable
County and state laws and regulations, including the provisions in
N.C.G.S. Section 47-30;
3. The final plat complies with the policies of New Hanover County in
regard to mapping; and
4. All required improvements have been installed in accordance with
the requirements of this Ordinance and any other applicable County
and state regulations, or a financial guarantee is provided for any
required improvements that are not installed in accordance with
Section 6.3.2, Guarantees of Improvements.
E. Minor Subdivision Plat Procedure and Standards
1. Minor Subdivision Plat Procedure
Figure 10.3.7.E.1 summarizes the requirements and procedures in Section
10.2, Standard Review Procedures, that apply to a minor subdivision plat.
Subsections a through c below, specify the required procedure for minor
10-32 New Hanover County, NC | Unified Development Ordinance
subdivision plats, including applicable additions or modifications to the
standard review procedures.
Figure 10.3.7.E.1: Summary of Minor Subdivision Plat Procedure
(Optional)
Pre-Application
Conference
(Optional)
Community
Information
Meeting
1
Application Submittal & Acceptance
2
Planning Director Review & Decision
Public Hearing
Scheduling &
Notification
Advisory Body
Review & Action
Decision-
Making Body
Review & Action
3
Post-Decision Limitations and Actions
a. Application Submittal and Acceptance
Applications shall be submitted in accordance with Section 10.2.4,
Application Submittal and Acceptance. In addition to the other
application requirements set forth in the Administrative Manual, the
application shall include one original print of the plat, drawn in ink on
film or linen in a size suitable for recording.
b. Staff Review and Action
1. The Planning Director shall review the application and make a
decision in accordance with Section 10.2.5, Staff Review and
Action, and Section 10.3.7.E.2, Minor Subdivision Plat Standards.
The Planning Director’s decision shall be one of the following:
i. Approve the application; or
ii. Deny the application.
2. If the Planning Director approves the application, the Planning
Director shall stamp the plat as an approved minor subdivision.
3. All subdivisions which require an erosion and sedimentation plan
and/or require a Coastal Area Management Act (CAMA) major
permit must be reviewed by the North Carolina Division of Water
Quality for compliance with the Water Supply Watershed Projection
Rules (15A NCAC 28.022) and the Coastal Storm Water Rules (15A
NCAC 2H.1000).
c. Post-Decision Limitations and Actions
The post-decision limitations and actions in Section 10.2.10, Post-
decision Limitations and Actions, apply. The applicant shall file an
approved final plat with the Office of the Register of Deeds for recording
after approval.
2. Minor Subdivision Plat Standards
The Planning Director shall approve a minor subdivision plat application
only on finding that the proposed subdivision complies with the applicable
standards in Article 6: Subdivision Design and Improvement, all other
Unified Development Ordinance | New Hanover County, NC 10-33
applicable standards of this Ordinance, and all other applicable County and
state laws and regulations, including the provisions in N.C.G.S. § 47-30.
10.3.8. ZONING COMPLIANCE APPROVAL
A. Purpose
The purpose of zoning compliance approval is to provide a uniform mechanism to
ensure development complies with the requirements of this Ordinance, either in
conjunction with a building permit application or as a separate application if no
building permit is required.
B. Applicability
A zoning compliance approval is required for the following activities:
1. Establishment of a new use other than bona fide farms;
2. Erection, alteration, moving, or repair of any building or structure; and
3. Occupying or permitting the use or occupancy of any building or premises,
or part thereof, created, erected, changed, converted, or wholly or partly
altered or enlarged in its use or structure. [05-03-2021]
C. Zoning Compliance Approval Procedure
Figure 10.3.8.C summarizes the requirements and procedures in Section 10.2,
Standard Review Procedures, that apply to zoning compliance approvals.
Subsections 1 through 3 below, specify the required procedure for a zoning
compliance approval, including applicable additions or modifications to the standard
review procedures.
