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STATE OF NORTH CAROLINA IN THE GENERAL COURT OF JUSTICE

FILED SUPERIOR COURT DIVISION


COUNTY OF BUNCOMBE FILE N0.19 CVS
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BUNCOMBE COUN1Y, a North COMPLAINT


Carolina county and body politic, and

BUNCOMBE COUN1Y BOARD OF


ADJUSTMENT

Defendant,

NOW COMES RAB Builders LLC (hereinafter "Plaintiff" and/ or "RAB"),


complaining of the Defendants Buncombe County and Buncombe County Board of
Adjustment, and alleges and says as follows:

1. Plaintiff is a Florida limited liability company authorized to do business in


the State of North Carolina.

2. Buncombe County (hereinafter "County") is a county and political


subdivision organized under the laws of the State of North Carolina pursuant to Chapter
153A of the North Carolina General Statutes.

3. At all times relevant hereto, the Buncombe County Board of Adjustment


(hereinafter "BOA") is an administrative agency of the County organized pursuant to law
that is authorized by the County's zoning ordinance to grant conditional use permits
where allowed in a particular use district, to grant variances and hear appeals of
aggrieved parties from rulings of the County's zoning or code enforcement officers.

4. Plaintiff acquired a contract with Linmar Properties, LLC to purchase two


parcels of land located at 423 Moffitt Road within Buncombe County with the following
Parcel Identification Numbers: 9668-98-5747 and 9668-99-7242 (hereinafter collectively
"Site").

5. The Site consists of approximately 31.4 total acres.

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6. Moffitt Road, also known as Secondary Road (SR) 2409, is a public road or
highway maintained by the North Carolina Department of Transportation.

7. By ordinance, the County has adopted zoning regulations applicable to its


entire political limits and territorial jurisdiction (hereinafter "County Zoning
Ordinance"). A true and accurate copy of the County Zoning Ordinance is attached as
Exhibit "A" and incorporated herein by reference.

8. Around March 12, 2018, RAB submitted an application to the County for a
conditional use permit (hereinafter "CUP") for a Level I Planned Unit Development on
the Site (hereinafter "Project") as provided for in Sec. 78-641 and Sec. 78-677 of the County
Zoning Ordinance. A true and accurate copy of the application is attached hereto as
Exhibit "B" and incorporated herein by reference.

9. RAB's application was complete and in compliance with the development


plan requirements in Sec. 78-677(d) of the Zoning Ordinance. In all respects, RAB
complied with the procedural requirements for requesting a CUP for the Project as set
forth in the County Zoning Ordinance.

10. The Site is zoned by the County R-2, Residential District. A planned unit
development, level I (hereinafter "PUD") is an allowed use in R-2, subject to the issuance
of a conditional use permit.

11. The intent of R-2 is stated in Sec. 78-640 of the County Zoning Ordinance as
follows:

The R-2 Residential District is primarily intended to provide locations for


residential development and supporting recreational, community service
and educational uses in areas where public water and sewer services are
available or will likely be provided in the future. These areas will usually
be adjacent to R-1 Residential Districts, will provide suitable areas for
residential subdivisions requiring public water and sewer services, and in
order to help maintain the present character of R-1 districts, will not allow
manufactured home parks.

12. The R-2 district allows as of right a wide range of residential, institutional
and small-scale commercial uses, including, without limitation, single-family housing,
duplexes, multi-family dwelling units, subdivisions, planned unit developments,
community-oriented development, bed and breakfast inns, day care nurseries, group
homes, health care facilities, libraries, rooming houses, schools, and vacation rentals.

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13. Public water from the City of Asheville and public sewer services from the
Metropolitan Sewerage District of Buncombe County are available at the Site. As part of
the Project, RAB planned to connect to public water and public sewer.

14. The Site is surrounded on three (3) of its sides or boundaries to other
property zoned R-2. The Site is adjacent to R-1 zoned property, located to the North
across Moffitt Road.

15. The Project consisted of 214 residential dwelling units as follows: ten (10)
20-unit apartment buildings and seven (7) duplex buildings; a community clubhouse and
pool.

16. The PUD provisions of the County Zoning Ordinance for a R-2 district
allowed for a maximum density on the Site of twelve (12) dwelling units per acre. The
proposed Project density for the Site was approximately seven (7) dwelling units an acre,
which is about 58% of the allowable capacity.

17. As part of the Project, approximately 15.6 acres was planned to be


preserved as open space, with a substantial buffer of mature trees along the Swannanoa
River (with proposed trails) and along the perimeter of the proposed residential units.
The main component of the open space plan was the preservation of the 7.621-acre First
Parcel abutting the Swannanoa River.

18. As part of the Project, anticipated improvements were designed to avoid


any extremely steep slopes on the Site.

19. As part of its CUP application, RAB submitted two environmental


assessments of the Site, which submittals are not a requirement of the County Zoning
Ordinance. Said reports, which are incorporated herein by reference, indicated that: (i)
there were no streams or wetlands on the Site that would require review by the North
Carolina Department of Environmental Quality (Division of Water Resources) or the
Army Corp of Engineers; and (ii) there were no environmental hazards on the Site.

20. As part of its CUP application, RAB submitted a traffic impact analysis
report by a North Carolina licensed professional engineer, which report is incorporated
herein by reference (hereinafter "Traffic Report"). Said report was not a requirement of
the County Zoning Ordinance for processing RAB' s application. In the Traffic Report,
RAB's traffic engineer opined and later testified that the Project would not cause adverse
traffic impacts on the adjacent roadway network. Specifically, the Project driveway's
intersection with Moffitt Road would not degrade general roadway or driver safety at
this intersection. The traffic engineer testified that the traffic anticipated to be generated
from the Project would also not degrade the other intersections noted in the study.

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21. A driveway permit from the North Carolina Department of Transportation,
like other developments with driveways connecting to State roads, will be required. Said
State agency is delegated responsibility from the North Carolina General Assembly to
protect the safety of the traveling public as a result of new driveway connections to State
roads for new developments (N.C. Gen. Stat. §136-18(29)).

22. RAB's request for a CUP came before the BOA for a hearing on April 11,
2018 (hereinafter "April 11th Hearing").

23. The Project complied with all of the technical requirements of the County
Zoning Ordinance for a PUD in the R-2 district, including, without limitation, the
dimensional requirements for development such as density, building height, setbacks, lot
sizes (Sec. 78-642), off-street parking (Sec. 78-658), lighting (Sec. 78-668), the CUP
development plan standards (Sec. 78-677(d)) and the specific standards for PUDs (Sec.
78-678(b)(6)).

24. Sec. 78-677(g) of the County Zoning Ordinance establishes additional


general standards for the issuance of a CUP related to a PUD. It reads in pertinent part
as follows:

Before any conditional use permit is issued, the board of adjustment shall
make written findings certifying compliance with the specific rules
governing the individual conditional use and that satisfactory provision
and arrangement has been made for at least the following, where
applicable:

(1) The proposed use will not adversely affect the health or safety of
persons residing or working in the neighborhood of the proposed
use.
(2) The proposed use will not be detrimental to the public welfare or
injurious to property or public improvements in the neighborhood.
(3) The proposed use will not cause or have adverse effects on
surrounding properties due to noise, vibration, odor, or glare effects.
(4) Satisfactory ingress and egress for the proposed use of the property
and proposed structures has been provided. Particular attention has
been paid to automotive and pedestrian safety and convenience,
traffic flow and control.
(5) Provision of off-street parking and loading areas where required,
with particular attention to the items in section 78-658.
(6) Provision of adequate and proper utilities, with reference to
locations, availability, and compatibility.

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(7) Buffering, with reference to type, location, and dimensions. The
board of adjustment shall exercise ultimate discretion as to whether
adequate buffering has been provided.
(8) Signs, if any, and proposed exterior lighting, with reference to glare,
traffic safety, economic effect, and compatibility and harmony with
properties in the district.
(9) Playgrounds, open spaces, yards, landscaping, access ways, and
pedestrian ways, with reference to location, size, and suitability.
(10) Buildings and structures, with reference to location, size, and use.·
(11) Hours of operation, with particular reference to protecting and
maintaining the character of the neighborhood.

25. As part of the April 11th Hearing, the County Planner Deborah Truempy
testified and presented a written recommendation that showed that the Project complied
with the CUP standards for the Project. She stated in pertinent part as follows:

(a) A traffic study was provided by the Plaintiff which concluded that the
additional traffic generated is not anticipated to degrade general roadway
or driver safety at the intersections studied: site at Moffitt Road; Moffitt
Road at Moffitt Branch Road; Moffitt Branch Road at US 70; and US 70 at
Porter Creek Road.

(b) The Fire Marshall's Office has approved the plan for emergency access and
the erosion control and storm water conceptual plans have been found
adequate by those deparbnents.

(c) The Project will provide much needed rental units on the east side [of
Buncombe County} with a workout facility, community clubhouse, pool,
and nature trails along the Swannanoa River.

(d) The property entrance will meet NCDOT requirements and internal
vehicular circulation will provide adequate 2-way traffic flow and parking.
Sidewalks will connect the residential units to community amenities.

(e) Approximately 15.6 acres will be preserved as open space and all other
areas will be landscaped.

26. Several documented experts in traffic and civil engineering testified on


behalf of RAB regarding the Project's adherence to the standards in the County Zoning
Ordinance and the positive attributes related to erosion, storm water, traffic and
aesthetics.

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27. During the April 11th Hearing, upon information and belief, nine (9)
persons spoke in opposition to the Project (hereinafter "Opposition"). They addressed
generalized, nonspecific concerns about the Project, including traffic impacts, character
of the area, noise, erosion, effects on the Swannanoa River, lighting, and buffers
(hereinafter "Opposition Testimony").

28. The Opposition's properties were principally located to the North of the
Site in areas zoned R-1.

29. Both R-1 and R-2 allow for duplexes as of right, a significant component of
the Project. 1

30. The density proposed for the Project's residential uses was less than the
density allowed as of right in R-1(i.e.10 units an acre for R-1 compared to the Project's 7
units per acre).

31. The Opposition Testimony regarding the Project was plainly incompetent
evidence for being unsupported, hypothetical or speculative opinion evidence. The
BOA either knew or should have known that to be the case.
32. The BOA either knew or should have known that Plaintiff, through its
documentary and testimonial evidence, including several experts, had established a
prima face case for entitlement to the CUP and that there was no competent, material and
substantial evidence to rebut that entitlement.

33. After closing the public hearing, the BOA, by a 5-2 vote, decided to deny
RAB's CUP. The decision to deny the CUP was founded upon conclusions which were
speculative, sentimental, personal, vague and merely an excuse to prohibit the use
requested.

34. On May 9, 2018, the BOA issued a written decision, a true and accurate copy
of which is attached hereto as Exhibit "C" and incorporated herein by reference
(hereinafter "Order"). In the Order, the BOA concluded that the Project did not comply
with subparagraph (2) of Sec. 78-677(g) of the County Zoning Ordinance, to wit: "The
proposed use will not be detrimental to the public welfare or injurious to property or
public improvements in the neighborhood". (hereinafter "Public Welfare Standard").

35. The BOA's singular so-called finding of fact in the Order to support its
conclusion in paragraph 31 above was that the Project would "change the character of the
surrounding area."

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36. The BOA did not conclude that the Project failed to meet any of the other,
more specific standards in Sec. 78-677, including standards addressing with particularity
possible adverse effects of noise, glare, runoff and traffic.

37. The effect of the BOA's denial was to rezone the Site from R-2 to R-1 in
keeping with the wishes of the Opposition, which action was ultra vires, arbitrary and
capricious as a matter of law. I

38. The County's governing board established the Zoning Ordinance, which
included the Public Welfare Standard. The Public Welfare Standard is vague, ill-defined,
and provides unguided discretion to the BOA to reject a conditional use applicant such
as Plaintiff for any reason, including for personal or political motivations.

39. By creating an open-ended policy without sufficient legal parameters, the


County allowed the BOA to unlawfully discriminate against the Plaintiff in favor of the
desires of the Opposition.

40. On April 16, 2018, Nate Pennington, Bµncombe County Planning Director,
admitted to Jason Gilliland, Project design engineer, in a follow up call regarding the
results of the April 11th Hearing that planning staff was considering a training session to
the BOA, particularly for new members, to clarify and clearly define the role and duty
the board is responsible to uphold.

41. After May 9, 2018, Plaintiff received a copy of the Order.

42. On two separate occasions, Plaintiff notified counsel for the Defendants that
the CUP denial violated unambiguous law from the courts of our State, and if left
uncured, would result in Plaintiff losing its out-of-pocket expenses and the financing to
close on the purchase of the Site as well as losing the substantial profits and reasonable
investment-back expectations associated with the completion of its plan for the Project.
True and accurate copies of correspondence are attached hereto as Exhibits "Dl" and
"D2".

43. Despite clear notice as evidenced by Exhibits Dl and 02, the Defendants
took no action, and in fact, continued to defend the erroneous CUP denial, which I
necessarily led to the Plaintiffs' losses described in the above letters.

44. In a separate action (18 CVS 2406), in an effort to exhaust administrative


remedies and to avoid a claim by Defendants of res judicata, Plaintiff has appealed the
Order pursuant to N.C. Gen. Stat. §160A-393 to address the legality of the BOA's CUP
denial, which appeal is on-going as of the filing of this Complaint (hereinafter "Permit
Appeal Case")

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45. At all relevant times hereto, Plaintiff has standing to bring this action as a
result of being the applicant before the decision-making board whose decision is being
appealed and as a result of suffering damages as a direct consequence of the unlawful
CUP denial.

46. Plaintiff's constitutional rights have been abridged by the actions of the
Defendants and consequently, there is no adequate remedy available to redress Plaintiff's
injuries except as set forth herein. As a result of the constitutional claims set forth herein,
Defendants do not have immunity. Alternatively, upon information and belief,
Defendants have waived immunity by the purchase of insurance.

COUNT ONE
Arbitrary and Capricious, Abuse of Discretion

47. The Plaintiff incorporates by reference the allegations in paragraphs 1-46.

48. The Defendants' actions as alleged above were arbitrary and capricious and
constituted an abuse of discretion in that RAB fully complied with all regulatory
requirements for the approval of RAB's application for the CUP. RAB had a legitimate
claim of entitlement to the CUP based on the County Zoning Ordinance standards for R-
2 development and the application of well-established case law in our State. E.g.
Woodhouse u. Board of Comm'rs of Town of Nags Head, 299 N.C. 211, 216, 261 S.E.2d
882, 886 (N.C. 1980).

49. As a direct result of Defendants' wrongful actions, RAB incurred, and is


continuing to incur, substantial expenditures well in excess of $10,000.00 in defending its
rights through the Permit Appeal Case, including, but not limited to, consultant fees and
attorney's fees.

50. As a direct result of Defendants' wrongful actions, RAB has suffered


substantial damages, including, but not limited to, (i) out-of-pocket expenses; (ii) losing
its profits which would have been reasonably gained from said Project and; (iii) lost
opportunities to sell the Site for a substantial profit.

51. Plaintiff has a protected interest in the CUP by way of the County Zoning
Ordinance and the application of N.C.G.S.A. § 153A-320.1, § 143-755.1 and § 153A-
340(c1). Collectively such regulations and statutes contain particularized criteria to guide
the County in reaching the conclusion that the Project complied with the Zoning
Ordinance and the outcome, based on the administrative record before the BOA, was
clear and mandated, to wit: the CUP must be approved. As a matter of law, the
entitlement to the CUP interest should be considered vested in RAB from the moment

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RAB complied with the County Zoning Ordinance requirements and submitted their
application to the BOA.

. 52. Despite compliance with all the standards that lawfully curbed unguided
discretion, contrary to law, through the required application/hearing process for the
CUP, Plaintiff was subjected by Buncombe County to the Public Welfare Standard, a
vague, over-reaching, and nebulous standard. Said standard in the quasi-judicial context
constitutes an unlawful delegation of legislative authority as set forth in Article II, Section
1 of the North Carolina Constitution.
/1
53. Sec. 78-596 of the County Zoning Ordinance states that [t]he board of
adjustment shall have the authority to rule on matters of interpretation of this
article ... issue conditional use permits, and grant variances."
.
54. In exercising this authority, the BOA prejudiced Plaintiff by abusing its
power under the unlawfully vague County Zoning Ordinance when it denied Plaintiff's
/1
application for a CUP on the grounds that the Project would change the character" of
the area.

55. In disregard of the law, the Defendant Buncombe County Board of


Adjustment as appointed agents of Buncombe County, with the advice and counsel of
the Buncombe County Legal Department, wrongfully denied Plaintiff's CUP application
based on erroneous standards and considerations.

56. Further, as stated above, counsel for Defendants received notice from
Plaintiff's counsel of the BOA's unlawful grounds for the denial of Plaintiff's application
and the notice regarding the damages Plaintiff would suffer should the BOA decision
stand. (see Exhibits Dl and D2).

57. The BOA's discretionary decision in the case at hand is informed by policies
developed by Buncombe County and accordingly those policies are the acts of Buncombe
County itself.

58. Based on the actions of the Defendants as alleged above, being arbitrary
and capricious and an abuse of discretion, the Plaintiff is entitled to have a recover from
the Defendants its damages as more fully developed.at trial of these proceedings.

COUNT TWO
Substantive and Procedural Due Process Violations

59. Plaintiff incorporates by reference the allegations contained in Paragraphs


1-58 above.

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60. In North Carolina, a property owner or permit applicant such as Plaintiff
has a right to make any lawful use of his or her land as he or she sees fit.

61. By the Defendants' actions referenced above, the County has failed to
clearly place the Plaintiff on notice as to what standards are reasonably applicable to a
developer concerning PUD standards in the R-2 district. The basis for the BOA denial is
so fraught with uncertainty, vagueness or indefiniteness of its limitations as to be
unenforceable as a matter of procedural due process under our Federal and State
Constitutions. Said failure to provide a uniform rule of action leaves the Plaintiff subject
to the unguided or unbridled discretion of the BOA, which body did in fact exercise it so
as to improperly give exclusive privileges to the Opposition, and in a manner that is
arbitrary, oppressive and attended with manifest abuse of authority.

62. If Buncombe County, by and through the BOA, applied against Plaintiff a
vague, over-reaching County Zoning Ordinance with no legal basis or justification,
depriving RAB of its property rights without the law of the land as set forth in Article I,
Section §19 of the North Carolina Constitution and without due process as set forth in the
14th Amendment to the United States Constitution.

63. As a result of the above alleged constitutional violations, RAB is entitled to


have and recover from the Defendants damages with interest in excess of $10,000.00, as
determined by a jury at trial.

COUNT THREE
Violations of Art. I, §1and35 of the North Carolina Constitution

64. Plaintiff incorporates by reference the allegations contained in paragraphs


1-63 above.

65. By the actions of the Defendants as alleged above, Plaintiff has been
deprived of its liberty and fruits of its labor pursuant to Article I, §1 and §35 of the North
Carolina Constitution, entitling Plaintiff to have and recover from Defendants damages
with interest, in excess of $10,000.00, as determined by a jury at trial.

COUNT FOUR
Equal Protection or Illegal Discrimination

66. Plaintiff incorporates by reference the allegations contained in paragraphs


1-65 above.

67. Upon information and belief, the Defendants have administered thJir
authority against Plaintiff in a discriminatory fashion and with an unequal hand in that:
(i) the BOA is tasked with impartially applying the County Zoning Ordinance; (ii) the

10

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BOA has approved CUPs for applicants that similarly complied with the development
plan mandates in of the County Zoning Ordinance, namely, Sec. 78-677(g) and Sec. 78-
678(b)(6); (iii) on the record, the BOA made no determination of standing as to several
individuals who testified and were allowed to offer opinion testimony outside of the
permissible scope of the rules of a quasi-judicial hearing; and (iv) the BOA weighed
inappropriate factors and applied an arbitrary and capricious standard in place of the
dearly defined regulations and considerations listed within the County Zoning
Ordinance.

68. Upon information and belief, the Defendants' actions have been prompted
by improper motives and purposes.

69. As a result of Defendants' actions as alleged above, Plaintiff has been


deprived of the equal protection of the laws in violation of the 14th Amendment to the
United States Constitution and Article I, §19 of the North Carolina Constitution, entitling
Plaintiff to have and recover from the Defendants damages with interest, in excess of
$10,000.00, to be determined by a jury at trial.

COUNT FIVE
42 u.s.c.s. § 1983

70. Plaintiff incorporates by reference the allegations contained in paragraphs


1-69above.

71. Based on Defendants' actions as alleged above, Plaintiff has been deprived
of its rights, privileges, or immunities secured by the Constitution and law, entitling
Plaintiff to relief under 42U.S.C.S. §1983 (hereinafter "1983 Claim").

72. Based on the 1983 Claim, RAB is entitled to have and recover its damages
with interest, in excess of $10,000.00, to be determin~d by a jury at trial. Moreover, RAB
is entitled to have and recover its attorney's fees pursuant to the 1983 Claim.

COUNT SIX
STAY OF PROCEEDINGS

73. Plaintiff incorporates by reference the allegations contained in paragraphs


1-72 above.

74. As noted above, the Permit Appeal Case is proceeding since it is statutorily
mandated that appeals of quasi-judicial proceedings follow N.C. Gen. Stat. §160A-393,
including the short statute of limitation period provided therein (e.g. 30 days).

11

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75. As a result of the Permit Appeal Case, and in order to avoid inconsistent
rulings arising from two cases potentially dealing with the same claims or issues related
to the CUP denial, and to promote judicial economy, this matter should be stayed
pending the completion of the appeals in 18 CVS 2406, Buncombe County Superior Court.

76.The Plaintiff moves for a stay of proceedings pending the outcome of the
Permit Appeal Case.

WHEREFORE, the Plaintiff prays Judgment of the Court as follows:

1. That the Plaintiff has and recovers damages from the Defendants, jointly
and severally, in excess of $10,000.00 as determined by a jury trial;

2. For a stay of proceedings as provided in Count Six;

3. For a trial by jury;

4. For attorney's fees as allowed by law, including, but not limited to, U.S.C.S.
§1983;

5. For an award of costs as allowed by law;

6. For an award of interest as allowed by law;

7. For any further relief that the Court deems just and proper.

This the 8U1 day of May, 2019.

VAN WINKLE, BUCK, WALL,


STARNES AND DAVIS, P.A.

By:_ _ _()...:..--~~
d-.,. _- - - 1 - - 1 - - - - - - - -
Craig Dixon~stus
Attorney for Plaintiff
11 North Market Street
Post Office Box 7376
Asheville, NC 28802
Telephone: (828) 258-2991
Facsimile: (828) 257-~767
4843·6429-5062, v. 1

12

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Chapter 78, Code of Ordinances, Buncombe County

The Zoning Ordinance


of
Buncombe County,
North Carolina

Initially Adopted December 1, 2009

As Amended October 17, 2017

PLAINTIFF'S
I EXAIT
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ARTICLE VI. BUNCOMBE COUNTY ZONING ORDINANCE

DIVISION 1. GENERALLY

Sec. 78-576. Title.


This article shall be known and may be cited as "The Zoning Ordinance of Buncombe County,
North Carolina" and may be referred to as the "zoning ordinance".

Sec. 78-577. Authority.


In pursuance of the authority conferred by state law, the Buncombe County Board of
Commissioners hereby ordain and enact into law this article.

Sec. 78-578. Purpose.


The purpose of this article is to ensure orderly, attractive, and economically sound
development and to protect existing property values within Buncombe County.

Sec. 78-579. Jurisdiction.


The provisions of this article shall apply to the portion of Buncombe County specifically
identified and delineated on the zoning map entitled "The Official Zoning Map of Buncombe County,
North Carolina." Such map and all explanatory matter thereon accompany and are hereby made a part
of this article by reference. The ordinance shall be on file in the office of the Buncombe County Board
of Commissioners.

Sec. 78-580. Exemptions.


This article shall in no way regulate, prohibit, or otherwise deter any bona fide farm and its
related uses, except that any use of such property for non-farm purposes shall be subject to the
provisions of this article.
This article shall in no way regulate, prohibit, or otherwise deter any public safety
communications tower except that written notice by certified mail of the intent to erect a public safety
communications tower shall be sent to all adjoining landowners of the proposed facility and to all
owners of property within 500 feet of the proposed facility. No building perm it shall be issued for a
period of 30 days after sending the notice, unless written statements are received from all parties
required to be notified indicating that they have no objection to the facility.
This article shall not deter building modifications or retrofit interventions which are necessary to
accommodate the Americans with Disabilities Act (ADA). The Zoning Administrator shall be granted
authority to make necessary exemptions regarding ADA specific retrofits which do not comply with this
article; except that if the decision involves mitigating factors, a larger community impact, or the need
for the retrofit is unclear, the Zoning Administrator may defer decisions to the Board of Adjustment.

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Sec. 78-581. Definitions.
The following words, terms, and phrases, when used in this article, including overlay districts,
shall have the meanings ascribed to them in this section, except where the context clearly indicates a
different meaning:
Accessory use means a use customarily incidental and subo rdinate to the principal use or
building and located on the same lot with such principal use or build ing .
Adult entertainment establishment means any establishment which would be considered an
adult bookstore, adult motion-picture theater, adult mini-motion-picture theater, or adult live
entertainment business as each is defined in G.S. 14-202.10. This definition does not include bona-
fide massage parlors.
Airport means property that is maintained for the landing, refueling and takeoff of aircraft and for
the receiving and discharge of passengers and cargo traveling by air, to include aviation related
facilities, structures, and property.
Alley means a public way which affords only a secondary means of access to abutting
property.
Amusement park means establishments of the type known as "amusement parks," "theme
parks," and "kiddie parks," which group together and operates in whole or in part a number of
attractions, such as mechanical rides, amusement devices, refreshment stands , and picn ic
grounds and all associated activities. This definition specifically excludes camps, motion picture
theaters, museums, art galleries, arboreta and botanical and zoological gardens.
Apartment means a part of a building consisting of rooms intended, designed or used as a
residence by an individual or single family.
Apartment, garage means a part of a garage consisting of rooms intended, designed or used
as a residence by an individual or a single family.
Applicant means the party applying for permits or other approval required by this article.
Asphalt plant means an establishment, whether portable or nonportable, engaged in petroleum
refining , manufacturing asphalt-type roofing materials, asphalt and tar paving mixtures and paving
block made of asphalt and various compositions of asphalt or tar with other materials; and the
recycling of old asphalt into asphalt-type material.
Aviation-related means any activity, use, facility, structure, service, property used for any
operational purpose related to, in support of, or complementary to the flight of ai rcraft to and from the
airport, to include convenience concessions serving the public.
Ballast is a device used with an electric-discharge lamp to obta in the necessary circuit
conditions (voltage, current, and waveform) for starting and operating.
Bed and breakfast inn means a private, owner-occupied business with 4 to 20 guests where
overnight accommodations and a morning meal are provided to guests for compensation and where
the bed and breakfast inn is operated primarily as a business.
Board of adjustment means a body composed of those appointed members whose duties,
powers, and procedures are set forth in division 3 of this article.
Bona fide farm means all land on which agricultural operations are conducted as the principal
use, to include cultivation of crops and the husbandry of livestock.
Buffer strip means vegetation consisting of evergreen trees or shrubs located along the side

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and rear lot lines.
Building means any structure having a roof supported by columns or by walls and intended for
shelter, housing, or enclosure of persons, animals or chattels. The connection of two buildings
by means of an open passageway, deck, or other such open structure, without a roof, shall not
be deemed to make them one building . The word "building" includes the word "structure."
Building, accessory means a detached building subordinate to the ma in building on a lot and
used for purposes customarily incidental to the main or principal build ing and located on the same lot.
Building height means the vertical distance of any building or structure, as measu red from the
highest ground level at the structure foundation to the uppermost point of the roof. For purposes of the
Steep Slope/Hig h Elevation and Protected Ridge Overlay Districts only, building height means the
average of the vertical distance measured from the highest ground level at the structure foundation to
the uppermost point of the roof and the vertical distance measured from the lowest ground level at the
structure foundation to the uppermost point of the roof.
Building, principal means a building used for the same purpose as the principal use of the lot.
Building, setback line means a line delineating the minimum allowable distance between the
property line and a building on a lot, within which no building or other structure shall be placed
except as otherwise provided. Front setback lines shall be measured from the highway right-of-way.
For purposes of the Beaverdam District only, front setback lines shall be measured from the edge of
the road .
Candela is the metric unit for luminous intensity (that is, power emitted by a light source in a
particular direction, with wavelengths weighted by the luminosity function , a standardized model of the
sensitivity of the human eye) .
Cargo/freight terminals , operations and activities means transportation establishments
furnishing services incidental to air, motor freight, and rail transportation including but not lim ited to
freight forwarding services; freight terminal facilities; packing, crating , inspection and weighing services ;
postal/package service bulk mailing distribution centers; transportatio n arrangement services; and
trucking facilities, including transfer and storage.
Community oriented development means a single and/or multifamily residential development or
a mixed-use development which includes single and/or multifamily affordable or workforce housing
units. Bonuses in density and/or minimum lot size may be provided in return for sustainable
development elements and/or the provision of community amenities.
Crematory shall mean any facility designed for the cremation of human or animal remains. A
crematory shall be considered the principle use of the property and it shall be treated as the same
zoning classification as an incinerator. A crematory may only be considered an accessory use if
located on the same property as a funeral home and if the remains are prepared for cremation at the
funeral home and not transferred from another operation .
Chip mill means any nonportable wood-chipping facility that stands alone and apart from a
sawmill or a pulpmill , and whose purpose is to provide wood chips to an off-site fabricating facility
including, but not limited to, a papermill or oriented strand board (OSB) mill.
Concrete plant means an establishment, whether portable or nonportable, primarily engaged in
manufacturing hydraulic cement, including portland, natural, and masonry cements delivered to a
purchaser in a plastic and unhardened state. This industry includes production and sale of central-
mixed concrete, shrink-mixed concrete, and truck-mixed concrete. Also included are the manufacture
of concrete products from a combination of cement and aggregate.

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Conditional use means a use which is permitted in specified zoning districts only after review
by the board of adjustment and found to meet specific conditions and procedures as set forth in this
article so as to maintain the safety and general welfare of the community.
Condominium means ownership of single units in a multiunit structure with common areas
and facilities in accordance with G.S. Chapter 47C , North Carolina Condominium Act, and any
other applicable state law.
Crest means the uppermost line of a mountain or chain of mountains from which the land falls
away on at least two sides to a lower elevation or elevations.
Cutoff means a luminaire light distribution where the candela per 1,000 lamp lumens does not
exceed 25 (2.5 percent) at or above an angle of 90° above nadir, and 100 (ten percent) at or above a
vertical angle 80° above nadir. This applies to all lateral angles around the luminaire.

\'90'

ao• ':.
"---..:

DUA means dwelling units per acre.


Day nursery and private kindergarten means a use of land and buildings to provide group
care for children.
Diameter at Breast Height (DBH) means the outside bark diameter measured at 4.0 feet above
the ground level on the uphill side of the tree.
Drop-in or short term child care center means a facility that is not located in a home, that
provides care to preschool children for no more than four hours a day such as "mother's morning out"
church programs and is not licensed by the State of North Carolina.
Dusk-To-Dawn Utility/Security Light means a luminaire that is specifically designed to operate
continuously from dusk to dawn, by means of a timer or electronic sensor, that is used as a utility, yard
or security light, and whose light output equals or exceeds 2,000 lumens.
Dwelling, single-family means a building arranged or designed to be occupied by one family.
Dwelling, two-family means a building arranged or designed to be occupied by two families
living independently of each other.
Dwelling, multifamily means any building or buildings which contain more than one residential
dwelling unit on a single lot including, but not limited to, apartment houses and condominiums . For
purposes of the open use district only, multifamily dwelling means six or more units on a single lot.
Dwelling, single-family attached means townhouses, row houses, condominiums, or group
houses for single-family dwellings, having or sharing one or more common walls or other parts of the
structure, and whose ownership may be divided into lots for individual sales.
Dwelling unit means a building, or portion thereof, providing complete and permanent living

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facilities for one family.
Easement means a grant by a property owner of a strip of land for specified purpose and use
by the public, a corporation or persons.
Family means one or more persons occupying a single dwelling unit, provided that unless all
members are related by blood or marriage, no such family shall contain over five persons, but further
provided that domestic servants employed on the premises may be housed on the premises without
being counted as a family.
Family care home means an adult care home having two to six residents. The structure of a
family care home may be no more than two stories high and none of the aged or physically disabled
persons being served there may be housed in the upper story without provision for two direct exterior
ground-level accesses to the upper story. A family care home shall be deemed a residential use of
property for zoning purposes and shall be a permissible use in all residential districts. Family care
homes shall not house residents who are dangerous to others as defined in G.S. 122C-3(11), as may
be amended.
Full Cutoff means a luminaire light distribution where zero candela intensity occurs at or above
an angle of 90° above nadir. Additionally the candela per 1,000 lamp lumens does not numerically
exceed 100 (10 percent) at or above a vertical angle of 80° above nadir. This applies to all lateral
angles around the luminaire.

\ 90'
\
80'
"--.
.

Footcandle (FC) is a quantitative unit which measures the amount of light (illumination) falling
onto a given point. One footcandle equals one lumen per square foot. For the purposes of this article,
footcandles shall be measured or calculated when the luminaires are new.
Glare means the effect produced by a light source within the visual field that is sufficiently
brighter than the level to which the eyes are adapted, to cause annoyance, discomfort, or loss of visual
performance and ability.
Gross floor area means the total floor area of all buildings in a project including the basements,
mezzanines and upper floors, exclusive of stairways and elevator shafts. It excludes separate service
facilities outside the main building such as boiler rooms and maintenance shops.
Gross residential density means the number of dwelling units proposed to be built, divided by
the area of the tract being developed.
Group home means a residential single or multifamily structure or structures in which the
residents are supervised and/or mentored but not provided medical treatment, and where the
residents are not considered a danger to others. This definition does not include summer or other
seasonal camps operated as private recreation.
Guest house and setvant quarters means an attached or separate dwelling unit used for the
residence of domestic servants or the temporary lodging of guests, not including dwelling units
for which rent or other considerations are paid by the occupants.

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Hazardous waste facility means any industrial facility that stores, handles, processes or
manufactures any material, substance or product that is considered to be a Class 1 explosive ; a
Class 2, Division 2.3 gas (gases toxic by inhalation); a Class 6 toxic material or infectious
substance; or a Class 7 radioactive substance or material, all as classified by the United States
Department of Transportation Hazard Classification System. This term shall also mean any industry
or facility that is a large quantity generator of hazardous waste as that term is defined by the North
Carolina Department of Environment and Natural Resources.
Health care facility means a residential treatment facility that houses patients on a short or
long-term basis and provides medical or psychiatric care on site. These facilities include but are not
limited to the following, as defined by the NC Division of Health Services: adult care homes, assisted
living residences, chemical dependency facilities, combination homes, health care facilities,
freestanding licensed hospice facilities, hospitals, hospital facilities, long-term care fa cilities , mu ltiunit
assisted housing with services, nursing facilities, nursing homes, nursing home facilities, psychiatric
facilities, and rehabilitation facilities.
Home occupation means an occupation conducted entirely with in a dwelling or accessory
structure and carried on by the occupants thereof, provided that: (1) the use of the dwelling unit for
the home occupation shall be clearly incidental and secondary to the use of the dwelling for
residential purposes, and such occupation shall not occupy more than 25 percent of the total floor
space of the dwelling or the entire accessory structure; and (2) there shall be no display, no outside
storage, no change in the outside appearance of the building or premises , or other visible evidence of
the conduct of such home occupation other than an unlighted sign located on the premises and not
over two square feet in area; and (3) no more than two persons not in residence on the premises
shall be employed in connection with the home occupation; and (4) no traffic shall be generated by
such home occupation in greater volumes than would normally be expected in a residential
neighborhood, and any needed parking must be off the street and other than in a required front yard;
and (5) no equipment or process shall be used in such home occupation which creates noise,
vibration, glare, fumes, odors, or electrical interference detectable to the normal senses off the lot; and
(6) in the case of electrical interference, no equipment or process shall be used wh ich creates
visual or audible interference in any radio or television receivers off the premises, or causes
fluctuations in line voltage off the premises.
I/luminance means the amount of light (luminous flux index) at a point on a surface (measu red
in footcandles).
Impervious surface means any surface that, in whole or in part, restricts or prevents the natural
absorption of water into the ground. Such surfaces may include, but are not limited to, gravel,
concrete, asphalt or other paving material , and all areas covered by the footprint of buildings or
structures.
Incinerator shall mean: (a) any enclosed device that burns material other than the classic
boiler fossil fuels, such as natural gas, coal, unadulterated wood , or fuel oil, is a principal use on any
lot or parcel, and uses controlled flame combustion and neither meets the criteria for classifications
as a boiler, sludge dryer, or carbon regeneration unit, nor is listed as an industrial furnace; or (b)
meets the definition of "infrared incinerator" or "plasma arc incinerator" or any other device meant to
burn solid, liquid, or gaseous waste material. This definition does not apply to afterburners, flares,
fume incinerators, and other similar devices used to reduce process emissions of air pollutants.
Specifically excluded from this definition and any regulation under this chapter are those
incinerators that are constructed and/or operated by or on beha lf of any federal, state, or local
governmental entity; provided, however, that this exclusion from regulation only applies to those
incinerators not operating as a hazardous waste facility.

Case 1:19-cv-00182-MR-DSC Document 1-1 Filed 06/07/19 Page 19 of 122


Individual sewer system means any septic tank, privy, or other facility serving a sing le sou rce
with a design capacity of 3,000 gallons per day or less.
Individual water system means any well, spring, stream, or other source used to su pply a
single connection.
Junk means old or scrapped copper, brass, rope, rags, batteries, paper, trash, rubber, debris,
waste, dismantled or wrecked automobiles, or parts thereof, iron, steel, and other old scrap ferrous or
nonferrous material.
Junkyard means a parcel of land on which waste material or inoperative vehicles and other
machinery are collected , stored, salvaged , or sold . This definition does not include motor vehicles
impoundment lot or tow yard .
Kennel means an establishment licensed to house dogs, cats, or other household pets and
where grooming, breeding, training , or selling of animals may be conducted .
Land disturbing activity means any use of, or operation on, the land by any person in
residential , industrial, educational, institutional, or commercial development, highway and road
construction and maintenance that results in a change in the natural cover or topography and that may
cause or contribute to sedimentation.
Landfill means a site within which is deposited solid waste material including trash,
construction debris, garbage, or industrial waste. The term "landfill" shall include a disposal facility or
part of a disposal facility where solid waste is placed in or on land and which is not a land treatment
facility, a surface impoundment, an injection well, a hazardous waste long-term storage facility, or a
surface storage facility.
Light Source refers to the element of a lighting fixture that is the point of origin of the lumens
emitted by the fixture.
Light Trespass is unwanted light spilling onto an adjacent property and/or an excessive
brightness (i.e. glare) that occurs in the normal field of vision.
Lot means a parcel of land occupied or capable of being occupied by a building or group of
buildings devoted to a common use, together with the customary accessories and open spaces
belonging to the lot. The word "lot" includes the words "plot" or "parcel."
Lot depth means the mean horizontal distance between front and rear lot lines.
Lot of record means any lot for which a plat has been recorded in the office of the Buncombe
County Register of Deeds, or described by metes and bounds, the description of which has been so
recorded.
Lumen is the quantitative unit used to identify the amount of light emitted by a light source. A
lamp is generally rated in lumens.
Luminaire (light fixture) is a complete lighting unit consisting of a lamp or lamps and ballast(s)
(when applicable) together with the parts designed to distribute the light, to position and protect the
lamps, and to connect the lamps to the power supply.
Lux is a unit of illuminance; one lux equals one lumen per square meter. One footcandle equals
10.76 lux (often rounded to 10 lux for ease of use).
Manufactured/mobile home park means any premises where three or more mobile homes are
parked for living and sleeping purposes, or any premises used or set apart for the purpose of
supplying to the public parking space for three or more mobile homes for living and sleeping purposes,

Case 1:19-cv-00182-MR-DSC Document 1-1 Filed 06/07/19 Page 20 of 122


and which include any buildings, structures, vehicles, or enclosures used or intended for use as
part of such mobile home park.
Manufactured/mobile home, residential means a structure which is transportable in one or
more sections; designed to be used as a year-round, single-family residential unit; which is built on a
permanent chassis and designed to be used with or without a permanent foundation when connected
to the required utilities; and which does not meet the standards established by the North
Carolina Residential Building Code.
Materials recovery facility means an establishment primarily engaged in (1) operating facilities
for separating and sorting recyclable materials from nonhazardous waste streams (i.e.,
garbage); and/or (2) operating facilities where commingled recyclable materials such as paper,
plastics, used beverage cans, and metals are sorted into distinct categories.
Medical clinic means a facility for examining, consulting with, and treating patients with
medical, dental, or optical problems on an out-patient basis with no overnight admission.
Mining and extraction operation means any establishment or business primarily engaged in
dressing and beneficiating of ores; the breaking , washing and grading of coal; the crushing
and breaking of stone; and the crushing, grinding, or otherwise preparing of sand , gravel, and
nonmetallic chemical and fertilizer minerals.
Modular home means a dwelling unit constructed in accordance with the standards set forth in
the North Carolina State Building Code and composed of components substantially assembled in a
manufacturing plant and transported to the building site for final assembly on a permanent
foundation. Among other possibilities, a modular home may consist of two or more sections
transported to the site in a manner similar to a manufactured home (except that the modular
home meets state building codes) or may consist of a series of panels or room sections
transported on a truck and erected or joined together on the site.
Motor sports facility means any facility, track, or course upon which racing or motor sporting
events are conducted including, but not limited to vehicles, motorcycles, all-terrain vehicles, motor
scooters, go-carts, etc.
Motor vehicles impoundment lot or tow yard means a storage place for towed motor vehicles
until they are placed back in the control of the owner or the impounding agency. This definition does
not include junkyard.
Nadir is the point directly below the luminaire.
Nonconforming use means any parcel of land, use of land, building, or structure existing at the
time of adoption of this article, or any amendment thereto, that does not conform to the use or
dimensional requirements of the district in which it is located.
Noncutoff means a luminaire light distribution where there is no candela limitation in the zone
above the light source.

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JW'

.. .·

Open space means a part or portion of the project area unoccupied and unobstructed from the
ground upward.
Parking space means an area for parking a vehicle plus the necessary access space.
Parks means any public or private land managed primarily as vegetated open space for
recreational, aesthetic, or educational use.
Permitted use means a use which is allowed in specific zoning districts and which such use
might be further regulated or restricted in applicable overlay districts.
Personal landing strip means a landing strip or heliport for personal use of the tenant or owner
of the site, not available for public use, and with no commercial operations.
Planned unit development, level II (PUDll) means more than four (4) principal buildings or
uses on a single lot or any principal building with a gross floor area of 50,000 square feet or more.
PUDlls must include only commercial and/or industrial uses such as retail trade; professional
and business offices; storage and warehousing; and manufacturi ng uses and shall not include
places of worship. Relatively small and low-impact additions to a building already greater than
50,000 square feet and located greater than fifty feet from any adjoining property may not
trigger the definition of a PUDll at the discretion of the zoning administrator.
Planned unit development, level I (PUDI) means more than four (4) principal buildings or uses
on a single lot; any principal building with a gross floor area of 25,000 square feet or more; any
residential complex of more than eight (8) units; or a subdivision of more than ten (10) lots where
building envelopes are defined, areas are set aside for open space and/or amenities, and a decrease
in minimum lot size and/or interior setbacks is desired. A PUDI may be comprised of residential uses;
a mix of residential and nonresidential uses; or the following nonresidential uses: health care facilities;
private or public utility stations and substations, pumping stations, water and sewer plants, water
storage tanks; recreation uses; schools; and vacation rental complexes and shall not include places
of worship.
Planning board means a body composed of those members organized and appointed by the
board of commissioners under the authority granted in G.S. 153A-321 and G.S. 153A-322. The
power of the planning board to perform its duties is granted in chapter 58, article 11, of this Code.
Postal and parcel delivery services means a post office or other packing and shipping facility
which does not include warehousing or bulk sorting of shipments.
Private utilities and related facilities means utility structures including, but not limited to,
pumping stations, electricity generation facilities, transformers, utility poles, transmission lines, and
pipelines that require a specific location to provide service. These facilities are considered to be
private facilities if they are accessories to the facility or development upon which they are located and

10

Case 1:19-cv-00182-MR-DSC Document 1-1 Filed 06/07/19 Page 22 of 122


do not provide service to exterior properties or customers. This definition does not include
telecommunications towers or public safety communications towers as defined by this Ordinance or
their related infrastructure. Private utilities intended to serve up to two, single-family residential units
are considered a permitted accessory use to the residential structure provided that the footprint does
not exceed 10,000 square feet.
Property line means any boundary line of a lot or parcel of real property.
Pub means an eating and drinking establishment catering primarily to the surrounding
neighborhood and having a seating capacity of not greater than 75 persons.
Public or private utilities and related facilities footprint means the cumulative area occupied by
a utility operated by a single entity. For the purposes of this article, the footprint shall include any
areas disturbed, altered from natural conditions, or made impervious during the installation of the
utility, any area occupied by equipment pertaining to the facility, and any area fenced or secured
against access to the facility, or any buffer or easement area required to surround the facility. The
footprint calculation does not apply to utilities which are contained entirely underground and which do
not include any structures as defined by this ordinance or any energy collection devices. For the
purposes of footprint calculation, any facilities owned or operated by the applicant shall be included if
said facilities lie within 1,320 feet of the proposed facility.
Public safety communications tower means any tower exceeding 20 feet in height erected for
the purpose of transmitting and relaying critical voice and data communications for public safety
personnel including but not limited to emergency services, law enforcement and fire protection
services.
Public sewer system means any sewer system owned and operated by the county, the
Metropolitan Sewerage District, Avery's Creek Sanitary District, or other sewer treatment facility
serving two or more connections, or the development of a community-type sewer system having a
design capacity of greater than 3,000 gallons per day, or any wastewater treatment system having a
discharge to surface waters when approved by the N.C. Department of Environment and Natural
Resources , Division of Water Quality.
Public utilities and related facilities means utility structures including, but not limited to,
pumping stations, electricity generation facilities , transformers, utility poles, transmission lines, and
pipelines that require a specific location to provide service. This definition does not include
telecommunications towers or public safety communications towers as defined by th is Ordinance or
their related infrastructure.
Public water system means water systems serving 15 or more residential connections or
serving 25 or more year-round residents which are classified as public water supplies by state law,
and which plans and specifications must be approved by the N.C. Department of Environment and
Natural Resources, Public Water Supply Section. Also, water supply systems serving from two to 14
connections shall be regulated by the Buncombe County Board of Health, and plans shall be
approved by the Buncombe County Health Center, Environmental Health Services.

Recreational facilities are those facilities, not otherwise categorized on the permitted use table,
utilized for one (1) or more sports or recreation activities such as, but not limited to, bowling, skating,
water sports, baseball, basketball, tennis, golf, riding, hiking, fishing or similar sports or recreational
uses.
Recreation use, nonprofit means an indoor or outdoor recreation facility operated on a
nonprofit basis, according to the laws of the state.
Recreation use, profit means an indoor or outdoor recreation facility operated on a profit basis.

11

Case 1:19-cv-00182-MR-DSC Document 1-1 Filed 06/07/19 Page 23 of 122


Residence means any building , structure or portion thereof which is designed, arranged, or
used for a residential occupancy, but shall not include a motel, hotel, rooming house, or
vacation rental.
Retail business means an establishment selling commodities and/or providing services directly
to the consumer.
Retaining wall means a wall or a cumulative system of walls or man-made soil retention
systems designed to resist lateral soil pressure and hold back, or "retain," higher level ground behind
it. Retaining walls and retaining wall systems providing a cumulative vertical relief greater than 10 feet
are subject to the requirements set forth in this article and in Chapter 26, Article VIII of the Buncombe
County Code of Ordinances. For the purposes of this article, methods of soil retention regulated shall
include, but not be limited to: cast-in-place walls , soil nailing, modular systems, h-beam systems,
boulder walls, and gabions.
Ridge means the elongated crest or series of crests at the apex or uppermost point of
intersection between two opposite slopes or sides of a mountain.
Rooming house means accommodations in which, for compensation, lodging is provided and
the owner and/or operator of the establishment maintains their residence at the site. A roomi ng house
shall be limited to no more than 1O rental units. A rooming house with mo re than 1O rental units shall
be deemed a hotel or motel for the purposes of this Ordinance.
Semi-cutoff means a luminaire light distribution where the candela per 1,000 lamp lumens does
not exceed 50 (5 percent) at or above an angle of 90° above nadir, and 200 (20 percent) at or above a
vertical angle 80° above nadir. This applies to all lateral angles around the luminaire.

\ \..
90°
~
" ' - _:

~~

Setback means a continuous strip of land, measured perpendicular from the plane of the
building or structure out to the closest property line or road right-of-way, except as otherwise provided
in the Beaverdam Zoning District.

12

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Property Boundary

I
I
I
I
I
I
I
I

~·-·-·- · -·-·- · - · - · -·-·- · -·- · -·- · -·- ·

Road

13

Case 1:19-cv-00182-MR-DSC Document 1-1 Filed 06/07/19 Page 25 of 122


Shield is a device that is attached onto or inserted into a luminaire to alter the direction of light
being emitted. A luminaire that has a shield attached or inserted is considered to be "sh ielded."
Shooting range, outdoor commercial means an improved area that is commercially operated
for the use of rifles, shotguns, pistols, silhouettes, skeet, trap, black powder, air guns, archery, or any
other similar sport shooting in an outdoor environment.
Site specific development plan means a plan of land development submitted to the county for
purposes of obtaining a zoning or land use permit or approval pursuant to division 6 of this article.
Notwithstanding the foregoing, neither a variance, a sketch plan , nor any other document that fails to
describe with reasonable certainty the type and intensity of use for a specified parcel or parcels of
property shall constitute a site specific development plan.
Slaughtering plant means an establishment primarily engaged in slaughtering animals or
poultry/small game. For purposes of the open use district, this definition includes slaughtering
plants that conduct processing of animals or poultry/small game, including dressing, packing,
freezing, canning , cooking, and/or curing of animals or poultry/small game or their carcasses. This
definition specifically excludes slaughtering and processing activities performed for personal use only.
Solid waste management facility means (1) land, personnel, and equipment in the
management of solid waste including a transfer station, landfill, or materials recovery facility.
Specifically excluded from this definition are incinerators and drop-off recycling centers; and those
solid waste management facilities that are constructed and/or operated by or on behalf of any
federal , state, or local governmental entity; provided, however, that this exclusion from regu lation
only applies to those solid waste management facilities not operating as a hazardous waste facil ity.
Street, road, or highway means a right-of-way for vehicular traffic which affords the principal
means of access to abutting properties.
Structure means that which is built or constructed . For the purposes of the dimensional
requirements set forth in this article, the following structures are exempt from the setback
requirements of this section: detached structures less than 12' in length on any given side and less
than 1O' in height, incidental to a residential use; utility poles; fences 1O' in height or less; and on-
premise signage.
Subdivision means all divisions of a tract or parcel of land into two or more lots, building sites,
or other divisions when any one or more of those divisions are created for the purpose of sale or
building development (whether immediate or future) and includes all division of land involving the
dedication of a new street or a change in existing street. This definition does not include a subdivision
of land considered to be an Alternative Path Hillside Development Subdivision.
Subdivision, alternative path hillside development is a subdivision of land as defined by and
approved under the standards of The Land Development and Subdivision Ord inance of Buncombe
County, Sec. 70-68(f).
Subdivision, conservation development is a subdivision of land as defined by and approved
under the standards of The Land Development and Subdivision Ordinance of Buncombe County, Sec.
70-69.
Telecommunications tower means any tower exceeding 20 feet in height erected for the
purpose of transmitting or receiving telephonic or radio signals over the airwaves as a commercial
service, but shall not include any structures erected solely for a noncommercial individual use such as
residential television antennas , satellite dishes, or ham radio antennas; a commercial use that is
purely incidental to other business activities of the owner; or AM radio towers.

14

Case 1:19-cv-00182-MR-DSC Document 1-1 Filed 06/07/19 Page 26 of 122


Townhome means a single-family attached dwelling unit in which each unit has its own access
to the outside, no unit is located over another unit, each unit is separated from any other unit by one or
more vertical com mon fire-resistant walls, and where each individual unit is located on an individual lot
of record.
Transfer station means a permanent structure with mechanical equipment used for
the collection or compaction of solid waste prior to the transportation of solid waste for final disposa l.
Travel trailer means a vehicle primarily designed as a temporary or seasonal dwe lling for
travel, recreation, or vacation uses, including park model homes, travel trailers , and similar
transportable structures.
Travel trailer park means a parcel of land designed and equipped to accommodate three (3)
or more travel trailers.
Utility pole means a structure owned by a public utility that is designed for and used primarily
to carry lines, cables, or wires for telephone, cable television, or electricity, or to provide lighting .
Vacation rental means no more than two single family homes with a combined total of no more
than 9,000 square feet gross floor area which are rented for two (2) days or more to tourists,
vacationers, or similar transients.
Vacation rental complex means two single family homes or one single family home with a
combined total of more 9,000 square feet of gross floor area or a group of more than two separate
vacation rental units adjacent to each other and held in common ownership which are rented out for
two (2) days or more to tourists, vacationers, or similar transients. A vacation rental complex shall
include no more than 10 separate vacation rental units. A development consisting of more than 10
vacation rental units shall be considered a hotel or motel for purposes of this ordinance except with in
the Open Use District (OU) where it shall be considered a vacation rental complex and shall be
required to obtain a conditional use permit.
Vehicular Canopy is a roofed , open, drive-through structure designed to provide temporary
shelter for vehicles and their occupants while making use of a business' services.
Yard means a space on the same lot with a principal building open, unoccupied, and
unobstructed by buildings or structures from ground to sky except where encroachments and
accessory buildings are expressly permitted.
Yard, front means an open, unoccupied space on the same lot with a principal building,
extending the full width of the lot and situated between the street or property line and the front line
of the building, projected to the side lines of the lot.

Yard, rear means an open, unoccupied space on the same lot with a principal building ,
extending the full width of the lot and situated between the rear line of the lot and the rear line of the
building projected to the sidelines of the lot.
Yard sale means a retail sale on residential property not to be conducted for more than two
weeks per year.
Yard, side means an open, unoccupied space on the same lot with a principal building,
situated between the building and the side lot line and extending from the rear line of the front yard to
the front line of the rear yard.
Zoning administrator means an official of the county charged with enforcing and administering
this article.
Zoning map means the official zoning map of Buncombe County.

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Zoning vested right means a right pursuant to G.S. 153A-344.1 to undertake and complete the
development and use of property under the terms and conditions of an approved site specific
development plan.
Sec. 78-582. Violations.
Whenever, by the provisions of this article, the performance of any act is prohibited ,
or whenever any regulation , dimension, or limitation is imposed on the use of any land, or on the
erection or alterations or the use or change of use of a structure, or the uses within such structure, a
failure to comply with such provisions of this article shall constitute a separate violation and a separate
offense.

Sec. 78-583. Penalties for violations.


(a) No penalty under this section shall be issued prior to issui ng a Notice of Violation except for
civil penalties issued in accordance with Sec. 78-583(d). The Notice of Violation shall be
served by certified or registered mail to the person's last known address, or by personal
service or by posting the violation conspicuously on the property.

(b) Any owner or occupant who has received a notice of violation may appeal the decision of
the Zoning Administrator in accordance with Sec. 78-623.

(c) Any person violating this Article of this Chapter shall be subject to the remed ies as set forth
in Code Sec. 1-7.

(d) The County may assess a$ 100.00 per day civil penalty for each day that the property is in
violation of this Article. The civil penalty shall be effective upon receipt of the Notice of
Violation but shall be waived if the Zoning Administrator determines the person remedied
the violation within thirty (30) days of receipt of the Notice of Violation .

(e) If the person issued the civil penalty fails to pay the penalty, the County may seek to
recover the civil penalty by filing a civil action in the nature of a debt and/or refer the debt to
the State Debt Setoff program for collection .

(f) The Zoning Administrator may reduce the civil penalty upon a determination that the person
responsible for the violation acted in good faith and cooperated with the Planning
Department to remedy the violation .

(g) The County may enforce this Article by using one or any combination of the forego ing
remedies. Nothing in this section shall limit any other remedy provided by law or this
Chapter.

Sec. 78-584. Remedies for violations of article.


(a) If a building or structure is erected , constructed, reconstructed, altered , repaired,
converted, moved or maintained, or any building, structure, or land is used in violation of
this article, the zoning administrator, in addition to other remedies, may institute any
appropriate action or proceedings to prevent the unlawful erection , construction,
reconstruction, alteration, repair, conversion, moving, maintenance or use; to restrain,
correct or abate the violation; to prevent occupancy of the building , structure or land ; or to

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prevent any illegal act, conduct of business or use in or about the premises.

(b) The only activities that may take place outside the areas of disturbance documented on an
approved site plan are:

1. fire fuel reduction (fire fuel reduction may include the installation of firebreaks in the
area immediately adjacent to structures and the removal of underbrush)
2. control of invasive species listed in the invasive species table in this section. Other
species may be approved by the Planning Department when demonstrated to be
non-native invasive species.)
3. removal of dead or diseased specimens
4 . maintenance of the area to ensure adequate screening and buffering (i.e. selective
thinning of saplings)
5. maintenance of the area to ensure public health and safety and
6. Non-motorized passive recreation (such as running, walking, biking trails,
gardening, primitive camping areas, and similar low impact outdoor activities). The
location, type, and materials which will be used to construct passive recreation
facilities shall be submitted on the preliminary plans and shall be approved by the
Planning Department. The development of passive recreation areas with in the
natural state area shall not exceed 5% of the total acreage of the tract.

When removing vegetation for the purposes of exceptions (1) through (5) above,
vegetation can only be removed through the use of hand-held devices (i.e. chainsaws,
pole pruners , hedge trimmers, weed eaters, etc.) . Bulk application of chemical
herbicides is prohibited . The removal of vegetation shall be conducted in such a manner
as to preserve ground cover (through a vegetated cover or through the use of a
substrate that will prevent sediment run-off from the site). Removal of healthy tree
specimens greater than 3" diameter at breast height (DBH) is prohibited except when
installing passive recreation facilities.

INVASIVE SPECIES

Scientific name Common name

Ai/an thus altissima (Mill.) Swingle Tree of Heaven

Albizia julibrissin Durz. .Mimosa

Alliaria petiolata (Bieb.) Cavara & Grande Garlic-mustard

Alternanthera philoxeroides (Mart.) Griseb. Alligatorweed

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Celastrus orbiculatus Thunb. Asian bittersweet

Elaeagnus angustifolia L. Russian olive

Elaeagnus umbellata Thunb. Autumn olive

Hedera helix L. .English ivy

Hydrilla verticillata (L.f.) Royle Hydrilla

Lespedeza bicolor Bicolor lespedeza

Lespedeza cuneata (Dum.-Cours.) G. Don Sericea lespedeza

Ligustrum sinense Lour. Chinese privet

Lonicera fragrantissima Lindi. & Paxton Fragrant honeysuckle

Lonicera japonica Th unb. Japanese honeysuckle

Microstegium vimineum (Trin.) A. Camus Japanese stilt-grass

Murdannia keisak (Hassk.) Hand.-Mazz. Asian spiderwort

Myriophyllum aquaticum (Veil.) Verde. Parrotfeather

Paulownia tomentosa (Thunb.} Sieb.&Zucc. ex Steud. Pri ncess tree

Phragmites australis (Cav.) Trin. ssp. australis Common reed

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Polygonum cuspidatum Seib. & Zucc. Japanese knotweed

Pueraria montana (Lour.) Merr. Ku dzu

Rosa multiflora Thunb. .Mu ltifl ora rose

Salvinia molesta Mitchell Aquarium water-moss

Vitex rotundifolia L.f. Beach v itex

Wisteria sinensis (Sims) DC Chinese wisteria

(c) Any land disturbance percentage in amounts that exceed those specified in this article shall
be replanted according to the following re-vegetation plan .

Re-vegetation plan.

ELEVATION UNDER 4,000 FEET

East/North Facing South/West Facing

Overstory Species

Eastern White Pine Black Locust

Yellow Poplar Virginia Pine

Chestnut Oak Shortleaf Pine

Northern Red Oak Southern Red Oak

Black Walnut White Oak

Native Ash Chestnut Oak

Sycamore Hickory

Beech Red Maple

Yellow Buckeye Sycamore

Red Maple

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Sugar Maple
Understory Species

Sourwood Native Blueberry

Dogwood Eastern Redbud

Mountain Laurel American Holly

Native Rhododendron Box Elder

Sumac Sassafras

American Hornbeam Dog Hobble

Persimmon

ELEVATION 4,000 FEET AND OVER

East/North Facing South/West Facing

Overstory Species

Sugar Maple Pitch Pine

Black Birch Chestnut Oak

Yellow Birch Northern Red Oak

Beech Black Cherry

Red Spruce Eastern White Pine

Black Cherry

Eastern White Pine

Northern Red Oak

Understory Species

Native Rhododendron Hawthorn

Mountain Maple Striped Maple

Native Blueberry Serviceberry

Native Crabapple

American Mountain Ash

All planted species shall be on a ten-foot by ten-foot spacing. A mix of one overstory and one
understory species from the table above, appropriate for site elevation and aspect, shall be
planted on each 100 square feet.

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Pines shall be three to four feet in height, with a minimum stem diameter at the ground of one
inch. The root ball shall be 14-18 inches.

Hardwoods shall be 14-18 inches in height, with a minimum stem diameter at the ground of one-
half to three-fourths-inches. These trees can be bare-rooted at planting.

All overstory and understory plants shall be limed and slow-release fertilizer sta kes shall be
inserted around each plant.

All plants shall be mulched with organic mulch to control weeds. Mulch shall extend two feet
around each plant.

(d) Any impervious surface percentage in amounts that exceed those specified in this article
shall be removed.

Sec. 78-585. Abrogation or greater restrictions.