Figure 10.3.8.C: Summary of Zoning Compliance Approval Procedure
(Optional)
Pre-Application Conference
(Optional)
Community Information
Meeting
1
Application
Submittal &
Acceptance
2
Planning
Director Review
& Decision
Public Hearing
Scheduling &
Notification
Advisory Body
Review & Action
Decision-
Making Body
Review & Action
3
Post-Decision
Limitations and
Actions
1. Application Submittal and Acceptance
Applications shall be submitted in accordance with Section 10.2.4,
Application Submittal and Acceptance.
2. Staff Review and Action
The Planning Director shall review the application and make a decision in
accordance with Section 10.2.5, Staff Review and Action, and Section
10.3.8.D, Zoning Compliance Approval Review Standards. The Planning
Director’s decision shall be one of the following:
a. Approve the application as submitted;
b. Approve the application, subject to conditions of approval; or
10-34 New Hanover County, NC | Unified Development Ordinance
c. Require the application be revised to address deficiencies in complying
with applicable development standards .
3. Post-Decision Limitations and Actions
a. The post-decision limitations and actions in Section 10.2.10, Post-
decision Limitations and Actions, apply.
b. Zoning compliance approval issued on the basis of plans and
applications approved by the Planning Director authorizes only the use,
arrangements, and construction set forth in such approved plans and
applications. Subsequent use, arrangements, or construction that do
not comply with the zoning compliance approval shall be deemed a
violation of this Ordinance and shall be subject to Article 12: Violations
and Enforcement.
D. Zoning Compliance Approval Review Standards
The Planning Director shall issue a zoning compliance approval only on finding that
the proposed use of the building or land conforms to the requirements of this
Ordinance.
10.3.9. TREE REMOVAL PERMIT
A. Purpose
The purpose of this section is to provide a uniform mechanism for ensuring all
development complies with the standards in Section 5.3.4, Tree Retention
Standards.
B. Applicability
1. General
a. Unless a waiver, exemption, or exception applies in accordance with
subsection 2 below, no person, directly or indirectly, shall remove any
regulated tree identified in Section 5.3.4, Tree Retention Standards,
from public or private property without first obtaining a tree removal
permit in accordance with this section.
b. Unless a waiver, exemption, or exception applies in accordance with
subsection 2 below, a tree removal permit authorizing approval is
required before any clearing, grading, or other authorizations are
issued under this Ordinance, including erosion and sedimentation
control permits (see Article 8: Erosion and Sedimentation Control) and
building permits. The portion of the tree removal permit approving the
required mitigation plan shall not be required until after construction
plan approval. [10-03-2022]
c. An approved tree removal permit for new construction shall apply to the
entire site.
Unified Development Ordinance | New Hanover County, NC 10-35
2. Waivers, Exemptions, and Exceptions
a. The Planning Director may waive the requirement for a tree removal
permit during an emergency such as a hurricane, tornado, windstorm,
tropical storm, flood, or other natural disaster.
b. The procedures and standards in this section do not apply to lands
exempted from the tree retention standards by Section 5.3.1,
Applicability.
c. If any regulated tree under Section 5.3, Tree Retention, is determined
to be creating a hazardous condition which immediately endangers the
public health, safety, or welfare, or causes an immediate disruption of
public services, the Planning Director may authorize the removal of the
tree without a tree removal permit.
C. Tree Removal Permit Procedure
Figure 10.3.9.C summarizes the requirements and procedures in Section 10.2,
Standard Review Procedures, that apply to tree removal permits. Subsections 1
through 3 below, specify the required procedure for a tree removal permit, including
applicable additions or modifications to the standard review procedures.
Figure 10.3.9.C: Summary of Tree Removal Permit Procedure
(Optional)
Pre-Application Conference
(Optional)
Community Information
Meeting
1
Application
Submittal &
Acceptance
2
Planning
Director Review
& Decision
Public Hearing
Scheduling &
Notification
Advisory Body
Review & Action
Decision-
Making Body
Review & Action
3
Post-Decision
Limitations and
Actions
1. Application Submittal and Acceptance
Applications shall be submitted in accordance with Section 10.2.4, Application
Submittal and Acceptance.