When provisions of this article require a greater width or size of yards or courts, or require a
lower height of a building or fewer number stories, or require a greater percentage of lot to be left
unoccupied, or impose other higher standards than are required in any other statute or local
ordinance or regulation , provisions of this article shall govern. When the provisions of any other
statute or local ordinance or regulation require a greater width or size of yards or courts , or req uire a
lower height of a building or a fewer number of stories, or require a greater percentage of a lot to be
left unoccupied, or impose other higher standards than are required by the provisions made by th is
article, the provisions of that statute or local ordinance or regulation shall govern.

Secs. 78-586--78-595. Reserved.

DIVISION 2. ADMINISTRATION AND ENFORCEMENT

Sec. 78-596. Enforcement generally; duties of enforcing officers and agencies.


All questions arising in connection with the enforcement of this article sha ll be presented first
to the zoning administrator who shall be responsible for the day-to-day admin istration of this article.
The board of adjustment shall have the authority to rule on matters of interpretation of this article,
consider appeals from decisions of the zoning administrator, issue cond itional use permits, and grant
variances. Any appeal from a decision of the board of adjustment shall be to the courts as provided
by law. The duties of the board of commissioners in connection with this article shall not include the
hearing and passing upon of disputed questions that may arise in connection with the enfo rcement
thereof, but the procedure for determining such questions shall be as set forth in this article. The
duties of the board of commissioners in connection with this article shall be the duty of consideri ng
and passing upon the initial ordinance from which this article is derived and any proposed
amendments or repeal of this article as provided by law, after receiving recommendations from the
planning board.

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Sec. 78-597. Zoning administrator; duties.
The board of commissioners shall appoint a zoning administrator. It shall be the duty of the
duly appointed zoning administrator to administer and enforce the provisions of this article.
If the zoning administrator finds that any of the provisions of this article are being violated , he
shall notify in writing the person responsible for such violation , indicating the nature of the violation
and ordering the action necessary to correct it. He shall order discontinuance of the illegal use of
land, buildings or structures; removal of illegal buildings or structures, or of add itions, alterations or
structural changes thereto; discontinuance of any illegal work being done; or shall take any action
authorized by this article to ensure compliance with or to prevent violation of its provisions. If a ruling
of the zoning administrator is questioned, the aggrieved party may appeal such ruling to the board of
adjustment.

Sec. 78-598. Certificate of zoning compliance.


(a) Required. No building or other structures shall be erected, moved , added to or structu rally
altered, nor shall any building permit be issued, nor shall any change in the use of any building or
land be made until a certificate of zoning compliance shall have been issued by the zoning
administrator. All buildings, structures, and accessory uses shall meet the dimensional requirements,
use requirements, and any other requirements, that are noted in th is article. No certificati on of
zoning compliance shall be issued except in conformity with the provisions of this article.
(b) Applications; contents. Applications for certificates of zon ing compliance may be
accompanied by plans showing the actual dimensions of the plot to be bu ilt upon, and the location on
the lot of the building or structure proposed to be erected or· altered , and such other information as
may be necessary to provide for the enforcement of the provisions of this article.

Sec. 78-599. Building permit required.


Upon receiving a certificate of zoning compliance, a building permit shall be obtained from the
Buncombe County Permits and Inspections Department for the construction or alteration of any
building, structure or mobile home, pursuant to the section 10-66 et seq . herein.

Sec. 78-600. Certificate of occupancy required.


In conjunction with the final building inspection, the zoning administrator shall certify that all
requirements of this article have been met. The applicant shall call the zoning administrator and
apply for such certification coincident with the final building inspection or within ten days following
completion . A certificate of occupancy, either for the whole or part of the building , shall be issued
within 30 days after the erection or structural alterations of such building , or part, shall have been
completed in conformity with the provisions of this article. A certificate of occupancy shall not be
issued unless the proposed use of a building or land conforms to the applicable provisions of this
article. If the certificate of occupancy is denied, the zoning administrator shall state in writing the
reasons for refusal, and the applicant shall be notified of the refusal. A record of all certificates shall
be kept on file in the office of the zoning administrator, and copies shall be furnished on request to
any person having a proprietary or tenancy interest in the building or land invo lved.

Sec. 78-601. Construction progress.

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If no building permit or certificate of occupancy is obtained within two (2) years of the date
of the issuance of the zoning compliance certificate, the permit becomes invalid.

Sec. 78-602. Prevention of violation by legal procedure.


In case any building is erected, constructed, reconstructed, altered, repaired, converted or
maintained, or any building or land is used in violation of this article, the zoning administrator or any
other appropriate county authority, or any person who would be damaged by such violation, in
addition to other remedies, may institute an action for injunction, or mandamus, or other appropriate
action or proceedings to prevent such violation.

Sec. 78-603. Appeal from decision of the zoning administrator.


All questions arising in connection with the enforcement of this article shall be presented first
to the zoning administrator, and such questions shall be presented to the board of adjustment only
on appeal from a ruling of the zoning administrator. Any order, requirement, decision, or
determination made by the zoning administrator may be appealed to the board of adjustment
pursuant to the procedure found in section 78-623.

Secs. 78-604--78-615. Reserved.

DIVISION 3. BOARD OF ADJUSTMENT

Sec. 78-616. Establishment; composition; appointment of members.


(a) Establishment and composition. A board of adjustment is hereby established. Such board
of adjustment shall consist of seven members and shall be appointed by the board of commissioners .
(b) Term of office. Each member shall serve a term of three years. Vacancies shall be
appointed by the board of commissioners to fulfill an unexpired term .

Sec. 78-617. Selection of alternate members.


The board of commissioners shall also appoint alternate members who may be called in by
the chairperson of the board of adjustment to serve in the absence of a regular board of adjustment
member. Such alternate members shall also serve a three-year term. Such alternate members while
attending any regular or special meeting of the board of adjustment and serving in the absence of
any regular member shall have and exercise all powers and duties of such regular member so absent.

Sec. 78-618. Rules of conduct.


(a) Members of the board of adjustment may be removed by the board of commissioners for
cause , including violation of the rules stated in this section.

(b) Faithful attendance at meetings of the board of adjustment and conscientious performance
of the duties required of members of the board of adjustment shall be considered a prerequisite of

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continuing membership on the board of adjustment.
(c) A member of the board of adjustment shall not participate in or vote on any quasi-judicial
matter in a manner that would violate affected persons' constitutional rights to an impartial decision
maker. Impermissible conflicts include, but are not limited to, a member having a fixed opinion prior to
hearing the matter that is not susceptible to change; undisclosed ex parte communications ; a close
familial, business, or other associational relationship with an affected person ; or a financial interest in
the outcome of the matter. If an objection is raised to a member's participation and that member does
not recuse himself or herself, the remaining members shall by majority vote rule on the objection.
(d) No board of adjustment member shall discuss any case with any parties thereto prior to
the public hearing on that case; provided however, that a member may receive and/or seek
information pertaining to the case from the zoning administrator or any other member of the board of
adjustment or its clerk prior to the hearing.
(e) Members of the board of adjustment shall not express individual opinions on the proper
judgment of any case prior to its determination on that case.
(f) No board of adjustment member shall accept any gift, whether in the form of a service, a
loan, a thing of value, or a promise, from any person , firm, or corporation that, in the member's
knowledge, is interested directly or indirectly in any manner whatsoever in business dealings with the
county.
(g) No board of adjustment member shall accept any gift, favor, or thing of value that may tend
to influence that board member in the discharge of duties.
(h) No board of adjustment member shall grant any improper favor, service, or thing of value
in the discharge of duties.

Sec. 78-619. General proceedings.


The board of adjustment shall annually elect a chairperson and a vice-cha irperson from among
its members. The chairperson, or in his absence the vice-chairperson, may administer oaths and
request the attendance of witnesses in accordance with G.S. 153A-345. The board of adjustment shall
keep minutes of its proceedings, showing the vote of each member upon every question, or if absent or
failing to vote, indicating such fact, and also keep records of its examinations and other official actions.
The Board of Adjustment shall make reference to the Comprehensive Land Use Plan, specifically the
section titled "Directing Growth and Development I Topographic Constraints" in their formal decisions.

Sec. 78-620. Meetings.


(a) Monthly; special; notice of meetings; according to state law. The board of adjustment shall
hold regular monthly meetings at a specified time and place. Special meetings of the board of
adjustment may be called at any time by the chairperson or by request of three or more members of
the board of adjustment. At least 48 hours' written notice of the time and place of meeting shall be
given, by the chairperson, to each member of the board of adjustment. All board of adjustment
meetings are to be held in accordance with G.S. 143-318.9 et seq., commonly referred to as the Open
Meeting Law.

(b) Cancellation of meetings. Whenever there are no appeals, applications for conditional
uses or variances, or other business for the board of adjustment, or whenever so many regular and

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alternate members notify the zoning administrator of their inability to attend that a quorum will not be
available, the chairperson may dispense with a meeting by giving written or oral notice to all members.
(c) Quorum. A quorum shall consist of four members of the board of adjustment, but the board
of adjustment shall not pass upon an application for a variance when there are less than six members
present.
(d) Voting. All regular members may vote on any issue unless they have disqualified
themselves for one or more of the reasons listed in section 78-618. The required vote to decide
appeals and applications shall be as provided in subsection 78-623(d). In all other matters, the vote of
a majority of the members present and voting shall decide issues before the board of adjustment. For
purposes of this article, vacant positions on the board and members who are disqualified from voting
on a quasi-judicial matter shall not be considered "members of the board" for calculation of the
requisite supermajority if there are no qualified alternates available to take the place of such members.
(e) Subpoenas. The board of adjustment may subpoena witnesses and compel the production
of evidence. If a person fails or refuses to obey a subpoena issued pursuant to this article, the board of
adjustment may apply to the general court of justice for an order requiring that its order be obeyed,
and the court shall have jurisdiction to issue these orders after notice to all proper parties. No
testimony of any witness before the board of adjustment pursuant to a subpoena issued in exercise of
the power conferred by this article may be used against the witness in the trial of any civil or criminal
action other than a prosecution for false swearing committed on the examination. Any person, while
under oath during a proceeding before the board of adjustment, who willfully swears falsely is guilty of
a Class 1 misdemeanor.
(f) Application . The applicant must file their application for a hearing with the zoning
administrator, who shall act as clerk to the board of adjustment in receiving this notice. All applications
shall be submitted at least thirty (30) days prior to the date the application is to be heard. All
applications shall be made on the form specified for that purpose, and all information required on the
form shall be complete before an application shall be considered as having been filed.

Sec. 78-621. Powers and duties.


The powers and duties of the board of adjustment shall be as follows:
(1) Interpretation. The board of adjustment shall interpret zoning maps and pass upon
disputed questions of lot lines or district boundary lines and any other questions of
interpretation that may arise in the administration of this article.
(2) Administrative review. The board of adjustment sha ll hear and decide appeals from any
order, requirement, decision or determination made by the zoning admin istrator in the
enforcement of this article, as provided in section 78-603 as well as appeals and requests
for variances pursuant to any Chapter or Article of the Code of Ordinances for Buncombe
County indicating that such appeals or requests for variances shall be heard by the board
of adjustment. Such appeals and requests for variances shall be conducted in
accordance with Sec. 78-623 , Appeals and applications, below. Further, in all cases in
which requests for variances are heard by the Board of Adjustment references to this
article or chapter shall be deemed to be references to such Chapter or Article from which
the appeal or request for variance is made, as appropriate, and references to appeals
under this article or chapter shall be deemed to be references to requests for variances,
as appropriate. The concurring vote of four-fifths of the members of the board of
adjustment shall be necessary to grant any variance. A majority vote of the members of
the board of adjustment is necessary to reverse any order, requirement, decision, or

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determination of the zoning administrator, or to decide in favor of the applicant any matter
which it is required to pass under this article or to effect any variation in this article.

(3) Conditional uses. The board of adjustment shall grant in particular cases and subject to
appropriate conditions and safeguards, permits for conditional uses as authorized in
division 6 of this article set forth as conditional uses under the various use districts. The
board of adjustment shall follow the requirements and procedures outlined in division 6
prior to issuance of a conditional use permit.

(4) Variances. When unnecessary hardships would result from carrying out the strict letter of
the zoning ordinance, the board of adjustment shall vary any of the provisions of the
zoning ordinance upon a showing of all of the following :

a. Unnecessary hardship would result from the strict application of the ordinance. It shall
not be necessary to demonstrate that, in the absence of the variance , no reasonable
use can be made of the property.

b. The hardship results from conditions that are peculiar to the property, such as location,
size, or topography. Hardships resulting from personal circumstances, as well as
hardships resulting from conditions that are common to the neighborhood or the
general public, may not be the basis for granting a variance.

c. The hardship did not result from actions taken by the applicant or the property owner.
The act of purchasing property with knowledge that circumstances exist that may justify
the granting of a variance shall not be regarded as a self-created hardship.

d. The requested variance is consistent with the spirit, purpose, and intent of the
ordinance, such that public safety is secured , and substantial justice is achieved.

No change in permitted uses may be authorized by variance. Appropriate conditions may


be imposed on any variance, provided that the conditions are reasonably related to the
variance.

In granting a variance, the board of adjustment shall make findings that the requirements
of this article have been met. The board of adjustment shall make a finding, and written
notice of the.decision shall be prepared as prescribed in subsection 78-623(d). In granting
any variance, the board of adjustment may prescribe appropriate conditions and
safeguards in conformity with this article. Violation of such conditions and safeguards,
when made a part of the terms under which the variance is granted, shall be deemed a
violation of this article and punishable as described under section 78-583.

Any other ordinance that regulates land use or development may provide for variances
consistent with the provisions of this subsection.

A nonconforming use of neighboring land, structures or buildings in the same district, or


permitted uses of land, structures or buildings in other districts will not be considered
grounds for the issuance of a variance.

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Sec. 78-622. Statutory vested rights provisions.
(a) Purpose. The purpose of this section is to implement the provisions of G.S. 153A-344.1
pursuant to which a statutory zoning vested right is established upon the approval of a site-specific
development plan.
(b) Establishment of a zoning vested right.
(1) A zoning vested right shall be deemed established upon the valid approval, or
conditiona l approval, by the board of adjustment of a site specific development plan,
following notice and public hearing.
(2) The board of adjustment may approve a site specific development plan upon such
terms and conditions as may reasonably be necessary to protect the public health,
safety, and welfare.
(3) Notwithstanding subsections (1) and (2) of this section, approval of a site specific
development plan with the condition that a variance be obtained shall not confer a
zoning vested right unless and until the necessary variance is obtained.

(4) A site specific development plan shall be deemed approved upon the effective date of
the board of adjustment's action relating thereto.
(5) The establishment of a zoning vested right shall not preclude the application of
overlay zoning that imposes additional requirements but does not affect the allowable
type or intensity of use, or ordinances or regulations that are genera l in nature and
are applicable to all property subject to land use regulations by the county, including,
but not limited to, building, fire, plumbing, electrical , and mechanical codes.
Otherwise applicable new or amended regulations shall become effective with respect
to property that is subject to a site specific development plan upon the expiration or
termination of the vested right in accordance with subsection (e) below.
(6) A zoning vested right is not a personal right, but shall attach to and run with the
applicable property. After approval of a site specific development plan, all successors
to the original landowner shall be entitled to exercise such right while applicable.
(c) Approval procedures and approval authority.
(1) Except as otherwise provided in this section , an application for site specific
development plan approval sha ll be processed in accordance with the
procedures established by ordinance and shall be considered by the boa rd of
adjustment for the specific type of zon ing or land use permit or approval for which
application is made.
(2) Notwithstanding the provisions of subsection (1) above, if 'the authority to issue a
particular zoning or land use permit or approval has been delegated by ordinance to a
board, committee or administrative official other than the board of commissioners,
board of adjustment or other planning agency designated to perform any or all of the
duties of a board of adjustment, in order to obtain a zoning vested right, the applicant
must request in writing at the time of application that the application be considered
and acted on by the approval authority, following notice and a public hearing as
provided in G.S. 153A-323 and Chapter 160A, Article 19.
(3) In order for a zoning vested right to be established upon approval of a site specific
development plan, the applicant must indicate at the time of application on a form to
be provided by the county, that a zoning vested right is being sought.

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(4) Each map, plat, site plan or other document evidencing a site specific development
plan shall contain the following notation: "Approval of this plan establishes a zoning
vested right under G.S. 153A-344.1. Unless terminated at an earlier date, the zoning
vested right shall be valid until (date)."
(5) Following approval or conditional approval of a site specific development plan,
nothing in this article shall exempt such a plan from subsequent reviews and
approvals to ensure compliance with the terms and conditions of the orig inal approval,
provided that such reviews and approvals are not inconsistent with the original
approval.
(6) Nothing in this article shall prohibit the revocation of the original approval or other
remedies for failure to comply with applicable terms and conditions of the approval or
this article.
(d) Duration.
(1) A zoning vested right that has been vested as provided in this section shall remain
vested for a period of two years unless specifically and unambiguously provided
otherwise pursuant to subsection (2) below. This vesting shall not be extended by any
amendments or modifications to a site specific development plan unless expressly
provided by the board of adjustment at the time the amendment or modification is
approved.
(2) Notwithstanding the provisions in subsection (1) above, the board of adjustment may
provide that rights shall be vested for a period exceeding two years but not exceeding
five years where warranted in light of all relevant circumstances, including , but not
limited to, the size of the development, the level of investment, the need for or
desirability of the development, economic cycles, and market conditions. These
determinations shall be in the sound discretion of the board of adjustment at the time
the site specific development plan is approved.
(3) Upon issuance of a building permit, the expiration provisions of G .S. 153A-358 and
the revocation provisions of G.S. 153A-362 shall apply, except that a building permit
shall not expire or be revoked because of the runn ing of time while a zoning vested
right under this section is outstanding.
(e) Termination. A zoning right that has been vested as provided in th is article shall terminate:
(1) At the end of the applicable vesting period with respect to buildings and uses for which
no valid building permit applications have been filed;

(2) With the written consent of the affected landowner;

(3) Upon findings by the county board of commissioners , by ordinance after notice and a
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;

(4) Upon payment to the affected landowner of compensation for all costs, expenses, and
other losses incurred by the landowner, including, 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

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at the legal rate until paid. Compensation shall not include any diminution in the value
of the property which is caused by such action;

(5) Upon findings by the county board of commissioners, by ordinance after notice and a
hearing, that the landowner or his representative intentionally supplied inaccurate
information or made material misrepresentations which made a difference in
the approval by the board of adjustment of the site specific development plan; or

(6) 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 board of adjustment 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.
(f) Limitations. Nothing in this article is intended or shall be deemed to create any vested right
other than those established pursuant to G.S. 153A-344.1.
(g) Repealer. In the event that G.S. 153A-344.1 is repealed, this section shall be deemed
repealed and the provisions hereof no longer effective.

Sec. 78-623. Appeals and applications.


(a) Appeals and Hearings. The board of adjustment shall hear and decide all appeals from
any order, requirement, decision, or determination made by the zoning administrator as well as
appeals and requests for variances pursuant to any Chapter or Article of the Code of Ord inances for
Buncombe County indicating that such appeals or requests for variances shall be heard by the board
of adjustment, in which cases the requests for variances shall be treated as and may be referred to as
appeals as set forth herein. In deciding appeals , it may hear both those based upon an allegedly
improper or erroneous interpretation of this article and those based upon alleged hardship resulting
from strict interpretation of this article.
(b) Procedure for Filing Appeals. All statute of limitations and procedures for filing an appeal
to the Board of Adjustment are set forth in N.C. Gen. Stat. §153A-345.1 or as amended.
(c) Hearings. All board of adjustment hearings shall be conducted in accordance with N.C.
Gen. Stat. §153A-345.1 or as amended.
(d) Decisions. All board of adjustment decisions shall be made in accordance with N.C . Gen.
Stat. § 153A-345.1 or as amended.
(e) Filing of Decisions. Decisions of the board of adjustment are effective upon filing the
written decision with the Zoning Administrator or his/her designee following delivery of such decision
by personal delivery, electronic mail, or by first-class mail to the applicant, property owner, and to any
person who has submitted a written request for a copy. The person required to provide notice of the
decision shall certify that proper notice has been made.

(f) Expiration of Approval. Unless otherwise specified , an order or decision of the board of
adjustment granting a conditional use permit or variance shall expire if a building permit or certificate
of occupancy for such use is not obtained within two years from the date of the signed order.

Sec. 78-624. Appeals from decision of board of adjustment.


Appeals from the board of adjustment may be taken to the courts pu rsuant to G.S. 153A-345.

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Secs. 78-625--78-635. Reserved.

DIVISION 4. ZONING DISTRICTS AND MAPS

Sec. 78-636. Use districts; enumeration.


For the purpose of this article, the zoning districts of Buncom be County as delineated on the
official zoning map of Buncombe County, adopted by the board of commissioners, shall be divided
into the following designated use districts:

R-LD Low-Density Residential District


R-1 Residential District
R-2 Residential District
R-3 Residential District
cs Commercial Service District
EMP Employment District
PS Public Service District
CR Conference Center/Resort District
NS Neighborhood Service District
BDM Beaverdam Low-Density Residential District
OU Open Use District
Al Airport Industry District

Sec. 78-637. Establishment of district boundaries.


The boundaries of these districts are hereby established as shown on the Official Zoning Map
of Buncombe County, North Carolina.

Sec. 78-638. Establishment of zoning map.


A zoning map entitled the "Official Zoning Map of Buncombe County, North Carolina," clearly
setting forth all approved use districts and their respective boundaries, is hereby made a part of this
article and shall be maintained in the office of the zoning administrator of the county. This map shall
be available for inspection by interested persons during normal business hours of the zoning
administrator. It shall be the duty of the zoning administrator to maintain the map and post any
changes thereto as they may be made.

Sec. 78-639. Rules governing district boundaries.


Where uncertainty exists with respect to the boundaries of any of the districts, as shown on
the zoning map, the following shall apply:

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(1) Boundaries indicated as approximately following the centerlines of streets, highways,
alleys, streams, rivers, other bodies of water, and/or other topographic features, shall be
construed to follow such lines.
(2) Boundaries indicated as approximately following platted lot lines shall be construed as
following such lot lines.
(3) Where district boundaries are so indicated that they are approximately parallel to the
centerlines of streets, highways or railroads, or rights-of-way of same, such district
boundaries shall be construed as being parallel thereto and at such distance there from as
indicated on the zoning map. If no distance is given, such dimension shall be determined
by the use of the scale shown on the zoning map.

(4) Where a district boundary line divides a lot of single ownership, the district requirements
for the least restricted portion of such lot shall be deemed to apply to the who le thereof,
provided that such extensions shall not include any part of such lot more than 35 feet
beyond the district boundary line.

(5) Where physical features existing on the ground are at variance with those shown on the
zoning map or in other circumstances not covered by subsections (1) through (4) of this
section , the board of adjustment shall interpret the district boundaries.

Sec. 78-640. Statement of district intent.


(a) Low-Density Residential District (R-LD) . The R-LD Low-Density Residential District is
primarily intended to provide locations for low-density residential and related-type development in
areas where topographic or other constraints preclude intense urban development. These areas are
not likely to have public water and sewer services available, and the minimum required lot area will be
one acre unless additional land area is required for adeq uate sewage disposa l. These are
environmentally sensitive areas that are characterized by one or more of the following conditions:
steep slopes, fragile soils , or flooding.
(b) Residential District (R-1). The R-1 Residential District is primarily intended to provide
locations for single-family and two-family residential development and supporting recreational,
community service , and educational uses in areas where public water and sewer services are
available or will likely be provided in the future. This district is further intended to protect existing
subdivisions from encroachment of incompatible land uses, and this district does not allow
manufactured home parks.
(c) Residential District (R-2). The R-2 Residential District is prima rily intended to provide
locations for residential development and supporting recreational, community service and educational
uses in areas where public water and sewer services are available or will likely be provided in the
future. These areas will usually be adjacent to R-1 Residential Districts, will provide suitable areas for
residential subdivisions requiring public water and sewer services , and in order to help maintain the
present character of R-1 districts, will not allow manufactured home parks.
(d) Residential District (R-3). The R-3 Residential District is primarily intended to provide
locations for a variety of residential development depending upon the ava ilability of public water and
sewer services. Some areas within the R-3 Residential District will have no public water and sewer
services available and will thus be suitable primarily for single-family residential units on individual lots
and mobile homes on individual lots. Other areas within the district will have pu blic water and/or sewer
service available and will thus be suitable for higher density uses such as multifamily residential units,
planned unit developments, and mobile home parks . The R-3 district also provides for various

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recreational, community service and educational uses that will complement the residential
development.
(e) Neighborhood Service District (NS). The NS Neighborhood Service District is primarily
intended to provide suitable locations for limited, neighborhood-oriented, commercial, business, and
service activities in close proxim ity to major residential neighborhoods. The NS Neighborhood Service
District is designed to allow for a mix of residential, commercial, business and service uses in limited
areas along major traffic arteries and at key intersections leading to residential neighborhoods in order
to provide such service to the residents of that particular neighborhood. As such, the type of uses
allowed and the standards established for development in this NS neighborhood service district
should be compatible with the residential character of the area and should neither add to traffic
congestion; nor cause obnoxious noise, dust, odors, fire hazards, or lighting objectionable to
surrounding residences; nor should they visually detract from the overall appearance of the
neighborhood. The NS Neighborhood Service District should currently have water and sewer services
or be expected to have such services in the foreseeable future.
(f) Commercial Service District (CS). The CS Commercia l Service District is primarily
intended to provide suitable locations for clustered commercial development to encourage the
concentration of commercial activity in those specified areas with access to major traffic arteries,
to discourage strip commercial development, and to allow for suitable noncommercial land uses. Such
locations should currently have water and sewer services or be expected to have such services
available in the future. This CS Commercial Service District may be applied to suitable areas adjacent
to existing commercial concentration to allow for their expansion.
(g) Employment District (EMP). The EMP Employment District is primarily intended to provide
appropriately located sites for employment concentrations primarily for office uses, industrial uses,
storage and warehousing , and wholesale trade . Such locations should currently have public water and
sewer services available or be expected to have these services in the future. Only those
manufacturing uses will be allowed which meet all local, state and federal environmental standards,
and do not involve obnoxious noise, vibrations, smoke, gas, fumes, odor, dust, fire hazards, or other
objectionable conditions which would be detrimental to the health, safety, and general welfare of the
community. These areas will also include sites suitable for supportive activities such as community
service, commercial service, and residential uses.
(h) Public Service District (PS). The PS Public Service District is intended to be a district that
includes, but is not limited to, governmentally owned properties; schools and large college properties;
recreation parks and facilities; emergency services; and community clubs. Such uses should
currently have public water and sewer services available or have a provision for internal supply of
appropriate utilities.
(i) Conference Center/Resort District (CR). The CR Conference Center/Resort District is
intended to be a district that includes, but is not limited to large tourist-related facilities, summer/day
camp properties, and conference centers held in single ownersh ip or held collectively by related
entities. Facilities within this district may include housing, hotels, retail shops, religious or secular
retreats, and associated accessory uses. Such uses should currently have public water and sewer
services available or have a provision for internal supply of appropriate utilities.
U) Beaverdam Low-Density Residential District (BDM). It is the purpose and intent of the
Beaverdam Low-Density Residential District to protect existing development in Beaverdam Valley from
incompatible use; to provide for low-density residential and agricultural uses; and, to set certain
standards for such uses based upon an analysis of existing and future conditions of topography,
access, public water and sewer utilities, and community facilities, as well as health, safety and general
welfare considerations.

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(k) Open Use District (OU). The OU Open Use District is established as a district in which all
uses are allowed by right, except for certain uses that are regulated as conditional uses so as to
ensure that neighborhood impact is mitigated. Additionally, those uses which are specific to the
Airport Industry District (Al) are excluded from the OU Open Use District. The neighborhood impact
from conditional uses will be mitigated through the use of minimum specific site standards combined
with general standards which provide the flexibility to impose a higher level of specific site
standards dependent upon the degree of neighborhood impact. No zon ing permit shall be requi red for
permitted uses in the OU Open Use District.

(I) Airport Industry District (Al). The Al Airport Industry District is esta blished as a district that
includes but is not limited to airport facilities, aviation related uses, and related aerospace uses. The
Al Airport Industry District will also support office uses, industrial uses, storage and warehousing, and
wholesale trade either directly related to or dependent upon the aviation industry. Such locations
should currently have public water and sewer services available or be expected to have these services
in the future . The Al Airport Industry District shall exist only in areas below 2,500' in elevation.

Sec. 78-641. Permitted uses.


(a) Permitted use table. Uses are permitted in the various zoning districts pursuant to Table 1.