2. Staff Review and Action
The Planning Director shall review the application and make a decision in
accordance with Section 10.2.5, Staff Review and Action, and Section 10.3.9.D,
Tree Removal Permit Review Standards. The Planning Director’s decision shall be
one of the following:
a. Approve the application as submitted;
b. Approve the application, subject to conditions of approval; or
c. Deny the application.
3. Post-Decision Limitations and Actions
The post-decision limitations and actions in Section 10.2.10, Post-decision
Limitations and Actions, apply, except that a tree removal permit shall
automatically expire one year after the date it is issued. [05-03-2021]
10-36 New Hanover County, NC | Unified Development Ordinance
D. Tree Removal Permit Review Standards
The Planning Director shall issue a tree removal permit only on determining the
application complies with all applicable standards of Section 5.3,
Unified Development Ordinance | New Hanover County, NC 10-37
Tree Retention, and that any of the following conditions exist:
1. Essential site improvements cannot be accommodated on the site without the
removal of protected or significant trees;
2. The regulated tree is dead, severely diseased, injured, or in danger of falling
close to existing or proposed structures;
3. The regulated tree is causing disruption of existing utility service or causing
passage problems upon the right-of-way;
4. The regulated tree is posing an identifiable threat to pedestrian or vehicular
safety;
5. The regulated tree violates state and local safety standards; or
6. Removal of the regulated tree is necessary to enhance or benefit the health
or condition of adjacent trees or property.
10.3.10. FLOODPLAIN DEVELOPMENT PERMIT
The requirements for submittal and review of floodplain development permit
applications are set forth in Article 9: Flood Damage Prevention.
10.3.11. VARIANCE – ZONING AND SUBDIVISION
A. Purpose
The purpose of a variance is to allow certain deviations from specified standards of
this Ordinance when the landowner demonstrates that, owing to special conditions
beyond the landowner’s control (such as exceptional topographical conditions,
narrowness, shallowness, or the shape of a specific parcel of land), a literal
application of the standards would result in undue and unique hardship to the
landowner and the deviation would not be contrary to the public interest.
B. Applicability
1. The variance procedure in this section may be used to vary any of the
following standards:
a. General development standards and standards for maximum height,
maximum lot coverage, setbacks, minimum lot area, and minimum lot
width for each zoning district in Article 3: Zoning Districts [10-03-2022];
b. Article 5: General Development Standards; and
c. Article 6: Subdivision Design and Improvement.
2. The following variances are not allowed:
a. An increase in the development density (i.e. units per acre) beyond that
allowed in a base zoning district;
b. An increase in the number of a particular type of sign beyond that
allowed by Section 5.6, Signs; and
c. Permitting a use not allowed in a zoning district, or having the effect of
allowing a prohibited use or a prohibited sign.
10-38 New Hanover County, NC | Unified Development Ordinance
C. Zoning and Subdivision Variance Procedure
Figure 10.3.11.C summarizes the requirements and procedures in Section 10.2,
Standard Review Procedures, that apply to zoning and subdivision variances.
Subsections 1 through 5 below, specify the required procedure for zoning and
subdivision variances, including applicable additions or modifications to the standard
review procedures.
Figure 10.3.11.C: Summary of Zoning and Subdivision Variance Procedure
Public
Hearing
Procedures
(Optional)
Pre-Application Conference
(Optional)
Community Information Meeting
1
Application
Submittal &
Acceptance
2
Planning
Director Review
& Staff Report
3
Public Hearing
Scheduling &
Notification
Advisory Body
Review & Action
4
Board of
Adjustment
Hearing &
Decision
5
Post-Decision
Limitations and
Actions
1. Application Submittal and Acceptance
Applications shall be submitted in accordance with Section 10.2.4,
Application Submittal and Acceptance.