Table 1 - Permitted Use Table


P = Permitted
C = Allowed as Conditional Use
SR= Permitted with Special Requirements
Uses Blank Space= Not Permitted
Districts
R-LD R-1 R-2 R-3 NS cs EMP PS CR Al BDM OU

Single-family
residential dwelling, p p p p p p p p p p p
including modular

Two residential
dwelling units
p p p p p p p p p p
(attached or
detached)

Community oriented
p p p p p p p p
developments

Multifamily residential
dwelling units (no
more than eight units p p p p p p p p
in no more than four
buildings)

HUD-labeled
manufactured homes- p p p p
Residential

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Table 1 - Permitted Use Table
P =Permitted
C = Allowed as Conditional Use
SR= Permitted with Special Requirements
Uses Blank Space= Not Permitted
Districts
R-LD R-1 R-2 R-3 NS cs EMP PS CR Al BDM OU

Manufactured home
parks (8 units or p p
fewer)

Manufactured home
parks (more than 8 c p
units)

Planned unit
developments, level I
c c c c c c c c c

Planned unit
developments, level II
c c c c c c

Subdivisions p p p p p p p p p p p p

Subdivisions,
alternative path p p p p p p p p p p
hillside development

Subdivisions,
conservation p p p p p p p p p p
development

Accessory buildings p p p p p p p p p p p p

Adult Entertainment
Establishments
c c c

Airports c
Amusement Parks c c c c c
Animal hospitals and p
p p p p
veterinarian clinics

Asphalt Plants c c
Aviation-related
p
services and facilities

Banks and other p p p p p p p


financial institutions

Bed and breakfast SR SR p p p p p p p


inns (1 O occupants or

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Table 1 - Permitted Use Table
P =Perm itted
C = Allowed as Conditional Use
SR= Permitted with Special Requirements
Uses Blank Space= Not Permitted
Districts
R-LD R-1 R-2 R-3 NS cs EMP PS CR Al BDM OU

less)

Bed and breakfast


inns (more than 1O c c p p p p p p p
occupants)

Cargo/freight
terminals, operations p p p p
and activities

Cemetery p p p p p p p

Chip Mills c
Places of worship p p p p p p p p p p p

Clubs or lodges p p p p p p p p

Concrete Plants c c
Day nursery and
private kindergarten SR SR SR SR p p p p p p p
(up to 8 studenls)

Day nursery and


private kindergarten
(more than 8
c c p p p p p p p

students)

Family care home p p p p p p p p

Funeral homes p p p p p

Government p p p p p p p p p
protective services

Greenhouses ,
commercial (nursery, p p p p p p
p
lawn and garden
producls)

Group homes c p p p p p p p

Hazardous Waste
Facilities
c

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Table 1 - Permitted Use Table
P = Permitted
C =Allowed as Conditional Use
SR= Permitted with Special Requirements
Uses Blank Space= Not Permitted
Districts
R-LD R-1 R-2 R-3 NS cs EMP PS CR Al BDM OU

Health care facilities c c p p p p p

Home occupations p p p p p p p p p p p

Hotels and motels p p p p p p

Incinerators c
Junkyards c c
Kennels c p p p p p

Laundry and dry p p p p p p p


cleaning services

Libraries p p p p p p p p

Manufacturing and p p p p
processing operations

Medical Clinics c p p p p p p p

Mining and Extraction


Operations
c c

Motor Sport Facilities c


Motor vehicles
maintenance and c p p p p p p
repair

Motor vehicles
impoundment lot or SR SR SR SR
tow yard

Motor vehicles sales p p p p


and rental

Motor vehicles service


stations (fueling p p p p p p p
stations)

National Guard and p p p p p


Reserve Armories

p p p p p p
Nightclubs, bars and

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Table 1 - Permitted Use Table
P = Permitted
C = Allowed as Conditional Use
SR= Permitted with Special Requirements
Uses Blank Space= Not Permitted
Districts
R-LD R-1 R-2 R-3 NS cs EMP PS CR Al BDM OU

pubs

Personal Landing
c c c c c c c
Strips

Physical fitness
centers
c p p p p p p p

Postal and parcel p p p p p p p


delivery services

Printing and p p p p
lithography

Professional and
business offices and p p p p p p p
services

Private utility stations


and substations,
pumping stations ,
water and sewer p p p p p p p p p p p p
plants, water storage
tanks (less than 2
acres In total footprint)

Private utility stations


and substations,
pumping stations,
water and sewer c c c
plants, water storage
c c c c c c c c c
tanks (2 acres or
greater In total
footprint)

Public utility stations


and substations,
pumping stations,
water and sewer c c c c p p p p p p c p
plants, water storage
tanks (less than 2
acres In total footprint)

Public utility stations


and substations, c c c c c c c c c c c c
pumping stations,
water and sewer

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Table 1 - Permitted Use Table
P = Permitted
C = Allowed as Conditional Use
SR = Permitted with Special Requirements
Uses Blank Space = Not Permitted
Districts
R-LD R-1 R-2 R-3 NS cs EMP PS CR Al BDM OU

plants, water storage


tanks (2 acres or
greater in total
footprint)

Radio, TV and
telecommunications c c c c c c p .P
towers

Recreation use, p p p p p p p
p p p p p
governmental

Recreation use, non-


governmental
c c c c c p p p p p c p

Repair services
(electrical and p p p p p
appliances)

Restaurants, eating
establishments and p p p p p p p
cafes

Retail trade,
commercial services,
sales and rental of
merchandise and p p p c p p p
equipment (inside
building with no
outside sales storage)

Retail trade,
commercial services,
sales and rental of p p p p p
merchandise and
equipment

Rooming house c p p p p p p p

Schools, public and


private
c c c p p p p

Schools--Vocalional,
business and special p p p p p p
schools

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Table 1 - Permitted Use Table
P =Permitted
C = Allowed as Conditional Use
SR= Permitted with Special Requirements
Uses Blank Space= Not Permitted
Districts
R-LD R-1 R-2 R-3 NS cs EMP PS CR Al BDM OU

Shooting Ranges -
Outdoor Commercial
c c

Slaughtering Plants c
Solid W aste Facilities
- Landfills, Transfer
Stations, Materials
c c c c
Recovery

Storage and p p p p p p
warehousing

Theaters p p p p

Travel trailers (no


more than 180 days p p p p
per calendar year)

Travel trailer parks c SR SR SR

Vacation rentals p p p p p p p p p p p

Vacation rental
complex
c c c c c c c c

W holesale sales p p c p p

(b) Uses governed by other ordinances. The following uses may be allowed but also will be
governed by the specified ordinances adopted by the board of comm issioners:
(1) Adult entertainment establishments: Subject to compliance with section 14-121 et
seq. of this Code, as may be amended;
(2) Communication towers: Subject to compliance with chapter 72 of this Code, as may
be amended;
(3) Junkyards: Subject to compliance with chapter 26, article Ill of this Code, as may be
amended;
(4) Manufactured home parks: Subject to compliance with chapter 46, article Ill, of this
Code, as may be amended;

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(5) Off-premise signs: Subject to compliance with chapter 78, article V, of this Code, as
may be amended.
(6) Subdivisions: Subject to compliance with chapter 70 of this Code, as may be
amended.

Sec. 78 -642. Dimensional requirements.


The dimensional requirements for structures and land in the various zoning districts shall be
in accordance with Table 2.

Table 2. Dimensional Requirements


Density2,4 Minimum Yard Setback Requirements in Feet 3,4

Minimum
Minimum Land Area
Lot Size Per Dwelling Maximum Front Side Rear Maximum
Districts Unit Number Yard Yard Yard
1,2,4,5 Front Side Rear Height
(multiple Dwelling Yard Yard
Yard
(Square Feet) units on a Units Per Public Publ ic Public (Feet)
single lot) Acre Sewer Sewer Sewer

(square feet)

2
R-LD 43, 560 No more than 2
(no more than 2 10 10 20 10 10 20 35
Residential units per lot
units per lot)

30,000
(no public
sewer)

12, 000 (public


sewer no public 10
R-1 water) No m ore than 2 (no more than 2 10 7 15 20 10 20 35
Residential units per lot units per lot)
8,000
(public water
and sewer)

30,000
(no public Minimum lot
sewer) size shown in
column two plus
10, 000 (public 0 for first
R-2 sewer no public additional unit 12 10 7 15 20 10 20 35
Residential water)
Plus: 3,600 for
6,000 each additional
(public water unit
and sewer)
R-3 Same as R-2 12 10 7 15 20 10 20 35
Residential Same as R-2
30,000
(no public Minimum lot
sewer) s ize shown in
NS
column two plus 15 20 10 20 35
Neighborhood 12 10 7
10, 000 (public 0 for first
Service sewer no public additional unit
water)
Plus: 3,600 for

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Table 2. Dimensional Requirements
Density2,4 Minimum Yard Setback Requirements in Feet 3,4

Minimum
Minimum Land Area
Lot Size Per Dwelling Maximum Front Side Rear Maximum
Districts Unit Number Yard Yard Yard
1.2,4,6 Front Side Rear Height
(multiple Dwelling
Yard Yard Yard
(Square Feet) units on a Units Per Public Public Public (Feet)
single lot) Acre Sewer Sewer Sewer

(square feet)

5,000 each additional


(public water unit
and sewer
cs
Commercial Same as NS Same as NS 12 10 10 10 10 10 10 50
Service
EMP
Same as NS Same as NS 12 20 10 20 20 10 20 90
Em lo ment

30,000
(no public Minimum lot 50 (plus 1ft
sewer) size shown in additional for
column two plus each
CR 12,000 (public 0 for first additional 5
Conference sewer no public additional unit 12 20 10 20 20 10 20 feet of
Center/Resort water) setback from
Plus: 3,500 for all property
8,000 each additional lines up to
(public water unit 1OOft total).
and sewer)

PS Public
Service Same as NS Same as NS 12 20 10 20 20 10 20 50

Al Airport
Same as NS NA NA 20 10 20 20 10 20 50
lndust
See See
BDM See Footnote 6 and Footnote 6 and See See
Footnote 6 and 8 8 Footnote 15 25 Footnote 15 25 35
Beaverdam 8 No more than 1 No more than 1 7 and 8 7 and 8
unit r lot unit er lot
OU
No dimensional requirements except as applied to conditional uses.

Footnote 1--The minimum land area for lots not served by public wate r and/or sewer shall be subject to approval by the
county health department to ensure the proper operation of septic tanks and wells. In no case shall minimum lot areas be less
than those specified in this table.

Footnote 2--The minimum land area shall be calculated based on that portion of the lot which is under control of and
deeded to the property owner, exclusive of road rights-of-way.

Footnote 3-All above ground portions of the structure, including but not limited to decks, stairs, overhangs which
extend 24 inches or greater outside of the footprint of the structure, and other attached heated or unheated spaces must meet
the dimensional requirements as set forth in this Chapter. Any structure abutting two or more highways, roads, or streets shall
maintain minimum "front yard" setbacks on any side of the structure which abuts a street, road, or highway in accordance with
the provisions of the district in which the property is situated. The location of the primary entrance of the structure, as
determined by the Zoning Administrator, shall be considered the front, and shall also maintain minimum "front yard" setbacks.

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Footnote 4--The Minimum Yard Setback Requirements for interior lots and Minimum Lot Size Requirements for all lots
may be reduced and Density may be increased from that listed in Table 2 above through the approval of an Alternative Path
Hillside Development Subdivision, a Conservation Development Subdivision, or a Community Oriented Development.

Footnote 5--The Minimum Lot Size Requirements listed in Table 2 above shall not apply to lots created for the
provision of infrastructure and/or utilities only; cemetery lots or burial plots; or lots to be permanently dedicated as open space
or common area.

Footnotes 6--8: Applicable to Beaverdam Low-Density Residential District (BDM) Only

Footnote 6--Beaverdam Only Development standards:

% Natural lot Minimum Maxi mum Disturbed Maximum


Slope Frontage lot Size Impervious
(Feet) * (Acres) Cover (Acres)
If lot is < 0. 75 Acres: 80% of
lot
0-9.99 100 0.5 If lot is 0.75 - 1 Acres: 75% of 0.375
w ith public lot
water and
sewer
If lot is >1 Acre: 0.75 acres
0-9.99
no public water 100 1.1 0.75 Acres 0.375
and sewer
10-14.99
w ith or w ithout 100 1.1 0. 75 Acres 0.375
pu blic utilities
15-19.99 100 1.5 0.75 Acres 0.375
w ith or without
public utilities
20-24.99 150 2 0. 75 Acres 0.375
w ith or without
public utilities
25-29.99 150 2 0.75 Acres 0.375
with or without
publ ic utilities
30-34.99 175 2.5 0.75 Acres 0.375
w ith or without
public utilities
35-39.99 175 3 0.75 Acres 0.375
w ith or without
pu blic utilities
40+ 200 5 0.75 Acres 0.375
w ith or without
public utilities
* Minimum lot frontage shall be 75 feet where adjoining a cul-de-sac.

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Footnote 7--Beaverdam Only

Minimum Yard Setback Requirements


% Natural Front Yard
Side Yard Rear Yard
Slope From Edge of Road
(Feet) (Feet)
(Feet)
0-39.99 35 15 25
40+ 15 15 25

Footnote 8--Beaverdam Only

a. The natural slope is calculated using the following formula:

8% = 0.0023 x I x L
A

Where:

S = Average natural slope of parcel in percent

I = Contour interval of map in feet, with said intervals to be five feet or less

L =Total length of the contour lines within the parcel in feet

A= Area of the parcel in acres

0.0023 = Constant which converts square feet into acres

b. In addition, applicants may submit an alternate method of slope calculation for consideration.
These methods may include, but are not limited to, the following methods: weighted average, slope
mapping, other field based techniques, etc.

Sec. 78-643. Blue Ridge Parkway Overlay District.


(a) Purpose. Realizing the importance of the Blue Ridge Parkway to the economy of
Asheville, Buncombe County, and western North Carolina, the Blue Ridge Parkway Overlay District is
created to protect and preserve the unique features of this asset to the city, the county, and the region.
The standards established in this district will protect the scenic quality of the Blue Ridge Parkway and
reduce encroachment on its rural setting.
(b) Applicability. The provisions set forth in this section for the Blue Ridge Parkway Overlay
District shall apply to all properties within 1,320 feet of the centerline of the Blue Ridge Parkway
located within Buncombe County's zoning jurisdiction. Both privately and publicly owned property
shall be subject to the requirements set forth herein.

(c) Development standards.

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(1) Setback requirements.
a. Principal buildings. Principal buildings and structures to be located adjacent to the
Blue Ridge Parkway shall have a minimum setback of 50 feet from the boundary
of property owned by the United States government and designated as the Blue
Ridge Parkway if the build ings and structures are visible from the Blue Ridge
Parkway roadway.
b. Accessory buildings. Accessory buildings and structures to be located adjacent to
the Blue Ridge Parkway shall have a minimum setback of 30 feet from the
boundary of property owned by the United States government and designated as
the Blue Ridge Parkway if the buildings and structures are visible from the Blue
Ridge Parkway roadway.

(2) Building heights. No building or structure shall be constructed with a height in


excess of 40 feet within 1,000 feet of the centerline of the Blue Ridge Parkway, if visible
from the centerline of the Blue Ridge Parkway roadway.
(3) Screening standards. The following screening regulations shall be required within the
Blue Ridge Parkway Overlay District for all new structures and any modification to an
existing structure exceeding 50 percent of the appraised value of the structure, if the
buildings and structures are visible from the Blue Ridge Parkway roadway, as viewed from
the closest point on the roadway perpendicular to the proposed structure.
The surfaces of the structure which are visible and oriented to the Blue Ridge Parkway
must be screened by one overstory species for each 15 linear feet and one understory
species for each 1 O linear feet of the structure. See Sec. 78-584 (c) for allowed overstory
and understory species and required size at planting . No single species shall comprise
more than 50 percent of the overstory or understory species planted. Overstory species
shall be planted no less than 20 feet apart and no more than 40 feet apart. Understory
species shall be planted no less than ten (10) feet apart and no more than 25 feet apart.
Overstory and understory species shall not be planted in a row, shall not be evenly
spaced, and shall be positioned no more than 100 feet from the structure to be screened.
Existing trees within 100 feet of the structure to be screened which are left intact and that
appear in good health can be credited toward the screening requirement. Existing
overstory species may only receive credit for the overstory requirement and existing
understory species may only receive credit for the understory requirement. The following
credit system will be observed:

Tree Dimensions Credits


2.5" to 4" DBH (minimum 8' tall) 1 tree
4" to 8" DBH (minimum 15' tall) 1.5 trees
8" or greater DBH (minimum 20' tall) 2 trees

Trees to be credited shall be marked using flagging tape prior to site disturbance in order
to ensure their health throughout site development.
(d) Notice of proposed development. The planning department shall assure that the National
Park Service is notified and given an opportunity to make recommendations concerning major
subdivisions, rezonings, conditional uses, and variances proposed within the Blue Ridge Parkway
Overlay District.

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Sec. 78-644. Steep Slope/High Elevation Overlay District

(a) Purpose. The Steep Slope/High Elevation Overlay District is established in recognition that
the development of land in steep, mountainous areas involves special considerations and
requires unique development standards. This section is intended to limit the intensity of
development, preserve the viewshed and protect the natural resources of Buncombe County's
mountains and hillsides at elevations of 2,500 feet above sea level and higher, consistent with
the recommendations of the 1998 Buncombe County Land Use Plan .

(b) Applicability. This section shall apply to the portion of Buncombe County at elevations of
2,500 feet above sea level and higher and having a natural slope of 35 percent or greater
as specifically identified and delineated on the zoning map entitled "The Official Zoning
Map of Buncombe County, North Carolina."

(c) Permitted uses. Uses are permitted in the High Elevation/Steep Slope Overlay District
pursuant to the following table. All uses not listed are not allowed.

(d) Conditional uses. All conditional uses shall be administered in accordance with Division VI
of this chapter.

Steep Slope/High Elevation Overlay Permitted Use Table


P =Permitted
C =Allowed as Conditional Use
Uses Blank Space= Not Permitted
Districts

R-LD R-1 R-2 R-3 NS cs EMP PS CR BDM OU

Single-family
residential dwelling, p p p p p p p p p p p
including modular

Two residential
dwelling units p p p p p p p p p p
(attached or
detached)

HUD-labeled
manufactured homes- p p p p
Residential

Subdivisions p p p p p p p p p p p

Subdivisions,
alternative path p p p p p p p p p p
hillside development

Subdivisions,
conservation p p p p p p p p p p
development

Accessory buildings p p p p p p p p p p p

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Steep Slope/High Elevation Overlay Permitted Use Table
P = Permitted
C = Allowed as Conditional Use
Uses Blank Space= Not Permitted
Districts

R-LD R-1 R-2 R-3 NS cs EMP PS CR BDM OU

Bed and breakfast


inns (1 O occupants or c c p p p p p p p
less)

Bed and breakfast


inns (more than 10 c c c c c c c c c
occupants)

Cemetery p p p p p p p

Places of worship p p p p p p p p p p p

Clubs or lodges,
gross floor area less c c c c c c c
than 5,000 sq. ft.

Day nursery and


private kindergarten c c c c c c c c c c
(up to 8 students)

Family care home p p p p p p p p

Government p p p p p p p p
protective services

Group homes c p p p p p p p

Home occupations p p p p p p p p p p p

Health care facilities c c c c c c c


Libraries c c c
Medical Clinics c c c c c c c
Mining and Extraction
Operations
c c
National Guard and p p p p
Reserve Armories

Professional and
business offices and
services, gross floor p p p p p p
area less than 5,000
sq. ft.

Private utility stations


and substations,
pumping stations, c
water and sewer
c c c c c c c c c c
plants, water storage
tanks

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Steep Slope/High Elevation Overlay Permitted Use Table
P = Permitted
C = Allowed as Conditional Use
Uses Blank Space= Not Permitted
Districts

R-LD R-1 R-2 R-3 NS cs EMP PS CR BDM OU

Public utility stations


and substations,
pumping stations, c
water and sewer
c c c c c c c c c c
plants, water storage
tanks

Radio, lV and
telecommunications c c c c c c c
towers

Recreation facilities,
g overnmental, indoor, c
gross floor area less
c c c c p p p p p p
than 5,000 sq . ft.

Recreation facilities,
governmental, indoor, c
gross floor area 5,000
c c c c c
sq. ft. or more

Recreation facilities,
governmental, p p p p p p p p p p p
outdoor

Recreation facilities,
non-governmental, c c c c c c c c c c c
outdoor

Recreation facilities,
non-governmental,
indoor, gross floor c c c c c c c c
area less than 5,000
sq. ft.

Repair services, gross


floor area less than p p p p
5,000 sq. ft. (electrical
and appliances)

Restaurants, eating
establishments and p p p p p p
cafl!s, gross floor area
less than 5,000 sq. ft.

Retail trade,
commercial services,
sales and rental of p p p c p p
merchandise and
equipment, gross floor
area less than 5,000

47

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Steep Slope/High Elevation Overlay Permitted Use Table
P =Permitted
C = Allowed as Conditional Use
Uses Blank Space= Not Permitted
Districts

R-LD R-1 R-2 R-3 NS cs EMP PS CR BDM OU


sq. ft. (inside building
with no outside sales
storage)

Schools, public and


private c c c c c c c

Schools--Vocational,
business and special c c c c c
schools

Travel trailers (no


more than 180 days p p p
per calendar year)

Travel trailer parks c c c

Vacation rentals p p p p p p p p p p p

Vacation rental
complex; less than 11 c c c c c c c c
units

(e) Development standards.

(1) Lot size standards. Any new lot created with greater than ten (10) percent of the
area in the Steep Slope/High Elevation Overlay District after the effective date of
this section shall be a minimum of 1.5 acres. This minimum lot size may be
reduced through the approval of an Alternative Path Hillside Development
Subdivision or a Conservation Development Subdivision.

(2) Density standards. No more than two (2) dwelling units or two (2) principal
buildings or structures per lot of record shall be allowed in the Steep Slope/High
Elevation Overlay District.

(3) Height standards . The maximum building height in the Steep Slope/High Elevation

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Overlay District shall be 35 feet.

(4) Disturbed and Impervious standards.

(a) The maximum gross site area disturbance allowed in the Steep Slope/High
Elevation Overlay District for any single lot, excluding disturbance for
installation of individual septic systems, shall be :
• for lots less than 2.0 acres shall be 0.3 acres
• for lots 2.0 acres and larger shall be 15 percent

(b) The maximum gross site area impervious surface allowed in the Steep
Slope/High Elevation Overlay District for any single lot shall be:
• for lots less than 2.0 acres shall be 0.16 acres
• for lots 2.0 acres and larger shall be 8 percent

These limits shall apply to individual lot improvements, including drives, utilities,
and stormwater controls but shall not apply to installation of individual septic
systems. When communal infrastructure, including but not limited to roadways,
shared drives, public utilities, public facilities and stormwater controls, is installed
in accordance with an approved minor or major subdivision plan, the disturbed
and impervious area shall be regulated by the Land Development and
Subdivision Ordinance and not by this article. When communal infrastructure is
installed to serve lots in a division of land which is exempt from the definition of a
subdivision pursuant to Sec. 70-5 of the Land Development and Subdivision
Ordinance and results in more than three (3) lots, the maximum area of the tota l
tract to be developed for the purposes of communal infrastructure installation
shall be 15 percent disturbed area and ten (10) percent impervious area.

Expansions to structures existing at the time this article was adopted must meet
the gross site area disturbed and impervious limitations, however the disturbed
and impervious area of the existing development is not required to be included in
the disturbed and impervious area calculations.

(5) Screening standards. The following screening regulations shall be required within
the Steep Slope/High Elevation Overlay District for all new structures and any
modification to an existing structure exceeding 50 percent of the appra ised value of
the structure.

The surfaces of the structure which are oriented to the downhill sections of the lot or
the downhill sections of the adjacent topography (downhill sections are defined as
areas of the property which drop 25 feet or more in elevation within 100 feet of the
structure) must be screened at a ratio of one tree of 1.5 inch diameter measured 6
inches above the root ball for every 200 square feet of planar surface. Planar
surface is defined as the combined exterior surface area of all vertical surfaces
within a single face of the structure. Trees planted to achieve the required ratio
must be planted no greater than 50 feet from the furthest extending portion of the
structure (measured perpendicularly). Trees must be of varying, native species, as
defined by the Natural Resource Conservation Service of the United States
Department of Agriculture, and no single species shall comprise more than 50

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percent of the trees planted. Trees shall be spaced no less than 10 feet but no
greater than 30 feet apart.

Existing trees within the area of allowed disturbance which are left intact and that
appear in good health can be credited toward the required ratio. The following
credit system will be observed:

Tree Dimensions Credits

2.5" to 4" DBH (minimum 8' tall) 1 tree

4" to 6" DBH (minimum 15' tall) 1.5 trees

6" to 1O" DBH (minimum 20' tall) 2 trees

1O" to 16" DBH (minimum 25' tall) 2.5 trees

16" or greater (minimum 30' tall) 3 trees

Trees to be credited shall be marked using flagg ing tape prior to site disturbance
in order to ensure their health throughout site development.

(f) Engineering standards for certain slopes. Consultation with a geotechnical engineer shall
be required for development in areas of a tract within the Steep Slope/High Elevation
Overlay District in excess of 35 percent natural slope and for all areas designated as High
Hazard or Moderate Hazard on the Buncombe County Slope Stability Index Map prepared
by the North Carolina Geological Survey, and an investigation for colluvial deposits shall
be made. Recommendations of the geotechnical engineer shall be submitted with the
application for review. Prior to final approval , a report by the geotechnical engineer shall
be required certifying that recommendations were followed during construction.

Global stability analysis shall be performed for building sites on a 35 percent or greater
slope or in an area designated as High Hazard or Moderate Hazard on the Buncombe
County Slope Stability Index Map prepared by the North Carolina Geological Survey.

Sec. 78-645. Protected Ridge Overlay District


(a) Purpose. The Protected Ridge Overlay District is established in recognition that the
development of land in steep, mountainous areas involves special considerations and requires
unique development standards. This section is intended to limit the density of development,
preserve the viewshed and protect the natural resources of Buncombe County's protected
mountain ridges, consistent with the recommendations of the 1998 Buncombe County Land Use

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Plan and supplemental to the provisions of the Mountain Ridge Protection Act of 1983. Further,
in accordance with North Carolina General Statutes § 153A-342, this Protected Ridge Overlay
District provides for additional requirements on properties within one or more underlying general
districts related to the erection, construction, reconstruction , alteration, repair, or use of
buildings, or structures within the Protected Ridge Overlay District in addition to the general
underlying zoning regulations including, but not limited to , height, number of stories and size of
buildings and other structures.

(b) Applicability. This section shall apply to all Buncombe County mountain "ridges" whose
elevation is at least 3,000 feet and whose elevation is 500 or more feet above the elevation
of an adjacent valley floor and including 500 foot buffers, measured horizontally from the
center line of the ridge as specifically identified and delineated on the zoning ma p entitled
"The Official Zoning Map of Buncombe County, North Carolina."

(c) Permitted uses. Uses are permitted in the Protected Ridge Overlay District pursuant to the
following table. All uses not listed are not allowed.

(d) Conditional uses. All conditional uses shall be administered in accordance with Division VI
of this chapter.

Protected Ridge Overlay Permitted Use Table

P = Permitted
C =Allowed as Conditional Use
Uses Blank Space= Not Permitted
Districts

R-LD R-1 R-2 R-3 NS cs EMP PS CR BDM OU


Single-family
residential dwelling, p p p p p p p p p p p
including modular

Two residential
dwelling units p p p p p p p p p p
(attached or
detached)

HUD-labeled
manufactured homes- p p p p
Residential

Subdivisions p p p p p p p p p p p

Accessory buildings p p p p p p p p p p p

Cemetery p p p p p p p

Places of worship p p p p p p p p p p p

Family care home p p p p p p p p

Government p p p p p p p p
protective services

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Protected Ridge Overlay Permitted Use Table

P = Permitted
C = Allowed as Conditional Use
Uses Blank Space= Not Permitted
Districts

R-LD R-1 R-2 R-3 NS cs EMP PS CR BDM OU


Home occupations p p p p p p p p p p p

Private utility stations


and substations,
pumping stations,
water and sewer
c c c c c c c c c c c
plants, water storage
tanks

Public utility stations


and substations,
pumping stations ,
water and sewer c c c c c c c c c c c
plants, water storage
tanks

Recreational facilities,
governmental, p p p p p p p p p p p
outdoor

Vacation rentals p p p p p p p p p p p

(e) Development standards.

(1) Lot size standards. Any new lot created with greater than ten (10) percent of
the area in the Protected Ridge Overlay District after the effective date of this
section shall be a minimum of two (2) acres.

(2) Density standards. No more than two (2) dwelling units or two (2) principal
buildings or structures shall be allowed on a single lot of record in the
Protected Ridge Overlay District.

(3) Height standards. The maximum building height in the Protected Ridge
Overlay District shall be 25 feet when the structure is 50 or fewer vertical feet
from the crest of the ridge. The maximum building height in the Protected
Ridge Overlay District shall be 35 feet w hen the structure is more than 50
vertical feet from the crest of the ridge. The vertical distance between the
structure and the crest shall be the difference between the elevation (above
sea level) of the highest ground level at the structu re foundation and the
lowest elevation of the crest of the ridge.

(4) Building width standards. Building w idth in the Protected Ridge Overlay
District shal l not exceed 30 percent of the lot width as measured at the
face(s) of the building oriented to the downhill section of the lot or adjacent
topography.

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(5) Lot width standards. Minimum lot width in the Protected Ridge Overlay
District, as measured parallel to the crest of the ridge, shall be 200 feet.

(6) Disturbed and Impervious standards.

(a) The maximum gross site area disturban ce allowed in the Protected Ridge
Overlay District for any single lot, excluding disturbance for installation of
individual septic systems, shall be:
• for lots less than 2.0 acres shall be 0.3 acres
• for lots 2.0 acres and larger shall be 15%

(b) The maxi mum gross site area impervious surface allowed in the
Protected Ridge Overlay District for any single lot shall be:
• for lots less than 2.0 acres shall be 0.16 acres
• for lots 2.0 acres and larger shall be 8%

These limits shall apply to individual lot improvements, including drives,


utilities, and stormwater controls but shall not apply to installation of
individual septic systems. W hen communal infrastructure, including but not
limited to roadways, shared drives, public utilities, public facilities and
stormwater controls, is installed in accordan ce with an approved minor or
major subdivision plan, the disturbed and impervious area shall be regulated
by the Land Development and Subdivision Ordinance and not by this article.
When communal infrastructure is installed to serve lots in a division of land
which is exempt from the definition of a subdivision pursuant to Sec. 70-5 of
the Land Development and Subdivision Ordinance and resu lts in more than
three (3) lots, the maximum area of the total tract to be developed for the
purposes of communal infrastructure installation shall be 15 percent
disturbed area and ten (10) percent impervious area.

Expansions to structures existing at the time this article was adopted must
meet the gross site area disturbed and impervious limitations, however the
disturbed and impervious area of the existing development is not required to
be included in the disturbed and impervious area calculations.

(7) Screening standards. The following screening regulations shall be required


within the Protected Ridge Overlay District for all new structures and any
modification to an existing structure exceeding 50 percent of the appraised
value of the structure.

The surfaces of the structure which are oriented to the downhill sections of
the lot or the downhill sections of the adjacent topography (downhill sections
are defined as areas of the property which drop 25 feet or more in elevation
within 100 feet of the structure) must be screened at a ratio of one tree of 1.5
inch diameter measured 6 inches above the root ball for every 200 square
feet of planar surface. Planar surface is defined as the combined exterior
surface area of all vertical surfaces within a single face of the structure.
Trees planted to achieve the required ratio must be planted no greater than

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50 feet from the furthest extending portion of the structure (measured
perpendicularly) . Trees must be of varying , native species, as defined by the
Natural Resource Conservation Service of the United States Department of
Agriculture, and no single species shall comprise more than 50 percent of the
trees planted. Trees shall be spaced no less than 1O feet but no greater than
30 feet apart.

Existing trees within the area of allowed disturbance which are left intact and
that appear in good health can be credited toward the required ratio. The
following credit system will be observed:

Tree Dimensions Credits

2.5" to 4" DBH (minimum 8' tall) 1 tree

4" to 6" DBH (minimum 15' tall) 1.5 trees

6" to 1O" DBH (minimum 20' tall) 2 trees

1 O" to 16" DBH (minimum 25' tall) 2.5 trees

16" or greater (minimum 30' tall) 3 trees

Trees to be credited shall be marked using flagging tape prior to site


disturbance in order to ensure their health through out site development.

(f) Engineering standards for cerlain slopes. Consultation with a geotechnical engineer shall
be required for development in areas of a tract within the Protected Ridge Overlay District
in excess of 35 percent natural slope and for all areas designated as High Hazard or
Moderate Hazard on the Buncombe County Slope Stabi lity Index Map prepared by the
North Carolina Geological Survey, and an investigation for colluvial deposits shall be
made. Recommendations of the geotechnical engineer shall be submitted with the
application for review. Prior to final approval, a report by the geotechnical engineer shall
be required certifying that recommendations were followed during construction.

Global stability analysis shall be performed for building sites on a 35 percent or greater
slope or in an area designated as High Hazard or Moderate Hazard on the Buncombe
County Slope Stability Index Map prepared by the North Carolina Geological Survey.

Secs. 78-646--78-649. Reserved.

Sec. 78-650. Community Oriented Development

(a) Purpose. The purpose of this section is to facilitate the creation of affordable and workforce
housing and to afford substantial advantages for greater flexibility and improved marketability

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through the benefits of efficiency which permit flexibility in building siting and mixtures of housing
types. Residential densities are calculated on a project basis, thus allowing the clustering of
buildings in order to create useful open spaces and preserve natural site features .

(b) Applicability. Developments considered under this section must:

(1) successfully demonstrate that a minimum of ten percent of the proposed units will be made
available at affordable rates or that a minimum of twenty percent of the proposed units will
be made available at workforce rates. No variance(s) from this requirement may be
requested or obtained under Sec. 78-621 (4) or Sec. 78-623;

(2) be served by public water and sewerage systems;

(3) contain a development entrance which intersects a paved road, and the site of said
intersection is located no more than 2,640 drivable feet, as measured along the road
centerline, from an intersection with a transportation corridor. A transportation corridor, for
the purposes of this section, is a publicly-maintained road which is designated as an
interstate, arterial, or collector by NCDOT. The length of interstate on-ramps does not count
towards the maximum drivable distance. The Blue Ridge Parkway shall not be considered a
transportation corridor.

(c) Development Standards

(1) Density requirements. There are no density requirements for nonresidential uses as long
as the proposed project does not violate the intent of the district in which it is located.
Density may exceed that permitted in the district in which the development is located (as
shown in section 78-642) by the provision of sustainable development elements and/or the
provision of community amenities. If the community oriented development lies in more
than one district, the number of allowable dwelling units must be separately calculated for
each portion of the commun ity oriented development that is in a separate district, and
must then be combined to determine the number of dwelling units allowable in the enti re
community oriented development. Density may be increased up to 250 percent of that
allowed in Sec. 78-642 , according to the following table in section 78-650(c)(1 )(a). No
variance(s) may be requested or obtained under Sec. 78-621 (4) or Sec. 78-623 in order to
increase density within a community oriented development other than through strict
adherence to the requirements set forth in this subsection and the community oriented
development density table.

(a) Community Oriented Development Density Table. Density may be increased up to 250
percent of that allowed in section 78-642, according to the following table. In order to
obtain any bonus in density, points must be obtained from at least two of the three
principal categories within the table (Community, Environment/Transit, Economy);
additional points may be obtained through providing Added Amenities. Project density
will be calculated as follows: the number of points earned will be converted to a
percentage which will be the density bonus multiplier. For example, an application that
earns 159 points will result in a density bonus multiplier of 159% and the density earned
will be 159% of that allowed in Sec. 78-642. In the case of a fractional unit, a fraction of
one-half or more will be considered a whole unit and a fraction of less than one-half will
be disregarded.

55

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PERFORMANCE METRIC

Community

Under guidelines of the Affordable Housing Services Program


(AHSP) (sold/rented to family up to 80% of Area Median Income
(AMI) adjusted for family size, cost/rent of the home meets
Affordable housing (15 years minimum) 2 points for each % affordable (10% minimum) 140
criteria, sold/rented as primary residence, minimum of 15 years
affordability, conditions recorded in document accompanying
the Deed of Trust)

Under guidelines of the Workforce Housing Services Program


(sold/rented to family from greater than 80% to 120% of AMI
1. 5 points for each % workforce (20% adjusted for family size, cost/rent of the home meets criteria,
Workforce housing (15 years minimum) 105
minimum) sold/rented as primary residence, minimum of 15 years
affordability, conditions recorded in document accompanying
the Deed of Trust)
Period of affordability 2 points for each year beyond 15 Secured under guidelines of the AHSP 30
Multifamily required accessibility features: accessible showers
Multifamily: 20 points for elevator, 1 point for
and toilets, grab bars, and lowered counter tops
each % dwelling units with listed accessibility
Single-family accessibility features: 1) accessible showers,
Accessibility features 30
toilets, and grab bars, 2) lowered counter tops, 3) accessible
Single-family: 1 point for each % dwelling units
switches, outlets, and environmental controls , 4) ramp, 5)
with at least three accessibility features
doorways at least 32" wide and passageways 36" wide

25 for a funded SRTS program through


NCDOT, 15 points for a program that receives
Safe Routes to Schools (SRTS) a letter from the regional SRTS coordinator For the regional coordinator, email activekidswnc@gmail.com 25
documenting that the application meets the
SRTS criteria
Environment/Transit

lS points for permanent preservation of at least


SO% of riparian buffers and at least SO linear feet of
stream and identified/mapped wetlands present Development incorporates the retention of intact or restored riparian
on the site; buffers (30 feet in width as measured from top of bank), delineat ed
20 points for permanent preservation of at least wetlands (inclusive of a SO foot buffer surrounding the wetland area).
Conserve riparian buffers and wetlands 7S% of riparian buffers and at least 7S linear feet of These areas are to be preserved in perpetuity. In all cases, wetlands 2S
stream and identified/mapped wetlands present must be preserved to obtain points. Stormwater devices and
on the site; pervious, at grade, passive recreation permitted within the buffer
2S points for permanent preservation of all riparian areas.
buffers and at least 100 linear f eet of stream and
identified/mapped wetlands present on the site

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MAXIMUM
POINTS PERFORMANCE METRIC POSSIBLE
POINTS
Preservation of open space to be dedicated in perpetuity. For the
purpose of this table, open space does not include acreage otherwise
Conserve open space 5 points per acre of preserved open space preserved to obtain points in other categories, such as riparian 25
buffers, wetlands, steep slope areas, special flood hazard areas,
community gardens, or passive recreation areas.

Must meet minimum criteria as described in NCDENR BMP Manual


Low Impact Development (LID) - utilizing 5 points for each BMP device utilized after base http://portal.ncden r.org/web/lr/bmp-manual, other BMP's
25
Best Management Practices (BMPs) stormwater requirements are met employing proprietary technology (not described within manual)
must be approved by County Stormwater Management Engineer

Exclusion of development inside special All development, except stormwater devices and pervious, at grade,
flood hazard areas (SFHAs) and steep slopes 50 points for fully clustering outside of SFHA and passive recreat ion, to be clustered on least environmentally sensitive
50
- greater than 2S% (if those conditions exist steep slope areas. areas of site (i.e. outside of SFHA's and steep slopes) and SFHAs and
on property) steep slope areas are to be protected in perpetuity.

Participation in Energystar program 25 points for certification of all proposed units Dwelling units must receive Energystar certification 2S
10 points for 10% energy production from Development incorporates non-commercial solar, geothermal, or
Alternative energy sources 10
alternative sources wind energy

Development incorporat es t he installation of either rainwater or


greywater collection systems through the use of cistern reservoirs
Rainwater/greywater collection 5 points for water collection systems 5
subject to review and approval of the County Stormwater
Management Engineer
Access to public transit is defined as a project that is located within
2,640 feet of a designated ART or Mountain Mobility (Trailblazer)
50 points for projects that are within 2,640 feet of
Proximity to public transit routes
a public transit route.
route. The 2,640 feet is measured from the entrance of the so
development and the entirety of the measured distance must be on
greenways, sidewalks, or along roadways.

Roads must be designed to NCDOT standards pursuant to the NCDOT


Construction of public road(s) built to
Subdivision Roads - Minimum Construction Standards Manual.
NCDOT standards and to be dedicated to 25 points for NCDOT maintenance of roads 25
Subdivision plat must include dedication language. A coordinating
NCDOT.
letter from NCDOT is required.

Economy

10 points where 15% of the homes are smaller in Smaller in size and scope: 2 BDR single family, 1or2 BDR apartments;
Mixed use (mix in housing sizes and types) size/scope; 10 points where a mix of multifamily Mix of multifamily and single-family: at least 30% of the units 20
and single-family structures are provided comprise each type

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MAXIMUM
POINTS PERFORMANCE METRIC POSSIBLE
POINTS

Mixed use inclusive of commercial structures, to be developed at a


neighborhood scale. Commercial structures must be less than 50,000
Mixed use (non-residential and residential) 30 points square feet per building, and may comprise no less than 10% and no 30
more than 35% of the total heated square footage of the
development.

Community garden plot s must be no less t han 100 square feet per
unit and must be in production. Preservation of active farmland must
10 points for active community garden plots, 5
consist of a minimum of 2 acres set aside for
points for every two acres placed in farming use,
Preserve active farmland horticultural/agricultural practices. For the purposes of these points, 25
with a maximum of 15 points for preservation of
"farming use" can include only horticulture, agriculture, and poultry
active farmland through farming of property
or small mammals for dairy production (slaught ering operations are
not allowed). Areas must be dedicated in perpetuity.

Recorded site plan must indicate the building(s) and buildings must
10 points if available only to members of the be financially guaranteed and completed in 5 years of approval of the
Community building community; 25 points if available to members of site plan or CUP. Deed restrictions indicating use (public or private) 25
the public must be recorded. Structures must provide community meeting
space (not a pool building, etc.)

Added Amenities

Provision of community facilities 5 points for every 1,000 square feet of additional Site specific development plan submitted showing location, square
25
(playgrounds, clubhouses, pools, etc.) community facilities. footage, and design of t he amenities.
Non-motorized passive recreation (such as
2 points for every 1,320 linear feet of t rail or 2
running, walking, biking t rails, primitive Site specific development plan submitted showing location, square
points for every 1,000 square feet of a passive 10
camping areas, and similar low impact footage, and design of the amenities.
recreation area
outdoor activities).

1 tree per every 50 linear feet of road at least 2 inch in caliper. Areas
Street trees 1 point per 8 trees 10
to receive trees first are the main entrance and commercial corridors.

1 point for every 500 linear feet of sidewalk


5 foot wide sidewalk with a 5 foot wide utility strip/setback from the
Sidewalks internal to the development; 2 points for every 10
street or curb edge
500 linear feet external to the development
Project incorporates continuous greenway throughout development
10 points for new greenway construction, 5 and/ or a connection/ dedicated easement to an existing greenway
Connects with greenways 10
points for connection to existing system system. Greenways and connections to greenways must be
dedicated as such in perpetuity.

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(2) Affordability of Units. Applicants must demonstrate that the proposed units will be
maintained at a rate which aligns economically with affordable or workforce housing. In
order to qualify as a community oriented development at least ten percent of the units
provided must be considered affordable housing or at least 20 percent of the units provided
must be considered workforce housing. For the purposes of this section , affordable housing
will be targeted to individuals at 0% to S80% of area median income and workforce housing
will be targeted to individuals at >80% to 120% of area median income. The mechanisms
used to guarantee affordabi lity and/or workforce housing rates must remain in place for a
minimum of 15 years following the issuance of a Building Certificate of Occupancy and must
be approved under guidelines of the Affordable Housing Services Program .and the
Buncombe County Legal Department. No variance(s) from this requirement may be
requested or obtained under Sec. 78-621 (4) or Sec. 78-623.

(3) Continuity of units. Applicants must demonstrate that the proposed affordable/workforce
units will be distributed throughout the development and similar in design characteristics
including fac;ade and building materials to any proposed market rate units. Architectural
renderings shall be submitted as part of the application.

(4) Development Schedule. A development schedule is required indicating approximate


beginning and completion dates of the project, including the schedule for the market rate
and affordable/workforce units and any proposed phases. When work within an approved
community oriented development is not begun within two years following the date of
approval, the approval shall be deemed expired.

(5) Connectivity. Community oriented developments should encourage connectivity with the
surrounding area. These developments may not be gated or enclosed in a manner which
physically restricts access to non-residents. This provision is to be clearly stipulated in
perpetuity in the recorded covenants or deed restrictions; these restrictions must be
recorded prior to any subdivision of land associated with the development and/or the
issuance of permits for the construction of residential units.

(6) Recordation of approved plan and restrictive covenants. Prior to the subd ivision of land
associated with the development or the issuance of permits for the construction of
residential units, a comprehensive site plan and deed restrictions must be approved by the
planning department and subsequently placed on file with the Buncombe County Register of
Deeds.

(a) The comprehensive site plan shall indicate the following items, and any other items
deemed necessary to provide for items utilized to obtain bonuses in density in Section
78-650(c)(1) above:
( 1) Building and grading envelopes to include but not be limited to all structures,
location of the affordable/workforce units, disturbed and impervious areas,
planned community infrastructure, and recreational buildings and areas, etc.-
(2) Any easement areas to be conserved, connected with greenways, or used as
provision for safe routes to schools.
(3) Any easement areas required to indicate the preservation of active farmland
through active farming or community garden space.
(4) Any areas to be permanently dedicated as community facilities (playgrounds,
clubhouses, pools, etc.).
(5) The approved buffering/landscaping plan .
(6) Delineation of floodplain areas to remain undeveloped.

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(7) Delineation of steep slope areas (areas of 25 percent slope or greater) through a
slope analysis generated using field-verified topographic data.
(8) A table listing the point totals for each element of the plan as approved, and
where applicable, providing a legend or key to those items on the plan as labeled
or identified.

(b) The deed restrictions shall include provisions for the following items, in perpetuity or in
the approved duration:
(1) The mechanisms used to guarantee affordability and/or workforce housing rates
as per Sec. 78-650(c)(2).
(2) Prohibition of gates or other exclusionary devices or structures.
(3) Language dedicating areas in perpetuity for community space, greenways,
preservation, conservation, or protection, referencing the recorded site plan.
(4) Language providing for maintenance of all items provided for in order to obtain
points within 78-650(c)(1) Community Oriented Development Density Table
including but not limited to communal infrastructure, designated community
space, stormwater management devices, rainwater collection/greywater
harvesting, alternative energy sources, and buffering or landscaping.

(7) Financial guarantee of improvements. Where the following items are to be provided and are
utilized to gain bonuses in density pursuant to Sec. 78-650(c)(1), prior to the subdivision of
land associated with the development or the issuance of perm its for the construction of
residential units, a financial guarantee shall be placed on file with the county guaranteeing:

i. the complete construction of the affordable or workforce housing units;


ii. the provision of community building(s) or facilities ;
iii. the provision of sidewalks, greenways, or other forms of passive recreation ;
iv. the provision of street trees;
v. the installation and completion of water, sewerage and roads, when not
guaranteed separately under the Land Development and Subdivision
Ordinance, to serve said units.

Acceptance of the guarantee is subject to the owner/developer certifying that the installation
of all required improvements will occur with in a specified time as set forth in the
development schedule. The construction elements, cost, and anticipated construction
schedule for the work must be itemized and certified by a licensed professional and
submitted to the planning department for approval, with a signed and notarized statement
from the owner/developer indicating their intention to adhere to the schedule provided . The
guarantee of improvements shall be secured in one of the following forms acceptable to the
planning department:

(a) A surety performance bond made by a surety bonding company licensed and
authorized to do business in North Carolina.

(b) A bond of the owner/developer with an assignment to the county of a certificate


of deposit with an institution licensed and authorized to do business in North
Carolina as security for the bond.

(c) A bond of the owner/developer by an official bank check drawn in favor of the
county and deposited with the county.

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(d) Cash or an irrevocable letter of credit from an institution licensed and authorized
to do business in North Carolina deposited with the county.

Such guarantee shall be in the amount equal to 150 percent of the identified cost of the
planned improvements and the continuing maintenance of those improvements until the
completion date as stipulated within the development schedule as estimated by the licensed
professional retained by the owner/developer. The guarantee shall remain in full force and
effect until all obligations have been faithfully performed.

If the cost estjmate for improvements and maintenance or the schedule for installation is
deemed inadequate by the planning department, the planning department reserves the right
to require an independent construction appraisal, at the owner/developer's expense, as a
condition of final plat approval or prior to the issuance of permits for the residential units.

All guarantees of improvements shall contractually stipulate an expiration date that is at


least 180 days past the stipulated completion date as stated in the approved development
schedule. The owner/developer must submit a signed and sealed statement by a registered
land surveyor or civil engineer licensed in North Carolina certifying that all work has been
completed to the standards of this article before the planning department will determine
satisfactory completion of all guaranteed work. Work not completed within 90 consecutive
days following the stipulated completion date as stated in the development schedu le will be
considered in default. The planning department will proceed immediately with a claim
against the guarantee of improvements for all work in default.

If a request to extend the completion date stipulated within the approved development
schedule is made, the zoning administrator may grant such a request provided that a
revised development schedule is provided concurrently with the request and deemed
acceptable by the department. Such a request must be made at least 90 days prior to the
expiration of the financial guarantee. If the request for an extension is granted, the financial
guarantee must be immediately amended to incorporate the revised development schedule
and expiration date (if applicable).

Secs. 78-651--78-655. Reserved.

DIVISION 5. GENERAL PROVISIONS

Sec. 78-656. Applicability.


The provisions set forth in this division are not applicable to permitted uses in tlie Open
Use District with the exception of Sec. 78-657 Nonconforming Uses; Sec. 78-664 Travel Tra ilers and
Recreational Vehicles; and Sec. 78-668 Lighting Standards, which shall be applicable in the Open Use
District.

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Sec. 78-657. Nonconforming uses.
Any parcel of land, use of land, building or structure existing at the time of the adoption of the
ordinance from which this article is derived, or any amendment thereto, that does not conform to
the use or dimension requirements of the district in which it is located may be continued and
maintained subject to the provisions in this section.
(1) Nonconforming vacant lots. This category of nonconformance consists of vacant lots
for which plats or deeds have been recorded in the Buncombe County Register of
Deeds Office, which at the time of the adoption of this article fails to comply with the
minimum area requirements of the districts, including overlay districts, in which they are
located. Any use allowed in the affected district may be erected, improved, or expanded
on any single lot of record existing at the time of the adoption of the ordinance from
which this article is derived. All current dimensional requirements as set forth in Division
4 of this Article or as amended must be met to build any new use. This provision shall
apply even though such lot fails to meet the requirements for lot area that are generally
applicable in the district, provided that all dimensional requirements other than those
applying to the area of the lot shall conform to the regulations for the district in which
such lot is located. Variance of dimensional requirements shall be obtained only through
action of the board of adjustment.
(2) Nonconforming Jots of record. If two or more lots or combinations of lots, or portions of
lots, contiguous and in single ownership, are of record at the time of the adoption of the
ordinance from which this article is derived, no portion of such parcel shall be
subdivided, re-subdivided , used, or sold in a manner which diminishes compliance with
lot area requirements established by this article.
(3) Nonconforming occupied lots. This category of nonconformance consists of lots
occupied by buildings or structures at the time of the adoption of the ordinance from
which this article is derived that fail to comply with the minimum requirements for area,
yard, and setbacks for the district in which they are located. These lots may continue to
be used.
(4) Nonconforming open uses of land. This category of nonconformance consists of lots
used for storage yards, used car lots, auto wrecking, junkyards, and similar open
spaces where the only buildings on the lot are incidental and accessory to the open use
of the lot and where such use of the land is not permitted to be established hereafter,
under this article, in the district in which it is located. A legally established nonconforming
open use of land may be continued except as follows :
a. When a nonconforming open use of land has been changed to a conforming use, it
shall not thereafter revert to any nonconforming use.
b. Nonconforming open use of land shall be changed only to conforming uses.
c. A nonconforming open use of land shall not be enlarged to cover more land than was
occupied by that use when it became nonconforming.
d. When any nonconforming open use of land is discontinued for a period in excess of
180 days, any future use of the land shall be limited to those uses permitted in the
district in which the land is located. Vacancy and/or nonuse of the land, regardless of
the intent of the owner or tenant, shall constitute discontinuance under this section.
(5) Nonconforming uses or structures. This category of nonconformance consists of
buildings or structures used at the time of adoption of the ordinance from which this

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article is derived for purposes of use not permitted in the district in which they are
located. Such uses may be continued as follows:
a. An existing nonconforming use may be changed to another nonconforming use of
the same or higher classification, provided that the other conditions in this section
are complied with . For the purpose of this article, the rank order of uses from higher
to lower shall be:
1. Residential;
2. Public;
3. Commercial ; and
4. Industrial.
b. When a nonconforming use has been changed to a conforming use, it shall not
thereafter be used for any nonconforming use.
c. A nonconforming use may not be extended or enlarged, nor shall a nonconforming
structure be altered except as follows:
1. Structural alterations as required by law or ordinance to secure the safety of the
structure are permissible .
2. Maintenance and repair necessary to keep a nonconforming structure in sound
condition are permissible.
3. Expansion of a nonconforming use of a building or structure into portions of the
structure which , at thetime the use became nonconforming, were already
erected and arranged or designed for such nonconforming use is permissible.
4. Alterations or expansions of an existing structure designed to improve the safety,
function, or the appearance of the structure are permissible. The square footage of
any expansion shall be no greater than the square footage of the existing structure.
d. When any nonconforming use of a building or structure is discontinued for a period in
excess of one year, and there are no substantial good faith efforts to re-establish the
use during this period, the building or structure shall not thereafter be used except in
conformance with the regulations of the district in which it is located. Obtaining
permits to maintain the existing use or significant continuous efforts to market the
property for sale or lease for the existing use (e.g., MLS listing, realtor contract, etc.)
shall be regarded as substantial good faith efforts. A nonconforming use shall be
deemed discontinued after a period of two (2) years regardless of any substantial
good faith efforts to re-establish the use and thereafter, the building or structure shall
be used only for a conforming use.
(6) Reconstruction of damaged buildings or structures. Any nonconforming use, which has
been damaged by fire, wind, flood, or other causes, may be repaired and used as
before, provided:
a. Repairs are initiated within 12 months and completed within two years of such
damage.
b. The total amount of space devoted to a nonconforming use may not be increased.
c. Reconstructed buildings may not be more nonconforming with respect to
dimensional restrictions.

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d. The use to which the building is put after repair does not result in a change from one
nonconforming use to another nonconforming use.
(7) Continuation of mobile home parks. Mobile home parks that become nonconforming
uses shall be permitted to continue operation, and existing spaces within the mobile
home park may continue to be occupied by mobile homes even after a space has been
vacated. However, these mobile home parks shall not be expanded or increased in size,
and no additional spaces designed for occupancy by a mobile home shall be added to
the site after the adoption of the ordinance from which this article is derived. A mobile
home park that is discontinued for 180 days shall not be reestablished.

Sec. 78-658. Off-street parking.


(a) Purpose. Off-street automobile storage or parking space shall be provided on every lot on
which any of the following uses are hereafter established. The number of parking spaces provided
shall be at least as great as the number specified in this section for various uses. When application of
such provision results in a fractional space requirement, the next larger requirement shall prevail.
Each lot abutting a major thoroughfare, as determined by the zoning administrator, shall be provided
with vehicular access thereto and shall be provided with adequate space for turning so that no vehicle
shall be required to back into the street. A parking space shall consist of an improved hard-surfaced
or crushed stone area not less than nine feet by 18 feet plus the necessary access space, unless
otherwise authorized by the board of adjustment or zoning administrator. Such parking shall be
provided within the setback lines set forth in this article. The zon ing administrator may, however,
reduce such setbacks for parking purposes, provided that natural vegetation , landscaping, or a buffer
strip is provided as a buffer to surrounding uses.
(b) Minimum parking requirements. The required number of off-street parking spaces for each
use shall be provided as specified in Table 3.

Residential Uses
Mobile/manufactured home Two spaces for each mobile/manufactured home.

Mobile/manufactured home parks Two spaces for each mobile/manufactured space.

Residential dwellings, slngle·famlly and multifamily Two spaces for each dwelling unit.

Public and Semi-Public Uses


Hospitals and clinics One space for each two beds, plus one space for each
staff or visiting doctor, plus one for each two
employees on shift of greatest employment.

Funeral parlors One space for each four seats In a chapel or parlor.

Churches, religious Institutions and places of public One space for each four seats In the principal
assembly assembly room.

Recreational facilities Two spaces for every tennis, squash, or racquet ball
court; skating rink, one space per 200 square feet;

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Table 3: Required Parking
Land Use Required Parking
swimming pool, one space per 140 square feet; health
exercise facility, one space per 50 square feet.

Golf or country club, two spaces per tee.

Athletic fields, ten spaces per field.

Pitch and putt courses, one space per 50 square feet;


bowling establishment, three spaces per lane; billiard
hall or pool hall two spaces per table; shooting
ranges, one space per target area.

Other places of recreation and assembly without fixed


seats shall have one space for each 200 square feet of
gross floor space.

Schools, elementary and middle schools One space for each classroom and administrative
office.

Schools, senior high One space for each classroom and administrative
office, plus one space for each 20 seats or one space
for each 400 square feet of area used for public
assembly.

Public buildings One space for each 200 square feet of gross floor
space.

Sanitariums, rest and convalescent homes for the One space for each six patient beds, plus one space
aged and similar Institutions for each staff or visiting doctor, plus one space for
each two employees on shift of greatest employment.

Business Uses

Doctors' and dentists' offices Five spaces per doctor or dentist.

Professional and business offices One space for each 300 square feet of gross floor
space.

Banks and other financial institutions One space for each 150 square feet of gross floor
space.

Retail stores and shops of ail kinds, Including barber One space for each 200 square feet of gross floor
and shoe and similar service outlets space.

Car sales, house and truck trailer sales, outdoor Four spaces for each salesperson, plus one space for
equipment and machinery sales, commercial each two employees.
nurseries

Bed and breakfast Inn One space for each guest room, plus one additional
space for each employee.

Hotels One space for each two rooms, plus one additional
space for each five employees.

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Table 3: Required Parking
Land Use Required Parking
Motels, tourist homes, and tourist courts, and One space for each accommodation, plus two
rooming houses additional spaces for employees.

Service stations Two spaces for each gas pump, plus three spaces for
each grease rack or similar faclllty.

Shopping centers One space for each 300 square feet of gross floor
space.

Restaurants One space for each three seats or stools, plus one
space for each two employees on the shift of the
largest employment.

Day nursery and private kindergartens One space for each staff member, plus one space for
each five students.

Clubs and lodges One space for each three members.

Vocational schools One space for each two students.

Business and special schools One space for each four students.

Nightclubs, bars and pubs One space for each 200 square feet of gross f loor
area.

Animal hospitals and veterinarian cllnlcs One space for each 200 square feet of gross floor
area.

Kennels One space for each four pens.

Motor vehicle maintenance and repair One space for each service bay and mechanic.

Indoor theaters One space for each four seats.

Parcel delivery services One space for each employee on the shift of
maximum employment, plus one space for each 800
square feet of gross floor area.

Wholesale and Industrial Uses

Wholesale and Industrial uses One space for each two employees at maximum
employment on a single shift, plus one space for each
company vehicle operating from the premises.

(c) Location of other property. If the required automobile parking spaces cannot reasonably
be provided on the same lot on which the principal use is conducted, such spaces may be provided
on other off-street property, provided that such property lies within 400 feet of an entrance to such
principal use. Such automobile parking shall be associated with the principal use and shall not
thereafter be reduced or encroached upon in any manner.
(d) Shared parking. The zoning administrator may approve the joint use of up to 100 percent
of the required parking spaces for two or more uses located on the same parcel or adjacent parcels ,

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provided that the developer can demonstrate that the uses will not overlap in hours of operation or in
demand for the shared spaces.
Any sharing of required parking spaces by uses located on different parcels shall be guaranteed by a
written agreement between the owner of the parking area and the owner of any use located on a
different parcel and served by the parking area.
Should the uses change such that the new uses overlap in hours of operation or in demand for the
shared spaces, the shared parking approval shall become void. Parking meeting the requirements
of this section shall then be provided for each use.
(e) Extension of parking lot into a residential district. Required parking may extend up to 120
feet into a residential zoning district, provided that:

(1) The parking area adjoins a NS, CS, or EMP district;


(2) It has its only access to or fronts upon the same street as the property in a NS, CS,
or EMP district for which it provides the required pa rking; and
(3) Is separated from abutting properties in the residential district by a buffer strip.

Sec. 78-659. Off-street loading and unloading space.


Every lot on which a business, trade or industry use is hereafter established shall provide
space as indicated in this section for the loading and unloading of vehicles off the street. Such
space shall have access to a street or alley. For the purpose of this section, an off-street loading
space shall have minimum dimensions of 12 feet by 40 feet and an overhead clearance of 14 feet in
height above the alley or street grade. Spaces shall be provided as follows:

(1) Retail business: One space for each 10,000 square feet of gross floor area.

(2) Wholesale and industry: One space for each 25,000 square feet of gross floor area.
(3) Truck terminals : Sufficient space to accommodate the maximum number of trucks to
be stored or to be loading or unloading at the terminal at any one time.

Sec. 78-660. Required yards and other spaces.


No part of a yard or open space, or loading space required in this section or required in
connection with any building for the purpose of complying with th is article, shall be included as part of
a yard, open space or loading space similarly required for any other build ing.

Sec. 78-661. Driveways and visibility at intersections.


Driveway standards shall be met when designing vehicular access points from public streets
to individual properties, excluding single and two-family residential. All sight distances at intersections
and all vehicular entrances on to state-maintained roads from nonresidential uses must meet the
standards for secondary roads established by the N.C. Department ot' Transportation and must be
approved by such department prior to receiving a zoning permit. On corner lots, no planting,
structure, sign , fence, wall or other obstruction shall be erected so as to interfere with the sight
distance. Unless the access point will be shared between two or more adjoining properties, all access
points shall be located at least five feet from all property lines perpendicular to the street.

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Sec. 78-662. Relationship of building to lot.
In no case, shall there be more than four (4) principal buildings, in addition to any customary
accessory buildings on a single lot, except in the case of a designated planned unit development,
manufactured home park, place of worship , or community oriented development.

Sec. 78-663. Accessory structures and buildings.


(1) Accessory uses or structures shall not involve any use or structure otherwise prohibited by this
division or requiring a conditional use permit. Accessory uses or structures with a building footprint of
no more than 320 square feet and a height of no more than 15 feet shall meet the following standards:
(a) Front yard : set forth per relevant zoning district under Sec. 78-642;

(b) Side yard setback: seven feet; and

(c) Rear yard setback: seven feet.

(2) Accessory uses or structures with a building footprint of greater than 320 square feet or a height of
more than 15 feet shall meet the following standards :
(a) Front yard , set forth per relevant zoning district under Sec. 78-642;

(b) Side yard setback, no public sewer: ten feet;

(c) Side yard setback, public sewer: seven feet; and

(d) Rear yard setback: ten feet.

The front yard setback requirements of this section shall not apply to accessory structures on lots
where the existing primary structure is a legal nonconformance with respect to the front setbacks set forth
under Sec. 78-642. In such cases, the setback shall be that of the aforementioned existing buildings.

Sec. 78-664. Travel trailers and recreational vehicles.


Travel trailers and/or recreational vehicles may be used as a temporary sing le-fam ily dwelling
for no more than 180 days out of the calendar year only in those districts that permit travel trailers or
travel trailer parks. In no case shall a travel trailer or recreational vehicle be permanently set up or
affixed to the ground or site, nor shall it be used as a permanent single-family dwelling. When utilized
as a temporary single-family dwelling, a travel trailer may not be located within a single travel trailer
park for more than 180 days out of the calendar year. If a travel trailer is disconnected from all
utilities, is tagged and road-ready, and is not utilized as a temporary dwelling unit on site, it will be
considered a parked vehicle for the purposes of this ordinance.

Sec. 78-665. Home occupations.


Standards pertaining to home occupations are contained within the definition of a home
occupation as found in section 78-581 .

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Sec. 78-666. Vacant lots.
Vacant lots and open spaces located adjacent to major thoroughfares shall be maintained.
Vegetation shall be neatly trimmed, and the accumulation of unsightly debris shall be prohibited.