2. Staff Review and Action
The Planning Director shall review the application and prepare a staff report
in accordance with Section 10.2.5, Staff Review and Action. A
recommended decision on the application shall not be included in staff
reports on variance applications.
3. Public Hearing Scheduling and Public Notification
The Planning Director shall schedule public hearings and provide public
notification in accordance with Section 10.2.6, Public Hearing and
Preliminary Forum Scheduling and Public Notification.
4. Decision-Making Body Review and Action
[05-03-2021]
a. The Board of Adjustment shall conduct a quasi-judicial public hearing
on the application and make a decision in accordance with Section
10.2.9, Decision-making Body Review and Action, and Section
10.3.11.D, Zoning and Subdivision Variance Review Standards. The
Board’s decision shall be one of the following:
1. Approve the application as submitted;
2. Approve the application subject to conditions of approval; or
3. Deny the application.
b. The concurring vote of four-fifths of the Board shall be necessary to
grant a variance.
Unified Development Ordinance | New Hanover County, NC 10-39
c. Only conditions of approval mutually agreed to in writing by the
applicant and the Board of Adjustment are allowed. [05-03-2021]
5. Post-Decision Limitations and Actions
a. The post-decision limitations and actions in Section 10.2.10, Post-
decision Limitations and Actions, apply.
b. Any appeal of the Board of Adjustment’s or Planning Board’s decision
shall be to the Superior Court of New Hanover County, in accordance
with state law.
D. Zoning and Subdivision Variance Review Standards
1. Except as otherwise provided by subsection 2 below, the Board of
Adjustment shall grant a variance only if it reaches each of the following
conclusions based on findings of fact supported by competent, substantial,
and material evidence presented at the hearing: [05-03-2021]
a. Unnecessary hardship would result from the strict application of this
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 this Ordinance, such that public safety is secured, and substantial
justice is achieved.
2. The Board of Adjustment shall grant a variance from the requirements of
Section 5.10, Airport Height Restriction, on finding that a copy of the
application was furnished to the Airport Authority for advice as to
aeronautical effects of the proposed variance and the Airport Authority was
given 15 days to respond to the application, and on reaching all of the
following conclusions, based on findings of fact supported by competent,
substantial, and material evidence presented at the hearing:
a. A literal application or enforcement of the regulations will result in
unnecessary hardship; and
b. The relief granted, will not be contrary to the public interest, will not
create a hazard to air navigation, will do substantial justice, and will be
in accordance with the spirit of this Ordinance.
3. The following factors do no constitute sufficient grounds for approval of a
variance:
10-40 New Hanover County, NC | Unified Development Ordinance
a. A request for a particular use that is expressly, or by inference,
prohibited in the zoning district;
b. Hardships resulting from factors other than application of the standards
of this Ordinance;
c. The fact that land or a structure may be utilized more profitably or be
more marketable with a variance;
d. The citing of other nonconforming or conforming uses of land or
structures in the same or other zoning districts; or
e. Financial hardship.
10.3.12. VARIANCE – FLOODPLAIN
The procedures and standards for obtaining a variance from the standards in Article
9: Flood Damage Prevention, are set forth in Section 9.7.5, Variance Procedures.
10.3.13. REASONABLE ACCOMMODATION
A. Applicability
1. General
This section provides a procedure for reasonable accommodation of
eligible persons in cases where the strict application of the standards of
this Ordinance would deprive them of their right to equal opportunity to use
a dwelling under the federal Fair Housing Act.
2. Eligible Persons
a. An eligible person is a person who meets the definition of a disabled or
handicapped person under federal law.
b. A person recovering from substance abuse is considered a person with
a disability or handicap provided they are not currently engaging in the
illegal use of controlled substances.