Sec. 78-667. Buffering and parking lot landscaping.


(a) Buffer strip. A buffer strip shall be established along the side and rear lot lines of any
nonresidential use adjoining a residential use. Said buffer shall not extend beyond the established
setback line along any street. Said buffer strip shall not be less than 20 feet in width for uses where
the lot with the nonresidential use is one acre or greater. In cases where the nonresidential lot
requiring the buffering is less than one acre, the buffer strip shall be at least 15 feet wide.
(b) Methods of buffering. The required buffers shall be placed according to one or a
combination of the following methods, as approved by the board of adjustment or zoning administrator
as fitting for the use and surrounding areas:
(1) At least two rows of evergreen trees, which shall be approved as to type by the
board of adjustment, which at the time of planting shall be at least five feet in height,
and which at maturity shall be at least ten feet in height. In each row the trees
shall be spaced no more than eight feet apart (from base of tree to base of tree) at
time of planting, with trees in adjacent rows offset (staggered) four feet. The rows
shall be no more than eight feet apart in a 20-foot buffer strip and seven feet apart in
a 15-foot buffer strip and centered within the buffer strip.
(2) A solid visual barrier fence eight feet in height may be accepted as an alternative
buffer by the board of adjustment or zoning administrator.

(3) Earth mounding may be used in conjunction with planting or fencing to satisfy height
requirements, but slopes shall not exceed one foot in height to two feet horizontal.
In the event that the height requirements provided herein do not provide a visual
screen from the adjoining property, the board of adjustment or zoning administrator
may require additional earth mounding, or other type of buffering, to attain the
desired screening effect.
This buffering requirement may be modified by the zoning administrator where
adequate buffering exists in the form of natural vegetation and/or terra in.
(c) Maintenance of buffering. The owner of the property on which the buffer is located shall
be responsible for the maintenance of said buffering. Trees shall be carefully planted and maintained
and evergreen trees shall be maintained so that dense branching beg ins at ground level and
continues to the top of the plant. Unhealthy or dead plants shall be promptly removed and replaced
with in one planting season. Each fence required by this section or by the board of adjustment shall be
maintained in good repair, including periodic painting or refinishing where req uired. Failure to maintain
any required vegetation, earth mounding, and fences in good condition shall constitute a violation of
this section.
(d) Parking lot landscaping. Parking lots of 5,000 or more square feet in area shall have
landscaped areas. The landscape area(s) shall be at least ten percent of the area of the parking lot. No
individual landscaped area planted with a tree shall contain less than 100 square feet. All trees planted
to conform to these landscape requirements shall be appropriately spaced to permit normal
growth.

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Sec. 78-668. Lighting Standards.
(a) Purpose. Lighting standards are established in order to permit reasonable uses of
outdoor lighting for night-time safety, utility, security, productivity, enjoyment and commerce. These
standards will minimize light pollution, light trespass and glare and will work to promote energy
efficient lighting practices and systems.
(b) Applicability. Lighting standards shall apply to all new uses including commercial,
industrial, public and residential development, all new dusk-to-dawn utility/security lights, and all new
street lighting. To the extent regulated by this section, all existing outdoor lights or lighting systems,
installed prior to the adoption of this ordinance, shall be treated as nonconforming uses pursuant to
Section 78-657 with the following exceptions:

(1) When a vehicular canopy is renovated at a cost which exceed 50% of the value of
the structure or is replaced in its entirety, all lighting attached to the new or renovated
canopy must comply with Section 78-668(e).
(2) When all the light fixtures of an assembly or group (such as, all the fixtures lighting a
loading area or all the fixtures lighting one fa9ade of a building) are replaced, the
new lighting must comply with Section 78-668(e).
(3) All existing dusk-to-dawn utility/security lights shall conform to the provisions of
Section 78-668(e) within 5 years from the date th is Section was adopted .
(c) Exemptions. The following are not regulated by the lighting standards set forth in this
section:
(1) Lighting for single-family residential use, with the exception of dusk-to-dawn
utility/security lights which shall be regul ated pursuant to Sec. 78-668(e)(5).
(2) Lighting required by federal, state, or local laws or regulations;
(3) Seasonal displays using multiple low-wattage bulbs;
(4) Lighting used during an emergency or by emergency services personnel or at their
direction;
(5) Temporary lighting which does not utilize the lig hting types described in Sec. 78-
668(d)(1).
(6) Temporary lighting used for public purposes including but not limited to highway
construction and public utility repairs.
(d) Prohibitions. The following lighting types are specifically prohibited:
(1) Search lights, laser source lights, or any other similar high intensity lights except for
those permitted in advance as required in Sec. 78-668(f)(5) to be used on a
temporary basis;
(2) Lighting that is oriented upward, except as otherwise provided for in this section;
(3) Lighting that could be confused for a traffic control device;
(4) A suspended string of lights, consisting of individual lamps larger than 45 lumens,
unless used only for seasonal decorations.
(e) Lighting Specifications

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(1) Intensity.
a. Unless otherwise specified, the maximum light level at any point shall be 0.75
footcandles at any property line, or 3.0 footcandles at any public street right-of-
way.
b. The maximum average light level for the developed area of the project to be
permitted shall be 4.5 footcandles.
c. The maximum rating for LED lights shall be 4,300 degrees Kelvin.
(2) Luminaire type. All lighting luminaires to be installed on a permanent basis shall
consist of full cutoff and cutoff fixtures, unless otherwise stipulated by this section .
Full cutoff fixtures shall be utilized where the luminaire has more than a 1,250 lumen
output, unless as otherwise stipulated by this section. Lighting fixtures to be utilized
on a temporary basis and as permitted through section 78-668(f)(5) shall be exempt
from this requirement.
(3) Accent and Fa9ade Lighting . Accent or fa9ade lighting shall be directed toward the
face of the building or structure.
a. Lighting fixtures shall be directed downward rather than upward. The Zoning
Administrator or the Board of Adjustment may waive this requirement in cases
where it is impractical.
b. Placement of low wattage fixtures with shields (as needed) close to the building
to graze the fa9ade is required to minimize reflected light from windows and
other surfaces.
(4) Vehicular Canopies. Areas under a vehicular canopy shall have a maximum average
horizontal illuminance of 30 footcandles. All lighting under the canopy, including but
not limited to luminaires mounted on the lower surface of the canopy and auxiliary
lighting within signage or panels over the pumps, is to be included in the calculation.
Lighting under vehicular canopies shall be designed so as not to create glare off-site.
Acceptable methods include one or more of the following:
a. Recessed fixture incorporating a lens cover that is either recessed or flush with
the bottom surface (ceiling) of the vehicular canopy that provides a full cutoff or
fully shielded light distribution.
b. Surface mounted fixture incorporating a flat glass that provides a full cutoff or
fully shielded light distribution.
(5) Dusk-to-dawn utility/security lights. Dusk-to-dawn utility/security lights shall have a
maximum rating of 9,500 lumens, shall be mounted at a maximum height of 25 feet
above the lowest adjacent grade, and must be full cutoff fixtures.
(6) Street lighting.
a. Alignment. Street lighting on newly constructed streets shall be alternately
staggered on each side of the street. The Zoning Administrator or the Board of
Adjustment may waive this requirement in cases where it is impractical.
b. Intensity. Newly installed street lighting luminaires shall meet the following
standards:

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1. Individual luminaires erected in residential areas shall have a rating which
does not exceed 9,500 lumens.
2. Individual luminaires erected in commercial and industrial areas shall
have a rating which does not exceed 50,000 lumens.
c. Luminaire type. All street lighting must consist of full cutoff fixtures. If the
luminaire is a post mounted decorative fixtu re mounted at a height of no more
than 18 feet above the lowest adjacent grade, the luminare may consist of a
cutoff fixture if the Zoning Administrator or Board of Adjustment determines that
appropriate glare reduction measures are taken.
(7) Outdoor parking, loading and storage areas. The mounting height of all outdoor
parking, loading and storage area lighting shall not exceed 37 feet above the lowest
adjacent grade. The lighting of outdoor parking areas shall have a maximum
average horizontal illuminance of 6.0 footcandles.
(8) Outdoor sales/display areas. The mounting height of all outdoor sales/display area
lighting shall not exceed 37 feet above the lowest adjacent grade. The lighting of
outdoor sales/display areas shall have a maximum average horizontal illuminance of
25 footcandles.
(9) Outdoor sports fields and outdoor performance areas.
a. The mounting height of outdoor sports field and outdoor performance area
lighting fixtures shall not exceed 80 feet from the lowest adjacent grade.
b. All outdoor sports field and outdoor performance area lighting fixtures shall be
equipped with a glare control package (louvers, shields, or similar devices).
The fixtures must be aimed so that their beams are directed and fall within the
primary playing or performance area.
c. The hours of operation for the lighting system shall coincide with active use of
the field or performance area and any necessary maintenance thereof. Lighting
the field or performance area during periods of vacancy shall be prohibited.
(f) Administration and Enforcement
(1) Lighting Plan Required . A lighting plan designed and sealed by a licensed engineer
shall be submitted with the application for a Zoning Certificate of Compliance. The
plan shall indicate the following :
a. Location and mounted height of all exterior lighting on the property.

b. A point-by-point footcandle array in a printout format indicating the location and


aiming of illuminating devices.
c. The printout shall indicate compliance with the lighting specifications required
by this Section.
d. The plan shall be accompanied by a description of the illuminating devices,
fixtures, lamps, supports, reflectors, poles, raised foundations and oth·er devices
including but not limited to manufacturers or electric utility catalog specification
sheets and/or drawings, and photometric report indicating fixture classification
(cutoff fixture, full cutoff fixture, etc) must be furnished.

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e. The Zoning Administrator may waive the requirements for a lighting plan set
forth above, provided the applicant has provided all other required information
and can sufficiently demonstrate compliance with this section. If the lighting plan
requirements are waived, the requirements set forth in Section 78-668(f)(2) and
78-668(f)(3) shall also not apply.
(2) A written statement signed and sealed by a licensed engineer, which indicates that
the lighting plan complies with the standards set forth herein, shall be submitted with
any application for a Zoning Certificate of Compliance that proposes permanent
outdoor lighting.
(3) A signed and sealed as-built drawing which demonstrates that the lighting plan
described in Section 78-668(f)(1) and submitted with the Zoning Certificate of
Compliance application was followed shall be submitted for review prior to the
issuance of a Zoning Certificate of Occupancy for the project.
(4) Light Measurement Technique. Light level measurements of light trespass shall be
made at the property line of the property upon wh ich light to be measured is being
generated. Measurements shall be made at finished grade (ground level) with the
light registering portion of the meter held parallel to the ground pointing up.
Measurements shall be taken with a light meter that has been calibrated within the
previous two years.
(5) Permit for Temporary Lighting Required. Applicants who wish to utilize lighting on a
temporary basis or lighting described in Sec. 78-668(d)(1) must submit a written
request to the Zoning Administrator. The Zoning Administrator shall have 10
business days to approve or deny the permit application. The application shall
include:
a. The purpose of the lighting;
b. The hours of lighting operation;
c. Where applicable, a plan showing the extent and intensity of light trespass upon
adjacent properties;
d. Signed certification that in no case shall such lighting be directed at roadways
where such lighting could pose a public safety threat to vehicular traffic; and
e. An application fee for the Zoning Certificate of Compliance which shall be
issued by the Zoning Administrator.
A permit for temporary lighting, in the form of a zoning certificate of compliance, shall
be issued for an operation period of no more than 30 days. Once the permit has
been issued , it may be renewed in 30-day periods for up to a total of 90 days unless
the permit is for lighting as described in Section 78-668(d)(1). If operation is to
continue past the close of the 90-day period, a new perm it must be applied for and
obtained. Temporary lighting of the type described in Section 78-668(d)(1) shall be
event-specific and shall not be permitted for a duration of more than five (5) days. In
no case shall temporary lighting be permitted on a single property, in one or in
multiple locations, for more than 180 days per calendar year.

Secs. 78-669--78-675. Reserved.

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DIVISION 6. CONDITIONAL USES

Sec. 78-676. Purpose.


The following conditional uses would not be appropriate without restriction throughout the
zoning districts, but could be acceptable if controlled as to number, area, location or relation to the
neighborhood. Such uses may be permitted in a zoning district as conditional uses if the provisions
of this and all other divisions of this article have been met.

Sec. 78-677. Procedure for obtaining a conditional use permit.


(a) Application. A written application for a conditional use permit is subm itted to the zoning
administrator.
(b) Conference with applicant. Prior to submission of an application for a conditional use
permit, the applicant shall arrange a conference with the zoning administrator. At the conference the
applicant shall submit a sketch development plan and a brief description of the proposed
development strategy. The conference is designed to inform the applicant of the county's regulations
and policies concerning development alternatives, as well as to inform the county of the applicant's
intentions, so as to give the applicant some informal, nonbinding feedback on the acceptability of the
applicant's plan. The greater the level of common understanding between the applicant and the
county that can be achieved at the conference stage, the smoother the remaining steps of the review
process will be.
(c) Notice of hearings. All board of adjustment public notice shall be conducted in accordance
with N.C. Gen. Stat. §153A-345.1 or as amended.

(d) Development plan; submission; contents. At least th i rt y ( 30) days prior to the date
set for the public hearing, the applicant shall submit the application, one full sized copy of the
development plan to a known scale, 11 copies of the development plan reduced to either 11 " x 17" or
8.5" x 11", and a digital version of the development plan in pdf or other acceptable format to the
zoning administrator. The development plan shall contain a map drawn to scale, with the date of
preparation , and shall contain, where applicable, the following information :
(1) Existing site conditions, including contours, watercourses, identified flood hazard
areas, and any unique natural or manmade features.
(2) Boundary lines of the proposed development, proposed lot lines, and plot designs.
(3) Proposed location and use of all existing and proposed structures, including the
location of any proposed retaining walls. The maximum height of any retaining wall
shall be shall be shown on the proposed site plan.
(4) Location and size of all areas to be conveyed , dedicated, or reserved as common
open space, parks, recreational areas, school sites, and sim ilar public and
semipublic uses.
(5) The existing and proposed street system, including the location and number of off-
street parking spaces, service areas, loading areas, and major points of access to
the public right-of-way. Notations shall be made of the proposed ownership of a
street system, public or private. Documentation from the Fire Marshal shall be
provided of the adequacy of the development's facilities for emergency medical and

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fire services .
(6) Approximate location of proposed utility systems , including documentation of water
and sewer availability from the appropriate local and state agencies. Documentation
of pre-development conferences with the sedimentation and erosion control and
stormwater management offices shall also be submitted, where required.
(7) Location and/or notation of existing and proposed easements and rights-of-way.
(8) The proposed treatment of the perimeter of the development including materials
and/or techniques such as screens, fences, and walls.
(9) Information on adjacent land areas, including land use, zoning classifications, public
facilities, and any unique natural features.
(10) Where applicable, the following written documentation shall be submitted:
a. A statement of present and proposed ownership.
b. The zoning district in which the project is located.
c. A development schedule indicating approximate beginning and completion dates
of the development, including any proposed stages.
d. A statement of the applicant's intentions with regard to the future selling
and/or leasing of all or portions of the development.
e. Quantitative data for the following: proposed total number and type of residential
dwelling units, parcel size, gross residential densities, and the total amount of
open space.
f. Plan for maintenance of common areas, recreation areas , open spaces, streets
and utilities.
(11) For commercial structures in PUDs, architectural renderings of all principal buildings,
drawn to a known scale, shall be provided . Elevation renderings of the site, drawn to
a known scale, shall be required for any retaining wall system proposed to provide a
cumulative vertical relief in excess of 1O feet in height showing landscaping;
vegetative screening; and the top and bottom of the wall at grade.
(12) Any additional information required by the board of adjustment in order to evaluate
the impact of the proposed development. The zoning administrator or the boa rd of
adjustment may waive a particular requirement if, in its opinion, the inclusion is not
essential to a proper decision of the project.

(e) Conduct of hearing. Any party may appear in person or by agent or by attorney at the
hearing held by the board of adjustment. The order of business for such hearing sha ll be as follows:

(1) The chairperson , or such person as he' shall direct, shall give preliminary statement of
the case.

(2) The applicant shall present the argument in support of the application .

(3) Persons opposed to granting the application shall present the argument against the
application.

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(4) Both sides will be permitted to present rebuttals to opposing testimony.

(5) The chairperson shall summarize the evidence, which has been presented, giving the
parties opportunity to make objections and corrections.
Witnesses may be called and factual evidence may be submitted, but the board of adjustment shall
not be limited to only such evidence as would be admissible in a court of law. The boa rd of adjustment
may view the premises before arriving at a decision. All witnesses before the board of adjustment
shall be placed under oath and the opposing party may cross-examine them.
(f) Rehearings. An application for a rehearing may be made in the same manner as
provided for an original hearing. Evidence in support of the application shall initially be limited to
that which is necessary to enable the board of adjustment to determine whether there has been a
substantial change in the facts, evidence or conditions in the case. The application for rehearing shall
be denied by the board of adjustment if from the record it finds that there has been no substantial
change in facts, evidence, or conditions. If the board of adjustment finds that there has been a
change, it shall thereupon treat the request in the same manner as any other application.
(g) Conditions for granting approval. In granting a conditional use permit, the board of
adjustment may designate such conditions in connection therewith as will, in its opinion, ensure
that the proposed use will conform to the requirements and spirit of this article. If at any time after a
conditional use permit has been issued the board of adjustment finds that the conditions
imposed and agreements made have not been or are not being fulfilled by the holder of a conditiona l
use permit, the permit shall be terminated and the operation of such use discontinued. If a conditional
use permit is terminated for any reason, it may be reinstated only after a public hearing is held.
Before any conditional use permit is issued, the board of adjustment shall make written findings
certifying compliance with the specific rules governing the individual conditional use and that
satisfactory provision and arrangement has been made for at least the following , where applicable:
(1) The proposed use will not adversely affect the health or safety of persons residing
or working in the neighborhood of the proposed use.

(2) The proposed use will not be detrimental to the public welfare or injurious to property
or public improvements in the neighborhood.

(3) The proposed use will not cause or have adverse effects on surrounding properties
due to noise, vibration , odor, or glare effects.

(4) Satisfactory ingress and egress for the proposed use of the property and proposed
structures has been provided. Particular attention has been paid to automotive and
pedestrian safety and convenience, traffic flow and control.

(5) Provision of off-street parking and loading areas where required , with particular
attention to the items in section 78-658.

(6) Provision of adequate and proper utilities, with reference to locations, avai lability,
and compatibility.
(7) Buffering, with reference to type, location, and dimensions. The board of adjustment
shall exercise ultimate discretion as to whether adequate buffering has been
provided.

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(8) Signs, if any, and proposed exterior lighting, with reference to glare, traffic safety,
economic effect, and compatibility and harmony with properties in the district.

(9) Playgrounds, open spaces, yards, landscaping, access ways, and pedestrian ways,
with reference to location, size, and suitability.
(10) Buildings and structures, with reference to location, size, and use.
(11) Hours of operation, with particular reference to protecting and maintaining the
character of the neighborhood.
(h) Decisions. All board of adjustment decisions shall be made in accordance with N.C. Gen.
Stat. § 153A-345.1 or as amended.
(i) Inspections. The zoning administrator shall make period ic inspections during construction
as well as a final inspection after construction is complete to determine whether the conditions
imposed and agreements made in the issuance of the permit have been met as well as whether all
other requirements of this article have been met.
(j) Changes; limitations. Minor changes in the location, siting or character of buildings
and structures may be authorized by the zoning administrator, if required by engineering or other
circumstances not foreseen at the time the final development program was approved; provided,
however, that no change authorized by the zoning administrator under th is section may increase the
size of any building or structure by more than ten percent, nor change the location of any building or
structure by more than ten feet in any direction, nor make any changes beyond the minimum or
maximum requirements set forth in this article. All other changes, including changes in the site plan
and in the development schedule, must be submitted to the board of adjustment. In no case shall the
following changes be made without resubmission of the development plan according to the
procedures in this section:
(1) A change in the use or character of the development.
(2) An increase in overall density.
(3) An increase in intensity of use.
(4) Alteration of the traffic circulation system.
(5) A reduction in approved open space.
(6) A reduction of off-street parking and loading space.
(k) Lack of development; effect on permit. Conditional use permits shall retain vesting in
accordance with N.C. Gen. Stat. §153A-344.1 or as amended.

Sec. 78-678. Uses by right subject to special requirements and conditional use
standards.
(a) Uses by right, subject to special requirements (SR) . Uses by right, subject to special
requirements (SR) are uses permitted by right, provided that the specific standa rd s set
forth in this section are met. The specified standards are intended to ensure these uses fit
the intent of the districts within which they are permitted , and that these uses are
compatible with other development permitted within the specified zoning districts.

(1) Bed and breakfast inns. Standards for bed and breakfast inns shall be as follows:

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a. Signage. Signage is limited to a single sign , not to exceed eight (8) square feet,
with a maximum height of four (4) feet.

b. Parking. Parking shall only be located in side and rear yards and is subject to
the off-street parking requirements located in Table 3 of Sec. 78-658.

c. Buffering. Property line buffering must meet the requirements described in Sec.
78-667 and parking areas must be screened from adjacent properties through
the use of vegetation or solid fencing.

d. Occupancy. Bed and breakfast inns are limited to no more than ten (10)
occupants.

(2) Day nursery and private kindergarten . Standards for day nursery and private
kindergarten shall be as follows:

a. Signage. Signage is limited to a single non-lighted sign , not to exceed eight (8)
square feet, with a maximum height of four (4) feet.

b. Enrollment. Maximum enrollment is limited to eight (8) children.

c. Drop-off areas. Drop-off and pick-up areas shall not obstruct traffic flow on
adjacent streets.

d. Parking. Parking shall only be located in side and rear yards and is subject to
the off-street parking requirements located in Table 3 of Sec. 78-658.

e. Buffering. Property line buffering must meet the requirements described in Sec.
78-667 and parking areas and outdoor play areas must be screened from
adjacent properties through the use of vegetation or solid fencing.

(3) Travel trailer parks. Standards for travel trailer parks shall be as follows:

a. Travel trailers. No travel trailer may be permanently affixed or utilized as a


permanent single-family residence. No single trailer may be located within the
park for more than 180 days out of any given calendar year.

b. Spacing. Travel trailer spaces must be clearly identified on the site plan and
delineated within the park through the provision of a physical boundary marker or
designated pad. In no case shall a travel trailer be placed within 20 feet of
another travel trailer.

c. Buffering. A buffer consisting of evergreen trees or shrubs shall be provided


against all adjacent properties, but shall not extend beyond the established
setback line along any street. Such buffer strip shall be no less than four (4) feet
in width and shall be composed of trees or shrubs of a type, which at maturity
shall be not less than six (6) feet in height. This planting requirement may be
modified by the zoning administrator where adequate buffering exists in the form
of vegetation and/or terrain.

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d. Waste management/dump station(s).
1. The park owner/operator shall provide capacity for a weekly accumulation
of solid waste and recycling on site through the provision of dumpsters or
acceptable containers. These dumpsters or other acceptable containers
must be serviced at least once a week, unless the park has been vacant
for the entirety of the week. These dumpsters shall not be located within
any required setbacks.
2. The park owner/operator shall provide for adequate waste disposal
through the provision of dump stations. Dump stations shall be inset at
least 20 feet from all property lines and must be permitted by NCDENR
prior to installation.

e. Any lighting to be provided within the park must be indicated on the site plan and
adhere to the lighting standards as set forth within section 78-668.

f. At least one (1) bathroom and shower shall be provided within a permanent
structure. If the park does not provide full water and sewer hookups at each site,
one (1) additional bathroom and shower shall be provided for every ten (10) travel
trailer spaces in the park without water and sewer connections .

g. Documentation from the Fire Marshal shall be provided of the adequacy of the
development's facilities for emergency medical and fire services.

(4) Motor vehicles impoundment lots and tow yards. Standards for motor vehicles
impoundment lots and tow yards shall be as follows:

(a) Motor vehicle storage area. The motor vehicle storage area shall be enclosed
within a security fence of at least six feet in height. The vehicle storage area and
fence shall not be located within any required setback.

(b) Buffering. The perimeter of the fence required in subsection (a) above shall
be buffered by a row of evergreen trees . The trees shall be at least four (4)
feet in height at the time of planting and shall be planted within eig ht (8) feet
of the outer side of the fence . The trees shall be planted at inte rvals evenly
spaced and in proximity to each other so that a continuous, unbroken
hedgerow, without gaps or open spaces, will exist to a height of at least eight
(8) feet along the length of the fence surrounding the storage area when the
trees reach maturity. This planting requirement may be modified by the zon ing
administrator where adequate buffering exists in the form of vegetation and/or
terrain.

(b) Conditional Use Standards. Before issuing a conditional use permit the board of
adjustment shall find that all standards for specific uses listed in this section , as well as all
procedures listed in section 78-677, have been met. The following standards are applied to specific
conditional uses:

(1) Public or Private utility stations; radio, TV and telecommunications towers; water and
sewer plants; water storage tanks. Standards for public or private utility stations,
radio, TV, and telecommunications towers, water and sewer plants, and water
storage tanks shall be as follows:

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a. Structures shall be enclosed by a woven wire fence at least eight feet high. This
does not apply to photovoltaic cells which are incorporated as structural
elements of other facilities.
b. The perimeter of the fence required in subsection (a) above shall be
buffered by landscaping vegetation . Vegetation not less than two (2) feet in
height at the time of planting shall be planted w ithin eight (8) feet of the oute r
side of the fence. Vegetation that serves as screening shall be planted at
intervals evenly spaced and in proximity to each other so that a continuous,
unbroken hedgerow, without gaps or open spaces, will exist to a height of at
least six (6) feet along the length of the fence surrounding the facility. This
planting requirement may be modified by the board of adjustment where
adequate buffering exists in the form of vegetation and/or terrain .
c. Emergency contact information for the owner/manager of the facility shall be
prominently posted at the site.
d. A plan for decommissioning of the facility should the facility become non-
operational for a period of more than 365 consecutive days shall be presented to
the board of adjustment. The plan shall describe how the site will be returned to
its pre-development condition and shall present a mechanism for fund ing the
decommissioning.
e. Facilities using wind as a means of electricity generation must be appropriately
separated from existing residential communities and structures. The applicant
must present an area map which depicts the proposed facility and the closest
residential structures. The map shall be to scale and shall also show publicly
maintained roads within the area.
f. At locations where the facility will exist alongside other uses, the applicant must
include a description of the other uses which will occu r on the site and how
public safety will be guaranteed.
g. For facilities located within 5 linear miles of any aviation facility, the applicant
must provide a solar glare analysis (such as the Solar Glare Hazard Analysis
Tool available through Sandia National Laboratories) that demonstrates that the
installation does not pose an imminent threat to flight operations. Additiona lly,
the applicant must demonstrate that the proposed structures do not interfere with
flight operations. The applicant must also provide proof that a copy of their
analysis has been submitted to the aviation facility operator.
h. For facilities located within 1,320 feet of a NC or US hig hway (inclusive of
Interstates) or within the Blue Ridge Parkway Overlay, the applicant must
provide proof from a qualified professional, which may include the highway
operator, that the facility does not pose an imminent threat to users of the
highway.
i. For facilities located within the Steep Slope/High Elevation or Protected Ridge
Overlay Districts, the applicant must quantify and provide documentation of the
tree coverage and species removed . When development is to occur within either
Overlay District listed above, the limitations on disturbed and impervious area
shall be applied to the parcel as a whole.
j. All facilities must provide certification from an engineer or the manufacturer of

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the equipment that equipment to be utilized will not create electromagnetic
interference (or other signal interference) with any radio communication or
telecommunication system, aircraft navigation system , or radar system .
Facilities utilizing wind as a means of electricity generation must submit a
microwave path analysis performed by a Federa l Communications Commission
recognized frequency coordinator.
k. All facilities must register with other state and federal agencies as required;
proof of this registration (including applicable submissions for analysis by the
Federal Communications Commission or Federal Aviation Adm inistration) must
be provided to the board of adjustment.

(2) Kennels. Standards for kennels are as follows:


a. The animal kennel , including all structures and fencing, shall be set back at least
50 feet from all external property lines of the facility.
b. The kennel facility shall be enclosed within a security fen ce of at least six feet in
height. The fence and facility may require a vegetation buffer along any part of
the fenced areas where sufficient visual buffering does not exist. The board of
adjustment shall determine the buffer requirements.
c. Provisions for daily removal and/or disposal of all animal waste shall be
incorporated within the operation and maintenance of the animal kennel.
d. The design and operation of the facility shall be reviewed and approved by the
state department of agriculture.

(3) Junkyards. Standards for junkyards shall be as follows:


a. Junkyards shall be surrounded by a fence at least eight feet in height.
Vegetation shall be planted on at least one side of the fence and contiguous
to the fence. The vegetation shall be of a type that will reach a minimum
heig ht of six feet at maturity and shall be planted at intervals evenly spaced and
in close proximity to each other so that a continuous , unbroken hedgerow will
exist to a height of at least six feet along the length of the fence surrounding
the junkyard when the vegetation reaches maturity. Each owner, operator, or
maintainer of a junkyard shall maintain the vegetation and fencing. Dead or
diseased vegetation shall be replaced at the next appropriate planting time.
b. The fence shall have at least one and not more than two gates for purposes of
ingress and egress. The gates shall be closed and securely locked at all times,
except during business hours.
c. Junkyards shall also be subject to compliance with chapter 26 , article Ill, of this
Code, as may be amended.

(4) Solid waste management facilities. All solid waste management facilities used
for the disposal of solid waste shall meet the requirements and specifications of
the N.C. Department of Environment and Natural Resources. A set of approved
plans shall be submitted along with the application for the conditional use permit.

(5) Travel trailer parks. Travel trailer park standards shall be as follows:

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a. Travel trailers. No travel trailer may be permanently affixed or utilized as a
permanent single-family residence. No single trailer may be located within the
park for more than 180 days out of any given calendar year.
b. Spacing. Travel trailer spaces must be clearly identified on the site plan and
delineated within the park through the provision of a physical boundary marker
or designated pad. In no case shall a travel trailer be placed within 20 feet of
another travel trailer.
c. Buffering. A buffer consisting of evergreen trees or shrubs shall be provided
against all adjacent properties, but shall not extend beyond the established
setback line along any street. Such buffer strip shall be no less than four (4)
feet in width and shall be composed of trees or shrubs of a type, which at
maturity shall be not less than six (6) feet in height. This planting requirement
may be modified by the zoning administrator or board of adjustment where
adequate buffering exists in the form of vegetation and/or terrain.
d . Waste management/dump station(s).
1. The park owner/operator shall provide capacity for a weekly
accumulation of solid waste and recycling on site through the provision
of dumpsters or acceptable containers. These dumpsters or other
acceptable containers must be serviced at least once a week, unless the
park has been vacant for the entirety of the week. These dumpsters
shall not be located within any required setbacks.