B. Reasonable Accommodation Procedure
Figure 10.3.13.B summarizes the requirements and procedures in Section 10.2,
Standard Review Procedures, that apply to reasonable accommodation
applications. Subsections 1 through 5 below, specify the required procedure for
reasonable accommodation applications, including applicable additions or
modifications to the standard review procedures.
Unified Development Ordinance | New Hanover County, NC 10-41
Figure 10.3.13.B: Summary of Reasonable Accommodation Procedure
Public Hearing Procedures
(Optional)
Pre-Application Conference
(Optional)
Community Information
Meeting
1
Application
Submittal &
Acceptance
2
Planning
Director Review
& Staff Report
3
Public Hearing
Scheduling &
Notification
Advisory Body
Review & Action
4
Board of
Adjustment
Hearing &
Decision
5
Post-Decision
Limitations and
Actions
1. Application Submittal and Acceptance
Applications shall be submitted in accordance with Section 10.2.4,
Application Submittal and Acceptance. No filing fee is required for a
reasonable accommodation application.
2. Staff Review and Action
The Planning Director shall review the application and prepare a staff report
in accordance with Section 10.2.5, Staff Review and Action. A
recommended decision on the application shall not be included in a staff
report on reasonable accommodation applications.
3. Public Hearing Scheduling and Public Notification
The Planning Director shall schedule public hearings and provide public
notification in accordance with Section 10.2.6, Public Hearing and
Preliminary Forum Scheduling and Public Notification.
4. Decision-Making Body Review and Action
a. The Board of Adjustment shall conduct a quasi-judicial public hearing
on the application and make a decision in accordance with Section
10.2.9, Decision-making Body Review and Action, and Section
10.3.13.C, Reasonable Accommodation Review Standards. The
Board’s decision shall be one of the following:
1. Approve the application as submitted;
2. Approve the application with revisions; or
3. Deny the application.
b. The concurring vote of four-fifths of the Board shall be necessary to
grant a reasonable accommodation. [05-03-2021]
5. Post-Decision Limitations and Actions
a. The post-decision limitations and actions in Section 10.2.10, Post-
decision Limitations and Actions, apply.
b. Any appeal of the Board of Adjustment’s decision shall be to the
Superior Court of New Hanover County, in accordance with state law.
10-42 New Hanover County, NC | Unified Development Ordinance
C. Reasonable Accommodation Review Standards
1. A reasonable accommodation application shall be approved on a finding
the proposed accommodation:
a. Will be used by an individual or individuals with a disability or handicap
protected under federal law;
b. Is the minimum needed to provide accommodation; and
c. Is reasonable and necessary.
2. For the purposes of this section, an accommodation is reasonable if it
would not undermine the legitimate purposes of this Ordinance, it does not
constitute a substantial alteration of this Ordinance or other County
standard, and it will not impose significant financial and administrative
burdens upon the County.
3. For the purposes of this section, an accommodation is necessary if it would
provide direct or meaningful therapeutic amelioration of the effects of the
particular disability or handicap, and would afford handicapped or disabled
persons equal opportunity to use housing in residential districts in the
County.
10.3.14. APPEAL OF ADMINISTRATIVE DECISION
A. Applicability
Any person who has standing under N.C.G.S. 160D-1402, or the County, may
appeal a decision, interpretation, or determination made by the Planning Director or
the TRC under this Ordinance to the Board of Appeals in accordance with the
procedures and standards in this section and state law. [05-03-2021]
B. Appeal of Administrative Decision Procedure
Figure 10.3.14.B summarizes the requirements and procedures in Section 10.2,
Standard Review Procedures, that apply to an appeal of an administrative decision.
Subsections 1 through 4 below, specify the required procedure for an appeal of an
administrative decision, including applicable additions or modifications to the
standard review procedures.