2. The park owner/operator shall provide for adequate waste disposal


through the provision of dump stations. Dump stations shall be inset at
least 20 feet from all property lines and must be permitted by NCDENR
prior to installation.

e. Any lighting to be provided within the park must be indicated on the site plan
and adhere to the lighting standards as set forth within section 78-668.
f. At least one (1) bathroom and shower shall be provided within a permanent
structure. If the park does not provide full water and sewer hookups at each
site, one (1) additional bathroom and shower shall be provided for every ten
(10) travel trailer spaces in the park without water and sewer connections.

(6) Planned Unit Developments, level I (PUDI). Planned unit development, level I
standards shall be as follows:
a. Purpose. The purpose of this section is to afford substantial advantages for
greater flexibility and improved marketability through the benefits of
efficiency which permit flexibility in building siting , mixtures of housing types,
and land use. Residential densities are calculated on a project basis,
thus allowing the clustering of buildings in order to create useful open
spaces and preserve natural site features.
b. Land development standards. The following land development standards
shall apply for all PUDls. PUDls may be located in the relevant districts as
conditional uses, subject to a finding by the board of adjustment that the

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following conditions are met:
1. Ownership control. The land in a PUDI shall be under single ownership
or management by the applicant before final approval and/or
construction, or proper assurances (legal title or execution of a
binding sales agreement) shall be provided that the development can be
successfully completed by the applicant.
2. Density requirements. There are no density requirements for
nonresidential uses as long as the proposed project does not violate the
intent of the district in which it is located. The proposed residential
density of the PUDI (dwelling units per acre as shown in section 78-642)
shall conform to that permitted in the district in which the development is
located. If the PUDI lies in more than one district, the number of
allowable dwelling units must be separately calculated for each portion
of the PUDI that is in a separate district, and must then be combined to
determine the number of dwelling units allowable in the entire PUDI.
When the PUDI is a community oriented development, the allowed
density shall be in accordance with Sec. 78-650.
3. Land uses. A mixture of land uses shall be allowed in any PUDI.
However, within residential districts, nonresidential uses shall be
carefully designed to complement the residential uses within the PUDI.
All PUDls must be compatible with and not violate the intent of the
zoning district; however, said uses may include uses not permitted under
Sec. 78-641 within the zoning district(s) within which the project is
located, provided that the board of adjustment finds that nonresidential
uses do not disrupt the character of the community.
4. Minimum requirements. Minimum requirements for land development
are as follows:
a. The normal minimum lot size and requirements for interior setbacks
are hereby waived for the PUDI, provided that the spirit and intent of
this section are complied with in a total development plan, as
determined by the board of adjustment. The board of adjustment
shall exercise ultimate discretion as to whether the total
development plan does comply with the spirit and intent of this
section.
b. Height limitations. The normal maximum structure height may be
waived for the PUDI, provided that unique elements of the
development impose requirements for additional height that are not
universal throughout the zoning district. Additionally, PUDls in
excess of the normal maximum height require that the spirit and
intent of this section are complied with in a total development plan,
as determined by the board of adjustment. The board of adjustment
shall exercise ultimate discretion as to whether the total development
plan does comply with the spirit and intent of this section. PUDls
within the Blue Ridge Parkway Overlay District may not contain
structures which exceed the maximum height allowed within the

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overlay district.

c. Required distance between buildings. The minimum distance


between buildings shall be 20 feet or as otherwise specified by the
board of adjustment to ensure adequate air, light, privacy, and space
for emergency vehicles.
5. Privacy. Each development shall provide reasonable visual and acoustical
privacy for all dwelling units. Fences, insulation, walks, barriers, and
landscaping shall be used, as appropriate, for the protection and aesthetic
enhancement of property and the privacy of its occupants, screening of
objectionable views or uses, and reduction of noise. Multilevel buildings
shall be located within a PUDI in such a way as to dissipate any adverse
impact on adjoining low-rise buildings and shall not invade the privacy of
the occupants of such low- rise buildings.
6. Perimeter requirements. Perimeter requirements are as follows:
a. Structures located on the perimeter of the development must be set
back from property lines and rights-of-way of abutting streets in
accordance with the provisions of the zoning ordinance controlling the
district within which the property is situated.
7. Parking. Parking requirements may be waived for the PUDI, provided
that the spirit and intent of this section are complied with in a total
development plan, as determined by the board of adjustment. The board
of adjustment shall exercise ultimate discretion as to whether the total
development plan does comply with the spirit and intent of this section.

8. Conveyance and maintenance mechanisms. Conveyance and


maintenance of open space, recreational areas and communally owned
facilities shall be in accordance with G.S. 47-1 et seq. the Unit Ownership
Act and/or any other appropriate mechanisms acceptable to the board of
adjustment.
9. Building envelopes. Building envelopes shall be shown on the submitted
site plan. Where flexibility in design of residential units is desired, the
building envelope shall indicate the maximum expanse of the proposed
footprint of the structure.

(7) Planned Unit Developments, level II (PUDll). Planned unit development, level II
standards shall be as follows:
a. Land development standards. The following land development standards
shall apply for all PUDlls. PUDlls may be located in the relevant districts as
conditional uses, subject to a finding by the board of adjustment that the
following conditions are met:
1. Ownership control. The land in a PUDll shall be under single
ownership or management by the applicant before final approval
and/or construction, or proper assurances (legal title or execution of
a binding sales agreement) shall be provided that the development can
be successfully completed by the applicant.

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2. Land uses. PUDlls must include only non-residential uses.
3. Dimensional requirements. Dimensional requirements for land
development are as follows:
a. Height limitations. The normal maximum structure height may be
waived for the PUDll, provided that unique elements of the development
impose requirements for additiona l height that are not universal
throughout the zoning district. Additionally, PUDlls in excess of the
normal maximum height require that the spirit and intent of this section
are complied with in a total development plan , as determined by the
board of adjustment. The board of adjustment sha ll exercise ultimate
discretion as to whether the total development plan does comply with the
spirit and intent of this section. PUD l ls within the Blue Ridge Parkway
Overlay District may not contain structures which exceed the maximum
height allowed within the overlay district.

b. Required distance between buildings. The minimum distance


between buildings shall be 20 feet or as otherwise specified by the board
of adjustment to ensure adequate space for emergency vehicles.

4. Parking. Parking requirements may be waived for the PUDll, provided


that the spirit and intent of this section are complied with in a total
development plan, as determined by the board of adjustment. The board
of adjustment shall exercise ultimate discretion as to whether the total
development plan does comply with the spirit and intent of this section.

(8) Asphalt plants. Standards for asphalt plants shall be as follows:


a. The parcel on which the facility is located shall be set back at least
2,640 feet from any parcel where a hospital; hospice facility; licensed
nursing home; licensed adult care home; licensed family care home;
drop-in or short term child care center providing care to at least 1O
preschool children; licensed child care center; private or public
elementary, middle or high school; or municipal or county park or
recreation facility is located.
b. The facility must comply with the Buncombe County Flood Damage and
Prevention Ordinance. But in no case shall production facilities or
storage of hazardous materials be located in the Special Flood Hazard
Area.
c. The area of operations shall be set back from all perennial waters, as
shown on the most recent version of the quadrangle topographic maps
prepared by the United States Geological Service, and from all
wetlands, as defined by G.S. 143-212(6) for a distance sufficient to
protect surface and groundwater from spills and leaks. Said setback
shall be a vegetative buffer no less than 100 feet in width, with no less
than the first 50 feet from the stream or wetland being undisturbed and
the remaining area consisting of managed vegetation.

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d. The facility shall be served by a public water system or situated a
sufficient distance from any water supply well to ensure public health
and safety. In all cases , the facility shall be located no closer to a water
supply well than the minimum separation distance specified by NC
Department of Environment and Natural Resources.
e. There shall be sufficient access to a major highway so as to minimize
truck travel through residential neighborhoods.
f. A buffer strip along all property lines shall be required that is sufficient
in height, density, and foliage at all times of the year to minimize the
visual impact to persons and motorists not on the property and to
maximize the buffering of noise and particulate matter. Said buffer strip
shall not extend into the established setback along any street. The
required buffer shall be placed according to one or a combination of the
following methods, as approved by the board of adjustment as fitting for
the use and surrounding areas:
1. A continuous, natural and undisturbed 100 foot buffer strip of trees,
shrubbery, and other natural vegetation .
2. A 100 foot planted buffer strip consisting of at least th ree rows of
evergreen trees, whose species sha ll be approved by the board of
adjustment, which at the time of planting shall be at least six feet in
height, and which at maturity, shall be at least fifteen feet in height.
In each row the trees shall be spaced no more than ten feet apart
(from base of tree to base of tree) at time of planting , with trees in
adjacent rows offset (staggered) five feet. The rows shall be no
more than thirty feet apart and centered w ithin the buffer strip. The
buffer strip shall also contain at least two evergreen shrubs for
every one tree and the shrubs shall be intermixed between the
trees.
3. An earthen berm landscaped with evergreen shrubs and topped
with a row of evergreen trees. The berm shall be a min imum of
eight feet in height and shall have slopes that do not exceed one
foot in height to three feet horizontal. The row of evergreen trees
shall be at least five feet in height at the time of planting and which
at maturity shall be at least ten feet in heig ht. The trees shall be
spaced no more than eight feet apart (from base of tree to base of
tree) at the time of planting. No less than two evergreen shrubs for
every tree shall be planted in two rows; the first row shall be
planted at the base of the berm. The second row shall be planted
at the midpoint of the berm and shall be offset (staggered) from the
first row.
The owner of the property on which the buffer is located shall be
responsible for the maintenance of said buffering. Unhealthy or dead
plants shall be promptly removed and replaced within one planting
season.

g. A security fence shall surround the entire production area , shall be a


minimum of six feet in height, and shall be located between the

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production area and the required buffer strip. Driveways or
entranceways shall be gated during the hours when the plant is not
open and operating.

h. The facility shall employ the most current, state-of-the-art methods,


systems, techniques, and production processes available in order to
achieve the greatest feasible air and odor emissions reductions,
including fugitive emissions and fugitive dust.

(9) Vacation Rental Complex or Rooming House. Vacation Rental Complex and
Rooming House standards shall be as follows:

a. Minimum distance between buildings. The minimum distance between


buildings shall be 20 feet or as otherwise specified by the board of
adjustment to ensure adequate air, light, privacy, and space for
emergency vehicle access.

b. Parking. Preliminary plans shall include parking provisions adequate for


the maximum number of guests proposed. Parking requirements shall be
at least one space for each two proposed guest rooms. Such parking
areas shall be visually screened with a vegetative buffer or fencing
adjacent to any single family residential development.

c. Signage. Freestanding signage shall be shown on the submitted plan and


shall not exceed ten square feet in surface area. Only one freestanding
sign is allowed.

d. Bathrooms. One bathroom must be provided for every four guest rooms.

(10) Bed and breakfast inns. Standards for bed and breakfast inns shall be as follows:

a. Signage. Signage is limited to a single sign, not to exceed eight (8) square
feet, with a maximum height of four (4) feet.

b. Parking. Parking shall only be located in side and rear yards and is subject to
the off-street parking requirements located in Table 3 of Sec. 78-658.

c. Buffering. Property line buffering must meet the requirements described in


Sec. 78-667 and parking areas must be screened from adjacent properties
through the use of vegetation or solid fencing.

d. Occupancy. Bed and breakfast inns are limited to no more than twenty
guests.

(11) Day nursery and private kindergarten. Standards for day nursery and private
kindergarten shall be as follows:

a. Signage. Signage is limited to a single non-lighted sign, not to exceed eight


(8) square feet, with a maximum height of four (4) feet.

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b. Drop-off areas. Drop-off and pick-up areas shall not obstruct traffic flow on
adjacent streets.
c. Parking. Parking shall only be located in side and rear yards and is subject to
the off-street parking requirements located in Table 3 of Sec. 78-658.
d. Buffering. Property line buffering must meet the requirements described in
Sec. 78-667 and parking areas and outdoor play areas must be screened
from adjacent properties through the use of vegetation or solid fencing.

Secs. 78-679--78-695. Reserved.

DIVISION 7. EXCEPTIONS AND MODIFICATIONS

Sec. 78-696. Compliance with article mandatory; generally.


Compliance with the requirements of this article is mandatory; however, under specific
conditions enumerated in the following sections, the requirements may be waived or modified as so
stated.

Sec. 78-697. Front yard setback for dwellings.


The front yard setback requirements of this article for dwellings shall not apply on any lot
where the average setback of existing buildings located wholly or in part within 100 feet on each side
of such lot within the same block and zoning district and fronting on the same side of the street is less
than the minimum required setback. In such cases, the setback may be less than the required
setback, but not less than the average of the setback of the aforementioned existing buildings.

Sec. 78-698. Completion of building under construction.


Noth ing in this article shall require any change in the plans, construction or designated use of
a bu ilding under construction at the date of the passage of the ordinance from Which this article
is derived. A building shall be deemed to be under construction upon the effective date of the
ordinance from which this article is derived if a building permit has been issued or if the zoning
administrator determines that sig nificant construction was completed prior to the effective date of the
ordinance from which this article is derived.

Sec. 78-699. Height limitations.


The height limitations of th is article shall not apply to church spires except as otherwise
provided in the vicin ity of airports. Maximum height limitations as defined in section 78-642 shall be
reduced in those areas affected by the Asheville Regional Airport in compliance with the Federal
Aviation Administration regulations .

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Sec. 78-700. Temporary uses.
Temporary uses such as real estate sales field offices or shelter for materials and equipment
being used in the construction of a permanent structure, may be permitted by the zoning
administrator, provided they do not create health, safety or nuisance hazards.

Secs. 78-701--78-715. Reserved.

DIVISION 8. AMENDMENTS

Sec. 78-716. Board of commissioners to amend article.

This article, including the zoning map, may be amended by action of the Buncombe County
Board of Commissioners in accordance with the provisions of this division.

Sec. 78-717. Initiation of amendments.


Proposed changes or amendments to this article may be initiated by the Buncombe County Board of
Commissioners, Buncombe County Planning Board, board of adjustment, zoning administrator or
other applicant. The board of commissioners, the planning board , board of adjustment, and the zoning
administrator shall not be required to make application to the zoning administrator in order to initiate a
change or amendment to this article. All proposed amendments to th is Article or zon ing map shall be
submitted to the planning board for review and comment; however, neither the planning board nor the
board of commissioners will consider a proposed change or amendment that was denied within the
preceding 12 months by the board of commissioners.

Sec. 78-718. Application and Planning Board Notice and Hearing.


(a) Before any action on a proposed change or amendment, an application shall be
submitted to the office of the zoning administrator at least 30 days prior to the planning board's
meeting at which the application is to be considered . The application shall contain the name(s) and
address( es) of the owner (s) of the property in question, the location of the property, and a description
and/or statement of the present and proposed zoning regulation or district. All applications requesting
a change in the zoning map shall include a description of the property in question .
(b) Before taking any action to recommend a change or amend this Article, the planning
board shall hold a public hearing on the proposed change or amendment. The county shall cause
notice of the hearing to be published once not less than 1O days nor more than 25 days before the
date fixed for the hearing. In computing such period, the day of publication is not to be included but the
day of the hearing shall be included.
(c) Whenever there is a zoning map amendment, the owner of that parcel of la nd as shown
on the county tax listing, and the owners of all parcels of land abutting that parcel of land as shown on
the county tax listing, shall be mailed a notice of a public hearing on the proposed amendment by first
class mail at the last addresses listed for such owners on the county tax abstracts. This notice must be
deposited in the mail at least 1O but not more than 25 days prior to the date of the public hearing.

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Except for a county-initiated zoning map amendment, when an application is filed to request a zoning
map amendment and that application is not made by the owner of the parcel of land to which the
amendment would apply, the applicant shall certify to the planning board that the owner of the parcel
of land as shown on the county tax listing has received actual notice of the proposed amendment and
a copy of the notice of public hearing . The person or persons mailing such notices shall certify to the
planning board that fact, and such certificate shall be deemed conclusive in the absence of fraud.
(d) The first class mail notice required under the preceding paragraph of this section shall not
be required if the zoning map amendment directly affects more than 50 properties, owned by a total of
at least 50 different property owners, _and the county elects to use the expanded published notice
provided for in this subsection. In this instance, the county may elect to either make the mailed notice
provided for in the preceding paragraph or may as an alternative elect to publish notice of the hearing
as required by 78-718(b), but provided that such advertisement shall not be less than one-half of a
newspaper page in size. The advertisement shall only be effective for property owners who reside in
the area of general circulation of the newspaper which publishes the notice. Property owners who
reside outside of the newspaper circulation area, according to the address listed on the most recent
property tax listing for the affected property, shall be notified according to the provisions of ·sec. 78-
718(c) above.
(e) When a zoning map amendment is proposed, the county shall prominently post a notice
of the public hearing on the site proposed for rezoning or on an adjacent public street or highway
right-of-way. When multiple parcels are included within a proposed zoning map amendment, a
posting on each individual parcel is not required, but the county shall post sufficient notices to provide
reasonable notice to interested persons.

Sec. 78-719. Purposes in view.

Prior to consideration by the board of commissioners of a proposed zoning amendment, the


planning board shall advise and comment on whether the proposed amendment is consistent with any
comprehensive plan. The planning board shall provide a written recommendation to the board of
county commissioners that addresses plan consistency and other matters as deemed appropriate by
the planning board, but a comment by the planning board that a proposed amendment is inconsistent
with the comprehensive plan shall not preclude consideration or approval of the proposed amendment
by the board of commissioners.

If no written report is received from the planning board within 30 days of referral of the
amendment to that board, the board of county commissioners may proceed in its consideration of the
amendment without the planning board report at a public hearing as provided below. The board of
commissioners is not bound by the recommendations, if any, of the planning board.

Prior to adopting or rejecting any zoning amendment, the board of commissioners shall adopt
one of the following statements which shall not be subject to judicial review:
1. A statement approving the zoning amendment and describing its consistency with an
adopted comprehensive plan and explaining why the action taken is reasonable and in the
public interest.
2. A statement rejecting the zoning amendment and describing its inconsistency with an
adopted comprehensive plan and explaining why the action taken is reasonable and in the
public interest.
3. A statement approving the zoning amendment and containing at least all of the following:
a. A declaration that the approval is also deemed an amendment to the comprehensive
plan . The board of commissioners shall not require any additional request or

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application for amendment to the comprehensive plan.
b. An explanation of the change in conditions the board of commissioners took into
account in amending the zoning ordinance to meet the development needs of the
community.
c. Why the action was reasonable and in the public interest.

Sec. 78-720. Public hearing before the board of commissioners.


(a) Before taking any action to adopt, amend, or repeal any part or portion of this Article, the
board of commissioners shall hold a public hearing on the proposed adoption , amendment or repeal
of any part or portion of this Article. The board of commissioners shall cause notice of the hearing to
be published once a week for two successive calendar weeks. The notice shall be published the first
time not less than 10 days nor more than 25 days before the date fixed for the hearing. In computing
such period , the day of publication is not to be included but the day of the hearing shall be included.
Further, before taking any action on a proposed adoption, amendment, or repeal of this Article, the
board of commissioners shall consider the planning board's recommendations, if any, on each such
proposed action.
(b) Whenever there is a zoning map amendment, the owner of that parcel of land as shown
on the county tax listing, and the owners of all parcels of land abutting that parcel of land as shown on
the county tax listing, shall be mailed a notice of a public hearing on the proposed amendment by first
class mail at the last addresses listed for such owners on the county tax abstracts. This notice must be
deposited in the mail at least 1O but not more than 25 days prior to the date of the public hearing.
Except for a county-initiated zoning map amendment, when an application is filed to request a zoning
map amendment and that application is not made by the owner of the parcel of land to which the
amendment would apply, the applicant shall certify to the board of commissioners that the owner of the
parcel of land as shown on the county tax listing has received actual notice of the proposed
amendment and a copy of the notice of public hearing. The person or persons mailing such notices
shall certify to the Board of Commissioners that fact, and such certificate shall be deemed conclusive
in the absence of fraud .
(c) The first class mail notice required under the preceding paragraph shall not be required if
the zoning map amendment directly affects more than 50 properties, owned by a total of at least 50
different property owners, and the county elects to use the expanded published notice provided for in
this subsection. In this instance, the county may elect to either make the mai led notice provided for in
the preceding paragraph of this section or may as an alternative elect to publish notice of the hearing
required by Sec. 78-720(a), but provided that each of the advertisements shall not be less than one-
half of a newspaper page in size. The advertisement shall only be effective for property owners who
reside in the area of general circulation of the newspaper which publ ishes the notice. Property owners
who reside outside of the newspaper circulation area, according to the address listed on the most
recent property tax listing for the affected property, shall be notified according to the provisions of Sec.
78-720(b) above.
(d) When a zoning map amendment is proposed, the county shall prominently post a notice of
the public hearing on the site proposed for rezoning or on an adjacent public street or highway right-of-
way. When multiple parcels are included within a proposed zoning map amendment, a posting on
each individual parcel is not required , but the county shall post sufficient notices to provide reasonable
notice to interested persons.

91

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/ IO
Buncombe Co.unty Planning & Development
r-r-// Application 'for a Conditional Use Permit (CUP)
PLEASE NOTE:
A PRE·SUBMJITAL CONFERENCE WITH THE ZONING AO~INJSTRATOR IS REQUIRED
PRIOR TO SUBMITTING THIS APPLICATION FOR A CONDITIONAL USE PERMIT

Please complete all sections ofIlle appllcat/011. Application Fee: S250 plus $25 per additional lot plus
$200 per e~ch additional 25 acres
A. Prnpcrly l11forma1io11

PIN(s): %68-98-574"/ ( 'i.62 1) & 9668-99··7242 (23.771)

Address(~s): 423 1vloffill .Rt>lld Ai;lwville. NC 28805

Project Name: The Rcsid~11c~s at RiwrPurk

Acreage: _3_1_... . .,3. 9. 2. _ _ _ _ _ __

U. Applic~1tio11 fol' Cond ilional llsc )'(.•t·mil


Application is hereby made to the Board of Adjustm~nt to l.ssue a Condition.al Use Pem1it for use of ahe
properly described above as a (please provide a briefdescription ofthe use):
The lltttlti-fomily l't!Sidentinl aparll\lClll and dupkx dcvclopmenl rnnsisti11g or lc11 (I 0) - 20 un it
apn1·1111en1 buildings & seven (7) duplex huil<li1u1s for a total or 214 units as well ns a comnHtnilv
cli1bhol1sc uncl pool on J 1.392 at:rcs with in the R-2 Zouinu Dislricl.

C. Applkant Co11tncl l11fol'111ntio11 D. Owner Conl:H·t l11for111:11io11 (({tlilfi't£'1J/)

RAB Builckrs 1.1.C


Company/Corporate Name (If applicable)
ivt_ic.lwc I Puscv Li1111wr I'ropertie:'i Ll..C
Applicant's Name Owner's Na•i•e
I 6 F0t1r Mjlc Brunch I ,a11,~ 33'/ Schooner Lnne
Malling Address Mafling Address

Sparfanhun• . SC '.N'.HI } ( '.arbondalc. CO 8 1623, 861-5


City, State, and Zip Code City, State, and Zip Code
( 828 ) 545 - 8200 ( )
Telephone Telephone

m ic Ime I.poscyf<1~c111p11 c.111~1


Email . Enmll

OFFICE USE ONLY:.


Pre-Submittal Conference Date: _ _ _I ..;c~;._;__(1....::8:......~--

·.. Buncombe Coun1y Plnnnlng & Dcvelopmcn(, ~6 Vnllcy S_trccl 1 Asheville, NG 28801~-~~~!!l!!!!!I•~
j> (828) isli-4830 I www.bunc-on1becou11fy.org PLAINTIFF'S
EXHIBIT
I B
Case 1:19-cv-00182-MR-DSC Document 1-1 Filed 06/07/19 Page 105 of 122
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. ., 11

E. CONDITIONAL USE PERMIT APPLICATION CHECKLIST


t, tbe petitioner, submit a slte-speclflc dewlopment plan eontalnln& tbd0Uowf111 lnformadou (Please mark 'NA'
by any requirement that ls not applicable and provide a briefstatement as to why It is not applicable. Failure to submit a
complele application will result in removal from the Board of Adjustment agenda):
mJ Development Planu
m One ftdl sized copy otth1:1 development plBn to scale and elated.
m 11 copies ofthe development plan reduced to ellher l P'x I?'' or 8.S"x 11".
ro A digital version ofthe development plan in pdfformat.
RI A atatement of present and proposed ownenhlp.
m Development sohedulc lndlcatlns approximate beginning and completion dates ofthe development, inoludlng any
proposed stages. ·,
m Statement of the applicant's intentions regarding future sales and/or leasing ofall or portions oftho development.
m Quantllatlvo data for the following: proposed total number and type ofresldential d~Jllng units, parcel size,
~ gross residential densities, and the total amount of open space.
ra Plan for maintenance ofcommon areas, recreation areas, open 1paces, streets and utlllties.
m For comrnucial structw'eS in PUI>s, archlteetural renderings ofall principal bulldlnga, drawn to a known scale.
Elevatlon Jaldcrings of the alte, to scale, fbr any retaining wall system proposed Co provide a cumulatlvc vertlcal
relief ln excess of to• In height showing landscaping, vegetative weening, and the Cop and bottom of the wall at
grade. ·
m Site Conditions:
I*-\ m Bxlstlng 1!10 conditions including the following Jfapplloable: contours. watercoUJ'iCS, identified flood hazard
areas. and any unique natural or marunade features.
w Boundary lines ofthe proposed dcvolopment. lot llnoa, and plot design.
Iii Proposed location and use ofall exlsling and proposed ICruotures, lncludlng tho looatlon ofany proposed reialnlng
walls. Tho maximum height of any retainlns wall shall be shown on the proposed site plan.
m Location and size ofall areas to be conveyed, dedlealed. or reserved as oommon open space, parks, recn:atlonal
areas, rdtool sites. and similar public and semlpubllo uses.
m Locations and/or nolatlon ofexistingand proposed easements and rights-of-way,
m Zoning district in which the project Is located.
w Infrastructure:
m Existing and proposed street system, Including the locallon and number ofoff-street parklns spaces, service areas,
load Ing areas, and major points ofaccess to the public right-of-way.
w Nolatlon ofthe proposed ownership ofthe strut syatem (pub/le or private).
~ Documentation from the Buncombe County Plre Marshal Indicating the adequacy ofthe development's faollltles
for emergency medical and fire services.
m Approximate Jocatlon ofpropoaed utJlily systems, lncludlng documentation ofwator and sewer avaUablllty.
m Documentation of pre-application oonf'erences wllh lhe Sedimentation and Erosion Control and Stormwater
Management offices (where reqt1lred).
ra Perimeter and Adjacent Use11
m Proposed treatmenl of the development's perimeter Including materials/techniques (ex: scree11S,fanoe:1, 1vaffs).
m Information on adjacent lands: land use, zoning classifications, public fkcllltles, and any unlquo natural features.
~
Buncombe County Planning & Development, 46 Valley Street, A1bevlllo, NC 18801
P (828) 2So-4830 I www.bunccunbccounty.or&

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. I
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·"""· Ii', CONDITIONAL USE PERMIT B.U.RDEN OF PROOF


In the spaces provided below, indicate tile facts you intend to demonsh·ate and the arguments that you intend
to ma~e to demonstl'ate to the Board that -it can p1operly grant the Conditional Use Permit as provided for in §78-
677(g) Pl'oceduresfor obtaining a Conditional Use Permit, Co11dlllons for granting approval. The Board of
Adjustment does not have unlimited discretion in deciding whether to grant 11 Conditlonaf Use Permit.

/f11e.cessa1y please provide the informa/1011 011 a separate sheet ofpaper. W/Je>'e applicable, indicate ifa
requirement does not apply. lf thts i~ a revision to a previous6• approved Conditional Use Permit 011.d the answers
to the s~atemrmts below have not cha11ged, indicate '110 changeji·om prevloi1s approval' 111 the space provided..

I. Indicate how the proposed CUP will not adversely affect the health or safety of persons residing or working in
the neighborhood of the proposed CUP:
Tlw propm>c<l dcv1:!np111cnt \\'ill proyjrk :1 1mjch rwc:jkcl l't~<:jtlenlja! rcnlnl oplion on A~heyj!le's ea.~ ! side lhnt
will provick lifcslylc umcnitict> including <t workout focilily iu the con1m1111i1y club huus~. a pool nml nnlun:
lrnils along. the Swa1111nnoa IUvcr, promoting heahhier living and com111u t1ily socinlization .

2. Indicate how the proposed CUP will not be detrimental to the public welfare or jnjurious to property or public
improvements in the neighborhood of the proposed CUP:
The dcydnpmcnj is 20'- J00' in c l~va lion ahnve Moflil! R«m.d 011 lhc ridge and is bulforcd alo1w ii:> pcrirnell.•r
,-... wilh exi:;1i11g vcgclalion nncl mnture trees 50' min. towards lhc south & wes l incrcm;fog to o\'er 150' 10 !he
n~irth & ens I. The proposed illlprovc111t: nls urc also designed and localcu to avoid ex tremcly sleep slopes.

3. Indicate how the proposed CUP will not cause or have adverse effects on surrounding properties due to noise,
vibraUon, odor, or glare effects:
~' There will l>c minimal noise, vibral i<)n nnd/or udor crctitcd.bv lhis rl!si<lc111i11f com1111111itv. Sl:indard
residential services, sui;h ns !rash pick up, will be provi<lcd. F111i cut-off lighting lixturcs <IS well as the
exle11sive buffer around lhc p1~rimctcr or tlcvclop111e111 wilJ dimina1 c :lily glare effe1~1s from the community.

4. Indicate how satisfactory -ingress and egress to·the property and proposed structures thereon with particular
reference to automotive and pedestrian safety and convenience, traffic flow and control have been provided or
how the items listed are not applicnble to the proposed CUP:
l ll!' pmpcrty t' lll!'illlf"l' .shall lllt' CI NC ' DOT rl'q11i1ymPll(S :11111 jnftornal vd>ic1ilar l' irr11lulinn shall provid1'·
adequate ~- \\·ay lrnlfa· How and parking. Sidewalk conneclivily :;lrnll be provided from rcsidcniial .unit~ lo
(:(\l)l!Jlllllify all\l'llitic:; nm! snrc, wdl-mnrkl'd nnct signed Cl'OS!IW;tlk :wccssing lrnils along lhc Swn111w11oa Rivc r.
Pl1~asc rclcrcnce ITilllrl' S1udy Prepared l>y .11\rl 'I c:iguc hngmcc-n ng.

t"""'-
·. ._
. Duncombe County l'lnnnlng & Develbp1111m1 1 46 Vnlley Street, Aslicvllle, NC 28801
r (828) 250-4830 /www.buncombccouncy.01·g

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S. Indicate how off-street parking and loading areas are proposed to be provided, with particular attention to .the
Items in §78-658 of the Buncombe County Zoning Ordinance or how the Items listed are not applicable to the
proposed CUP:
The developnmn1 proyjdcs o[-s!rc:c! parking foj· rnsjdcn!jnl np1111mcnf uni rs nl a rntio of I 6 spnccs per 1111j1
tno spaces). duplex units 111 u ratio of 2 spaces pur unit (28 spaces) at' well ns <>additional spaces dcsigmucd
for the Community Clubhom;e for u totnl o!'354 spnccs.

6. Indicate how adequate and proper utilities. with reference to locatJons, availability, and compatibility are to be
provided or how the items listed are not applicable to the proposed CUP:
The d1•vclopmcnf has n1•1•ess to <'ii)' or Ae;hcvillc public• u111tcr via ii µonlcrlinc• c•)(IPpSinn from lb1•
intersection of River View Pnrkwny and Moffitt Road. MSD Sunilary Sewer rnns :tlong the property's
fronlnge on the Swnnnnnon River uml access to ii shnll be ncnr the prope1·1y cntmnce to the south.
C:ompnhblhly will 6e met 6y nil apphcnblc codes nncl stnndnras lor Ifie urea.

7. Indicate how buffering, with reference to type, locaUons, and dlmenslom will be provided or how It is not .
applicable to the proposed CUP:
The silc wi II he bul'fored ulonu it's pc1'in1c1cr with cxjstimi vecctation mul maturn trees 50' mjn. townrds
the south & west incr.:asing to over 150' to !he not1h & east. Any l11tf0rt:ia:e11 disturbance nloug the perimeter
shall he rcvegcluted nnd buffered to meet or exceed the requirements of the Buncombe county Zoning Ordinance.

8. Indicate how signs, if any. and proposed exterior Jighting with reference to glare, traffic safety, and economic
effect will be compatible and harmonious with proportles In the area or how the Items listed are not applicable
lo the proposed CUP:
A low momuncnt si\!11 shall be plnced to the left I uorlh ol'!he entmnce road jn u locntjon not to obstruct
view of traffic with low voltngc lighting lowurds the sign. All interior development lighting provided
shall be full cul-off fixtures lo eliminnlc glare cflecls.

9. Indicate what playgrounds, open spaces, yards. landscaping, access ways, and pedestrian ways are proposed,
with reference to location, size. and suitability in relation to the proposed CUP or how the items listed are not
appJlcabte to the proposed CUP:
Tiu~mo hi 0111:n :;pace wrn b,, !he prciwrvalion ot'7 6') I AC, Poree! Pin# <)66!~-98-«;?47 nlong tlu~
Swmmanou River. Additional open space (±8 AC) is in the l'orm of the prcscrvntion of the nulural vegctution
I Buffer along the perimeter of'thc tlcvclopment (lll Purccl Pin # 96<iR-9lJ-7242 along with the Community
Clubhouse nnd pool. All other arens \viii be lnndscnped per the Buncombe Counfy Zomng Ordmunce.

Buncombe County Planning & Development, 46 Valley Street, Aahevllle. NC 28801


P (828) 2!0-4830 I www.buneombec0unty.org

Case 1:19-cv-00182-MR-DSC Document 1-1 Filed 06/07/19 Page 108 of 122


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I0. Describe bLJilding(s) and str.ucture(s) with reference lo loctttion, size, and LJSe and how the prnposed buildings
would be compatible with the s1mounding neighborhood or how the items listed are not applicable fo the
proposed CUP:
All Apnrluw11t hqildinps have. a similar fi>nlprjnt. with 11j111~ ICJ) al :!:.12.SOO SF nnd oue (I lat :t I 0 ."\00 SE.
The building:; lrnw h1;e11 locntcd and pm;itioncd lo :1ccommodate. n 2/3 unit split (2 s1rn·ics i.n front :ind 3
Storie:; in lht l't~nr) with (I hL~ighl 1101 lo CXl!cccl 35' al the :::(reel. All clupll~.x slniclure~; hnw n t:imilar footprinl nr
3: 1,ollOSI· wli 11 a main revel and 11 h1WLW h~vcl and the C<'mmunlly dubhou~c has a IOolpnnt ol :t- 2 , IOU SI· with :1
main lt:ve! :11i1! p1~1 e11tinlly a lllWvl' le,·el..
11. Describe the hours of operalion of the proposed use and how those lloul'S will protect and maintain the character
of the surrounding neighborhood or how the hours of operation are not applicable to the proposed CUP:
The Com1mmil)' C l11bhp11se ji: llw. only hniltlini: Owl applies nud would he opm1 from 811. ll! 111 8 n;111. <!oily .
Tl.1csc nrc similar opcrnling hours as lhc s11rrou11di11g nrcn.

G. ADDITIONAL CONDITIONAL USE STANDARDS

Before issuance of a conditional use permit for one of the specific uses llsted in §78-678(b) Conditional Use
Standards of the Buncombe County Zonin~ Ordinance, additional standards must be met.

The petitioner shall be requh'cd to submit nn nddltional form specific lo the use, in order to assure these
conditions are met. An application for a ~e liste.d In §78-678(b) shall not be deemed complete without the
add!tional fonn.
Failure to submit the complete additional form(s) required for specific conditional uses Will result in 1~moval
from the Board of Adjustment agenda

JI, CERTIFJCATION

Signature of Petitioner i
Mnn:h 12 201 8 j
Montl1 Day Year


Duncon1be County Plnnning & Dcvelopmcnl, 46 Valley Streel, Asheville, NC 28801
P (828) 250-4830 /wmv.buncombecounty.org

Case 1:19-cv-00182-MR-DSC Document 1-1 Filed 06/07/19 Page 109 of 122


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JS
Buncombe County Planning & Development
Application for Additional Conditional Use Standards:
Level I Pla·~ned Unit Development (PUDI)

Please compfele all secliofls oftile npp/icnt/0~1.


A. Pro1>crty lnfonnation :

PIN(s): %68~98-5747 17.621) &. 9668-99-7242 (23.77 J)

Address(es): :I?\ fyloffi1.1 Road •\.-:lwvilk. NC 2~8(!S

Prpject Name: The Resicl!!ni:cs al RiverPn1'k

Acreage: _."""31..,.3-...9....2...__ _ _ __

B. Applicatio11 for ll LcY('l } Plant1l'CI Unit Dcvclopmc11f


Application is hereby made to the Board ofAdjustment to issue a Conditional Use Pe~il f~r a L~vei f Planned
Unit Development (p/effse provide a brief4escrlptio11 of the project):
The mull Hi1mib n~sj<lcmt jnl aparlrncnl and duplex clcvclopnlimt rnu:ds!jng o!' lt~n (I()) - ?() 1111il
1

il))Hrlme11! hui!<li1tg:\ & SC\'C!l 17) dun(cX lniiJdjllf;\S for ;1 (O\HI pj' 214 llllil;; as \\'CJ) ;cs <l C()lll!l)ll!ljtv
clubhouse nnd pool 011 31.392 acres within the R-2 Zoninn Di1;tricl.

C. Applicanl Co11h11:1 Information I>. Owner C'onlncl l11fon11a(in11 (l{tli[/i.•rt!lll)

BA n B11ildqrn. 1,1.C'.
Company/Corpornte Name (If applicable)

ivlichad Ppsc.}' Linnwr i>rnpc1·1 ies I .LC


Appllcunt's Name Owner's Name
16 FourMilc Br;uich L.nnc 33'i Schooner Lt11H~
Malling Address Malling Address

Cnrbondiilc. CO X ! 6?..1-8615
City, Sciitc, and Zip Code City, State, an<l Zip Code
(
Telephone Telephone

Email · Email

OFFICE USE ONLY: ·

Date received: '3 L~6~ Case m1mber:2, {!ij:B.Q l~ J mJ.lS" Scheduled BOA Hearing: ':/:.Lil Ll&

Duncombe County J>hmning & Devclopmenf, 46 Vnllcy Stl'eet, A5bcvllle, NC 28801


P (828) 250"4830 /www.buncorilbecounty.org

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E. LEVEL I PLANNED UNIT DEVELOPMENT BURDEN OF PROOF


Before issuance ofa conditional use permit for one of the specific uses listed in §78-678(h) Conditional Use
Standards of the Buncombe Courity Zonin·g Ordinance, add.itional standards must be met. In the spaces provided
below. indicate the facts you intend to demonstrate and the arguments that you intend to make to demonstrate
to the Board that It can properly grant the Conditional Use Permit as provided for in §78-678(b)(6) ·co11ditfonal Use
SJa11dards, Planned Unit Developments, Level I (PUDJ); The Board of Adjustment does not have unlimited
discretion in deciding whether to grant a Conditional Use Pennit for 11 PUDI.
Ifnecessary ptovide tha Information on a separale sheet ofpaper. Where applicable, indicate if.a requlremenl does
1101 apply. Ifthis is a revision to apreviously approved Condllional Use Pennil for a PUD.J and Iha answers to the
11
stalements below have not changed, Indicate 110 change from previous appro11al" in the space provided.
1. Indicate ownership of the subject property. The land in a PUDJ shall be under single ownership or management
by the applicant before finAI approval and/or constr.uction, or proper assurances (legal title or execution of a
binding sales agreement) shall be provided that the development can be successfully completed by the ' \
applicant. . .
The properlv will be owned bv <l sinl.!le cnlily LLC. An ;1<treemcn1 li lts been executed .ou the lru\d. is currcptly
in 11 due dili!!encc period and will he closed u1m11 onci.: approval for the. development has bci:n gru1rted.

2. Indicate the toJal number of resid~ntial dwelling uoits and dwelling units per acre. Thete are no density
requirements for nonresidential uses as long as the proposed project does not violate the intent of the districl in
which it is located. The prop9sed ~si~ential de1lsity (!f the PUDJ (dwelling units pe1· acre I!~ shown in Secll~n
78·642) shall conform to that permitted ii1 th~ district in which the development is located. If the PUDJ lies 'in
more than one district, the numb.er of allowable dwelling u1ii1s must be separately calculated for each portio·n of
the PUDI that is in a separate district, and must then be coiubined to detennine lhe number of dwelling units
allowable in the entire PUDI. When the PUDJ is a community oriented development, the allowed density shall
be in accordance with Sec. 78-650.
Till~ deyclqpmcnl propoSt'.S ;>l.J dw1~11i11w llllits (l!J 11.19? m :·fi! S (!!] Mn1rn1 Bond. nuc mjle !!!!!'lh or lJs.·m.
The proposed clc nsily per <icrc is 1111d~r 7 unils which is less than the allo wable densi l)' i ii 11c<;ordnnce with
Section 78-650.

3. Indicate all proposed uses. A mixture of land uses shall be allowed in any PUDI. However, within residential
dl~rlcts, nonre.Sidentiai u·ses shall be carefully designed to complement the residential uses within the )>UDl.
All PUDis must be compatible wi!h and not violate the intent ofthe zoning district; however, said uses may
include uses not per1l'litted under Sec. 78-641 within the zoning district(s) within which the project is locnt~d,
provided that the Board of Adjustment finds 'thot nonresidential uses do not disrupt the character of the
community.
The ckvelopme nl cnmnris1:;; of 10 :i11arlmcnt li11 ildinits'. I duplex unit:; and i1 en n1m1q1j1 v cl uhhousc
with a pool.

Duncombe County Planning & Development, 46 Valloy Street, AshevlJle, NC 28801


P (82il) 250-4830 I www.lluncombecounty.org

Case 1:19-cv-00182-MR-DSC Document 1-1 Filed 06/07/19 Page 111 of 122


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4. Lot slui and setbacks shall be shown on the submitted site plan. The normal minimum lot size and requirements
for Interior setbacks are hereby waived for the PUDJ, provided that the spirit and Intent ofthfs section are
complied with in a total development plan, as determined by the Board of Adjustment.
All sctb<1cks nrc per B11nco1nbc County Zoning Ordlnn11ce ns shown on the planii.

S. Indicate the height of ail structures. The nonnal maximum structure height may be waived for the PUDI,
provided that wtlque elements of the development Impose requirements for additional height that are not
universal throughout the z.oning district. Additionally, PUDis in excess of the nonnal maximum height require
that the spirit and Intent of this section are complied with In a total development plat\ as determined by the
Board of Adjustment. PUDJs within the .Blue Ridge Parkway Overlay District may not contain structures which
exceed the maximum height allowed within the overlay district.
The opm1mpnl huildioi:s have.a ">/l unit splil C2 stories in front and 3 sl!)rj~:; in !he rcur) with u heigh! not
to exceed 351 nt the street. All duplex structures huve a a main le,•el & n towel' level and community
clubhouse hns a ni:iin level und potentially u lower level with u maximum hcighl of 201 at the street.

6. Indicate distances between bulldlngii. The minimum distance between buildings shall be 20 feet or as otherwise
specified by the Board of Adjustment to ensure adequate air, light, privacy, and space for emergenoy vehicles.
All npurtment buildings ure u minimum 35' clistunvc il!la1·1. with most 40'-50' nparl, All duplex units are n
minimum 3Ci' distance apurl from one ;mother. All openings for dwellings units ure oriented ri·om front lo
rear.

7. Indicate how the development provides reasonable visual and acoustical privacy for all dweltlng units. Fences,
Insulation, walks, barriers, and landscaping shall be used, as appropriate, for th~ protectton and aesthetic
enhancement of property and the privacy of its occupants. screening of objectionable views or uses, and
reduotlon of noise. Multilevel bulldln~ $hall be located within a PUDI In such a way as to dissipate any
adverse Impact on adjoining low-rise buildings and shall not invade the privacy of the occupants ofauoh low-
rise buildings.
Hnch unit will have n two hour scparn1ion wnll with u STC rnti11L\ between 55-59. 1!11ch unit will hnve u
privncy i;c1~cn ut their individual tlcck or p11tio.

8. Indicate conformance with perimeter setbacks. Structu~ located on the perimeter of the development must be
set back from property lines and rlghu-of-way of abutting streets Jn accordance with the provisions of the
zoning ordinance controlllng the dlS'trict withtn which the property is situated.
All setbacks 111·c per Huncomhc County Zoning On.ljnuncc as shown on the plans.

Buncombe County Planning & Development, 46 Valley Street, Albevllle, NC 28801


P (828) 251)..4830 I www.buncombecouaty.ore

Case 1:19-cv-00182-MR-DSC Document 1-1 Filed 06/07/19 Page 112 of 122


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9. Indicate the ru~ber of parking spaces proposed._Parking requirements may be waived for the PUDJ, provided
that the spirit and iment ofthis section al'e complied with in a total development plan, as determined by the
Board of Adjustment.
The dcvclopmcnl !)l'QVides ofi:.:mce1 park ill fl for rcsiclcn1ial :m:1r1mc111 u11ilr. nl a ratio or I .6 spac:e~ per u11il
(J20 spa_t:I!~), duplex uni1H 111 a ratio of2 i;paccs por unit (28 spaces) as well :is 6 udclilional spaces clcsignall.:d
for lhl' C'ommunily Ch1hho11se for a lolnl or ~511 sp;H:1~!'.

I0. Indicate proposed conveyance and maintenai:ice mechanisms. Conveyance and maintenance of open space,
recreational are11s and communally owned facilities shall be in accordance with G.S~ 47~ 1 et seq. the Unit
~- Ownership Act-and/or nny other appro_priate mechanisms acceptable to-the Board of Adjustment.
The communil}' will be m;1i11lai11e<l hy·on .. fiite i'liiff for nll open space ll!lll rcL:rnalional areas and he in
accordance with all provisions of'lhc ordinance.

~- 11. Building envelopes shalt be shown 011 the submitted site plan. Where flexibility in design ofresidential units is
desired, the bui_lding envelope shall Indicate .the maximuin expanse of the propose~ footprint of the structure.
'fh1< building .~uvlllop<'-s ' foofprin!~ h;l\'!' h1!l'-!l <kfrnnin i:d aud indjcah:d o n the plan~

F. CERTIFICATION

);:o 1 hereby certify that I am the owner, contractor, or t\Uthorized agent of the owner, and the above
information is correct to the best of my kn~wl~ge and hereby make application for a Condilionl\l Use
Permit for a PUDI. Any incorrect info1matfon will cause thtrr ·ap Jjcaijon-ro-b~enull and void.
).l> ! acknowledge that withdrawal of this application after n~ as been made will r ult In forfeiture of any
application 'fees associRted with said applicatio . <...J.f: J~:Jf .
Signature of Petitio er i

rvlnrdt
Month
12
Day
20I15
Year
J
~-
-Buncombe County Ph111nlng & Developntcnt, 46 Vnlloy StreeC, Asheville, NC 28801
P (828) 250·4830 I www.buneontbccouncy,org

Case 1:19-cv-00182-MR-DSC Document 1-1 Filed 06/07/19 Page 113 of 122


-40-

Buncombe County Government 19


Zoning Vested nJght

PJanning And Development 46 Vnlley Strl!ct


www.buncombecounty.org Asheville, NC 28801
Telephone (828) 250·4830
Fax (828) 250,6086

Please complete all sectfo11s oftltlsformfor flpp//c(lf/cm of a w11/11g vested right:.

A. CONT~CT INFORMATION

RAB Builder:;. LLC /Mic hael Posey J..inmnr Propcrlies LLC


Petitioner's Nume Owner's NRmri (if different from: Petitioner.)
16 four Mi It: Bnmch Lune ',,, Sd1pn11cr f .;1111}
Mailing Address Malllng Address

Spar11111burn. SC 29302 Carhnndale. CO 81623-861)


Town/City, Slate nnd Zip TowilfCUy, Sti1te and Zip

(828) 5115 - 8200


Telephone Telephone

111 i ch nel. p.osey(t1~cm pi 1c.nel


Email Address Emnil Address

OFFICE USE.ONLY:
Dnlc 1·ecloved: _ _ 3,._./._.l._.A.......,../~/._5?...___ __
C11senumber; Z.f 1-\ (i()\'g ~ OQOl5'
Scheduled BoRrd or AdjustmenC Hearing: I
<{ fl ( I j(

B. PROCEDURE TO ESTADLISH A ZONING VESTED RIGHT

Pleas~ provide the infonnation requested below (if necessary please provide the infonnation on a separate sheet of
paper):

A request is hereby made to the Board. of Adjustment of Buncombe County for a Zpning Vested Right for my
requested Conditionol Use Pennit(s) and/or variance(s) for

PJN(s): 9MH-98-5747 i7.(\2 1) & %68-99-7242 !2'.l.77 1)

and address(es): 42.1 Moffill l{ nnd AsheviUc. NC 28805

(I\) I, the petitioner, am requesting a zoning vested of~ years be established upo~ approval of a site
specific development plan.

Page 1 of2

Case 1:19-cv-00182-MR-DSC Document 1-1 Filed 06/07/19 Page 114 of 122


-41-
20

(b) J, the petltioner, have labeled the site specific development plan submitted with my request for a
Conditional Uso Pennft(s) and/or variance(s) with the following statement:

Approval ofthis plan utabllshes a zoning vested right under G.S. J53A.-344. I. Unless terminated at an
Mr/fer date, the zoning vested right shall be valid uni// (date wl1/c/1 tlte vested r/gl1t shall expires).

(c) The Board or Adjustment may provide that rights shall be vested for a period exceeding two years but not
exceeding five years where warranted in light of all relevant circumstances, Including, but not limited to,
the size ofthe development, the level of investment, tho need for or desirability of the devolopment,
economic cycles, and market conditions. Please Ind/care why you require a vested right greater than 2
years on the llnea below.

To ensure all regulntorv and permitting procl!sscs are completed in a timclhunc whh!h allow:) for lhc
facilitution und construclion ol'the development of the communily.

,-.,..,

C. CERTIFICATION AND SIGNATURE

Mnrch 12 2018
Month Day Year

P~ge 2 ofl

Case 1:19-cv-00182-MR-DSC Document 1-1 Filed 06/07/19 Page 115 of 122


-14-

STATE OF NORTH CAROLINA BEFORE THE BUNCOMBE COUNTY


BOARD OF ADJUSTMENT
COUNlY OF BUNCOMBE

In the Matter of:


ORDER
ZPH2018·00015
The Residences at Rlverpark

THIS MATIER came up for hearing before the Buncombe County Board of
Adjustment (sometimes hereinafter rf!ferred to as "Board") at Its April 11, 2018
meeting upon application for a condlttonal use permit pursuant to requirements of
the Buncombe County Zoning Ordinance.

Based on the Information and evidence presented and after hearing· all the
evidence, the Board hereby makes the following:

FINDINGS OF FACT

1. Michael Posey of RAB Builders, LLC has applled for a Conditional Use Permit
for a!! level I Planned Unit Development on tax lot PINs 9668-98-5747 and
9668-99-7242 (423 Moffitt Rd).

2. The property Is owned by Llnmar Properties, LLC.

3. Said pr~perty Is within the zoning jurisdiction of BunCQmbe County and the
property Is zoned Residential District (R-2).

4. The applicant Is requesting approval of a Condltlonal Use Permit for a Level I ·


Planned Unit Development to construct multl-famlly resldentlal apartments
and duplexes as required by Sec. 78·641. Permitted Uses of the Buncombe
County Zoning Ordinance,

s. That at this hearing the applicant and affected property owners were all
given the opportunity to offer oral and documentary evidence as well as
submit questions to each.other, County staff, and Board members. The
development plan submitted by the applicant Is sufficient to evaluate the .
proposed Impact of the project and any Information not Included as set forth
In 78·677(d) subsections (1) 'through (11) by the applicant ls considered not
essentlal to the proper decision of the project and waived pursuant to 78·
677(d)(12).

6. That Sec. 78·677(g) and 78-678(b)(6) of the Buncombe County Zoning


Ordinance were used to evaluate this request.
7. The applicant has requested a five year vested right.

PLAINTIFF'S
Page 1of3 EXHIBIT
(!
Case 1:19-cv-00182-MR-DSC Document 1-1 Filed 06/07/19 Page 116 of 122
-15-

8. All required notices were sent, a sign was posted on the property, and a legal
ad was publlshed.

9. This applfcatlon does not meet the requirements for granting a Condltfonal
Use Permit for the followfng reasons:
The Conditional Use Permit will be detrimental to the public welfare or Injurious to
property or public Improvement In the neighborhood of the proposed condltlonal
Use Permit, as It will change the character of the surrounding.area.

Therefore, based upon the foregoing Findings of Fact the Board hereby makes the
followfng: ·

CONCWSIONS OF LAW

1. Thts Board has jurlsdJctfon to hear and decide applications for


Condltlonal Use Permits under the Zoning Ordinance of Buncombe
county, North caroltna.

2. The proposed Condltlonal Use Permit wJll be detrimental to the public


welfare or Injurious to property or publfc lmpro~ements In the
neighborhood.

3. The proposed Condltlonal Use Pennlt wlll not conform to the


requirements and spirit of the Buncombe County Zonlhg Ordinance.

4. This Board has found that all appllcable standards within the
Buncombe County Zonlng Ordinance have not been met.

Now therefore basea on the foregoing Andlngs of Fact and Conclusions of Law the
Buncombe County Board of Adjustment hereby Orders as follows:

Upon motion to deny said application based upon non-compliance with the
terms and cond~ttons of the Zoning Ordinance of Buncombe County, North carollna
said application for a Conditional Use Permit Is hereby denied by a vote of~ to 2 of
the voting Board Members present at the meeting.

"S'.;,-..11
This .1.. th day of~ 2018.
Buncombe County Board of Adjustment

By:~~
GeofgeLh
Page 2of3

Case 1:19-cv-00182-MR-DSC Document 1-1 Filed 06/07/19 Page 117 of 122


-1 6-


I

Chair.man, Presiding

~
Attest; ~£::;?
Debbie Truempy
"' Zoning Administrator

Page 3of3

Case 1:19-cv-00182-MR-DSC Document 1-1 Filed 06/07/19 Page 118 of 122


111[

l ;\ W F , t-. ~nteh Extension: 2404


VANW!N L: .
• 11 1
· ' Writer's Facsimile: 828-255-0255
Writer's E-mail: cjustus@vwlawflrm.com

June 8, 2018

Via email a1)~ mail

Michael C. Frue, County Attorney


Buncombe County
200 College Street, SuiteAOO
Asheville, NC 28801

RE: RAB Builders, LLC v. Buncombe County

Dear Mike:

I hope this letter finds you doing well. As you may know by now, my firm
represents RAB Builders, LLC ("RAB"). My office sent you a courtesy copy of a
recently filed Petition for Writ of Certiorari, challenging the County Board of
Adjustment's recent denial of my client's conditional use permit application for a
planned unit deyelopment off Moffitt Road. As the Petitio11 sets out, the only reason
given for the denial was that the development would "change the character" of the a1·ea.
I have never seen a case hinge a denial solely on that point.'l As the Petition clearly
establishes, in this matter, the zoning board failed miserably in applying North Carolina
law, ru1d improperly grounded their conclusion on the generalized concerns of people
who did not identify their exact property location duri'ng their "testimony" but who
presumably owned property nearby.

If allowed to stand, the board's erroneous denial may lead to a loss of the
contract that my client has on the property in question. Certainly, an inexcusable delay
will cause my client to suffer lost opportunities to earn revenue. Approximately $95,000
has already been spent. in due-diligence costs with val'ious consultants. After the
anticipated build out of the project in a few years, my client will be losing annually
more than $2.3 miilion dollars in net operating income. If the project was sold, the net
profit was ru1ticipated to be over $7.7 million dollars.

Besides attorney's fees that we will seek under G.S. §6-21.7, any damages caused
by the board's action will have to be accounted for.

1The exact standard in question refers to the project being "deh·imental to the public welfare",
which I have never seen as a condition in any other ordinance. The Petition calls out its
constitutionality for obvious reasons; what constitutes the outer boundary of "public v..~•eliilflialirie'li
'?...~~!!-\
PLAINTIFF'S
EXHIBIT

Case 1:19-cv-00182-MR-DSC Document 1-1 Filed 06/07/19 Page 119 of 122J:)-\


www.vwlawflrm.com
Michael Frue, County Attorney
June 8, 2018
Page2

I recently resolved a zoning appeal in Weaverville that may provide a way to get
out of this mess. I don't normally make these points; but this case is one of those that
clearly call for immediate resolution. The law is clear and the zoning board clearly
ignored it.

Please give me a call once you have read the Petition and understand the facts. I
look forward to hearing from you.

Sincerely,
VAN WINKLE, BUCK, WALL,
STARNES AND DAVIS, P.A.
~D.J~
(Electronically Signed)
Craig Justus

cc: Client - via email

4843-1949-1687, v. 1

The Van Winkle Law Firm


Case 1:19-cv-00182-MR-DSC Document 1-1 Filed 06/07/19 Page 120 of 122
l•I
~ VANl. i\ \NWINKLf
F I I\ M Writer's Extension: 2404
Writer's facslrnlle: 828-255-0255
Writer's E-mail: cjustus@vwlawfirm.com

July 6, 20l8

Via email and mail

J. Brandon Freemar\, County Staff Attorney


Buncombe County
200 College Sh·eet, Suite 400
Asheville, NC 28801
Email: Brandon.Freeman@buncombecounty.org

RE; RAB Builders, LLC v. Buncombe County

Dear Brandon:

I am writing today as a follow up to my June 8, 2018 letter to County Attorney


Michael Frue and my email to you on June 27, 2018.

As I indicated in my written correspondence and our earliei· phone conversation,


we strongly believe that there is no legal or factual basis for the Board of Adjustment's
decision to deny my client's conditional use permit application. The singular ground
referenced in its decision - i.e. changing the character of the area - is simply untenable.
There is a plethora of North Carolina cases dearly setting out the limitations on using
"character" or "harmony" as a basis for denial. The seminal case of Woodhouse v. Board
of Com' rs of Town of Nags Head, 299 N.C. 211, 261S.E.2d882 (1980) dealt with a planned
unit development, which is the use contemplated here. It provided the following boiler
plate law:

The inclusion of a particular use in the ordinance as one which is


permitted under certain conditions, is equivalent to a legislative finding
that the prescribed use is one which is in harmony with the other uses
permitted in the district.

Id. at 216, 261 S.E.2d at 886. The burden then shifts to those opposed to the permit to
introduce thcts to override the presumption of harmony. l111w11ntive 55, LLC v. Robeso11,
801S.E.2d671, 677 (2017). This did not happen.

As stated in the Petition in this case, Buncombe County's ordinance refers to


"public welfare" as its so-called linchpin for the Board's finding related to "character"
change. As the Petition states, such language is defective as a matter of law for being
totally unguided and arbitrary. Woodhouse, supra. at 216-217, 261 S.E.2d at 886 (a test of
"suitability" for issuing a conditional use permit is invalid) (citing In re Application of
PLAINTIFF'S
11 i. y! : ~ : - f:1 : ~· · .• t • 11 ·I ,\ : l1,··.r 1.,':t . H;.' 11 i , ·j _.:~.1/ / :~ ,t •. /, , ,.,· n ,\!{ .'t·;.;11.' 'H/.t: 1/ 118·/<J 1H
1:, 1.' ':11Jdl t· ;<nt! ·"!:'•.'t:I. t k•11d ..1:,1:• 11.. 11,f:. ;.i( )>· "7 11.' I :82bl tlf/ 1,P '111
EXHIBIT

Case 1:19-cv-00182-MR-DSC Document 1-1 Filed 06/07/19 Page 121 of 122


www.vwlilwllrm.com
D-2.
J. Brandon Freeman, County Attorney
July 6, 2018
Page2

Ellis, 277 N.C. at 425, 178 S.E.2d at 81 where in that case the phrase was "adversely
affect the public interest").

In addition to the defective "public welfare" standard, the following cases hit
home the point that denying a permit based on the opposition's generalized concerns
about how a certain project seeking a conditional use permit may or may not fit into the
community is baseless a matter of law: Innovative, supra. (solar farm); MCC Outdoor,
LLC v. Town of Franklinton Bd. of Com'rs, 169 N.C. App. 809, 610 S.E.2d 794
(2005)(outdoor advertising sign); Blair Investments, LLC v. Roanoke Rapids City Council,
231 N.C. App. 318, 752 S.E.2d 524 (2013)(cell tower); American Towers, Inc. v. Town of
Morrisville, 222 N.C. App. 638, 731 S.E.2d 698 (2012)(cell tower); Little River, LLC v. Lee
Counttj, 809 S.E.2d 42 (2017)(quarry); Weaverville Partners, LLC v. Town of Weaverville
Zoning Bd. of Adj., 188 N.C. App. 55, 654 S.E.2d 784 (2008)(multi-family apartment
housing); Harts Book Stores, Inc. v. Cittj of Raleigh, 53 N.C. App. 753, 281 S.E.2d 761
(1981)(adult book store).

Pursuant to the Writ Order, the record on appeal is due to be tendered to the
Court on or before July 11th. We will immediately seek fo set a hearing on the merits for
either August 13 or August 20. Once that happens, and there is no resolution or consent
order, we will be seeking attorney's fees under G.S. §6-21.7. Thereafter, my client may
also file a complaint for damages against the County for a taking or violation of due
process. We set out in my June 8th letter some of the facts pertaining to damages.

With my first communication around June 8, I had hoped to have received a


response from the County by now that shines a light on how to extract ourselves from
what is obviously an egregious decision by the zoning board.

Sincerely,
VAN WINKLE, BUCK, WALL,
STARNES AND DAVIS, P.A.
~l).J~
(Electronically Signed)
Craig Justus

cc: Client - via email

4811-7362-4684, v. 1

The Van Winkle Law Firm


Case 1:19-cv-00182-MR-DSC Document 1-1 Filed 06/07/19 Page 122 of 122