Figure 10.3.14.B: Summary of Appeal of Administrative Decision Procedure
Public
Hearing
Procedures
(Optional)
Pre-Application Conference
(Optional)
Community Information Meeting
Application Submittal &
Acceptance
Staff Review & Action
2
Public Hearing
Scheduling &
Notification
Advisory Body
Review & Action
3
Board of
Adjustment
Hearing &
Decision
4
Post-Decision
Limitations and
Actions 1 Notice of Appeal
Unified Development Ordinance | New Hanover County, NC 10-43
1. Notice of Appeal
The procedures and requirements in Section 10.2.4, Application Submittal
and Acceptance, and Section 10.2.5, Staff Review and Action, do not apply
to appeals of administrative decisions. Instead, a Notice of Appeal, along
with the required fees, shall be filed and processed in accordance with
subsections a through e below.
a. The appellant shall file a Notice of Appeal stating the grounds for the
appeal with the County Clerk within 30 days of:
1. Receipt of written notice in accordance with Section 10.2.10.A,
Notification to Applicant; or
2. If the appellant did not receive written notice in accordance with
Section 10.2.10.A, Notification to Applicant, receipt of actual or
constructive notice of the decision.
b. The Planning Director shall transmit all documents and exhibits
constituting the record upon which the decision appealed from is taken
to the Board of Adjustment, and shall provide a copy of the record to
the appellant and to the owner of the property that is the subject of the
appeal, if the appellant is not the owner.
c. An appeal of a notice of violation or other enforcement order stays
enforcement of the action appealed from, subject to subsections 1 and
2 below.
1. The official who made the decision may certify to the Board of
Adjustment, after the Notice of Appeal is filed, that because of the
facts stated in an affidavit:
i. A stay would cause imminent peril to life or property; or
ii. A stay would seriously interfere with enforcement of this
Ordinance because the violation is transitory in nature.
2. If a certification is made in accordance with subsection 1 above,
enforcement proceedings shall not be stayed except by a
restraining order, which may be granted by a court.
d. If enforcement proceedings are not stayed in accordance with
subsection c above, the appellant may file with the Planning Director a
request for an expedited hearing of the appeal, and the Board of
Adjustment shall meet to hear the appeal within 15 days after the
request is filed.
e. Decisions granting a permit or otherwise affirming that a proposed use
of property is consistent with this Ordinance shall not stay the further
review of applications for development approvals or permits for the
property. In such cases, the appellant may request, and the Board may
grant, a stay of a final decision of permit applications or building permits
affected by the issue being appealed.
10-44 New Hanover County, NC | Unified Development Ordinance
2. Public Hearing Scheduling and Public Notification
The Planning Director shall schedule the public hearing on the appeal and
provide public notification in accordance with Section 10.2.6, Public
Hearing and Preliminary Forum Scheduling and Public Notification.
3. Decision-Making Body Action
a. The Board of Adjustment shall conduct a quasi-judicial public hearing
and make a decision on the appeal, by vote of a majority of members,
not counting vacant positions on the Board or members who are
disqualified from voting. The hearing and decision shall be in
accordance with Section 10.2.9, Decision-making Body Review and
Action, and Section 10.3.14.C: Appeal of Administrative Decision
Standards. The Board’s decision shall be one of the following:
1. Affirm (wholly or partly) the decision;
2. Modify the decision; or
3. Reverse the decision.
b. In making its decision, the Board of Adjustment shall have all the
powers of the official who made the decision and shall make any order,
requirement, decision, or determination that ought to be made.
4. Post-Decision Limitations and Actions
a. The post-decision limitations and actions in Section 10.2.10, Post-
decision Limitations and Actions, apply.
b. Any appeal of the Board of Adjustment’s decision shall be to the
Superior Court of New Hanover County, in accordance with state law.
C. Appeal of Administrative Decision Standards
The Board of Adjustment shall modify or reverse the decision on appeal only if it
finds, based upon competent, substantial, and material evidence in the record, that
there has been a clear and demonstrable error, abuse of discretion, or denial of
procedural due process in the application of the facts in the record to the applicable
standards of this Ordinance.
10.3.15. INTERPRETATION
A. Purpose
The purpose of the interpretation procedure in this section is to establish a uniform
mechanism for rendering formal written interpretations of the text of this Ordinance
and the boundaries or classifications on the Official Zoning Map.
B. Applicability
1. The procedure and standards in this section are required for the rendering
of formal written interpretations of the text of this Ordinance and the
boundaries or classifications on the Official Zoning Map.
Unified Development Ordinance | New Hanover County, NC 10-45
2. Except as set forth in subsection 3 below, the Planning Director is
responsible for making interpretations of all provisions of this Ordinance,
including, but not limited to:
a. Interpretations of the text;
b. Interpretations of the zoning district boundaries; and
c. Interpretations of whether an unlisted use in Table 4.2.1: Principal Use
Table, is comparable to a listed use or not, and should be allowed in a
zoning district or prohibited in that district.
C. Interpretation Procedure
Figure 10.3.15.C summarizes the requirements and procedures in Section 10.2,
Standard Review Procedures, that apply to interpretations. Subsections 1 through 3
below, specify the required procedure for an interpretation, including applicable
additions or modifications to the standard review procedures.
Figure 10.3.15.C: Summary of Interpretation Procedure
(Optional)
Pre-Application Conference
(Optional)
Community Information Meeting
1
Application Submittal &
Acceptance
2
Planning Director
Interpretation
Public Hearing
Scheduling &
Notification
Advisory Body
Review & Action
Decision-
Making Body
Review & Action
3
Post-Decision Limitations and
Actions
1. Application Submittal and Acceptance
Applications shall be submitted in accordance with Section 10.2.4,
Application Submittal and Acceptance, subject to the modifications in
subsections a and b below. Written requests for interpretations shall be
considered “applications” for purposes of this section. An application for an
interpretation may be initiated by the Board of Commissioners, the
Planning Board, any resident or landowner in the County, or any person
having a contractual interest in land in the County.
2. Staff Review and Action
a. The Planning Director shall distribute the application, review the
application, and make an interpretation, which shall constitute the
decision on the application, in accordance with Section 10.2.5, Staff
Review and Action, and Section 10.3.15.D: Interpretation Standards.
b. Prior to rendering an interpretation, the Planning Director shall consult
with the County Attorney and other affected County officials
3. Post-Decision Limitations and Actions
a. The post-decision limitations and actions in Section 10.2.10, Post-
decision Limitations and Actions, apply.
10-46 New Hanover County, NC | Unified Development Ordinance
b. A written interpretation shall be binding on subsequent decisions by the
Planning Director or other officials in applying the same provision of this
Ordinance or the Official Zoning Map in the same circumstance, unless
the interpretation is modified in accordance with this section, or the
relevant text of this Ordinance or zoning district boundary is amended.
c. The Planning Director shall maintain a record of written interpretations
that shall be available in the Planning Department during normal
business hours.
D. Interpretation Standards
1. Unspecified Uses
Interpretation of whether an unspecified use is similar to a use identified in
Table 4.2.1: Principal Use Table, or is prohibited in a zoning district shall
be based on Section 4.1.3, Classification of New or Unlisted Uses.
2. Zoning Map Boundaries
Interpretation of zoning district boundaries on the Official Zoning Map shall
be in accordance with the standards in Section 3.1.1.C, Rules for
Interpretation of District Boundaries.
3. Text Provisions
Interpretation of the text and its application shall be based on the standards
in Section 2.2, Rules of Construction, and the following considerations:
a. The clear and plain meaning of the provision’s wording, as defined by
the meaning and significance given specific terms used in the
provision—as established in Section 2.2, Rules of Construction, and by
the common and accepted usage of the term;
b. The intended purpose of the provision, as indicated by purpose
statements, its context and consistency with surrounding and related
provisions, and any legislative history related to its adoption; and
c. The general purposes served by this Ordinance, as set forth in Section
1.3, General Purpose and Intent.