§ 128. Completion of Nonconforming Projects.

(a)

All nonconforming projects on which construction was begun at least one hundred eighty (180) days before the effective date of this chapter [appendix] as well as all nonconforming projects that are at least ten (10) percent completed in terms of the total expected cost of the project on the effective date of this chapter [appendix], may be completed in accordance with the terms of their permits, so long as these permits were validly issued and remain unrevoked and unexpired. If a development is designed to be completed in stages, this subsection shall apply only to the particular phase under construction. In addition, as provided in G.S. Section 160A-385(b), neither this ordinance nor any amendment to it shall, without the consent of the property owner, affect any lot with respect to which a building permit has been issued pursuant to G.S. Section 160A-417 prior to the enactment of the ordinance making the change, so long as the building permit remains valid, unexpired, and unrevoked.

(b)

Except as provided in Subsection (a), all work on any nonconforming project shall cease on the effective date of this chapter [appendix], and all permits previously issued for work on nonconforming projects may begin or may be continued only pursuant to a zoning, special use, conditional use, or sign permit issued in accordance with this section by the individual or board authorized by this chapter [appendix] to issue permits for the type of development proposed. The permit-issuing authority shall issue such a permit if it finds that the applicant has in good faith made substantial expenditures or incurred substantial binding obligations or otherwise changed his position in some substantial way in reasonable reliance on the land use law as it existed before the effective date of this chapter [appendix], and thereby would be unreasonably prejudiced if not allowed to complete his project as proposed. In considering whether these findings may be made, the permit-issuing authority shall be guided by the following, as well as other relevant considerations:

(1)

All expenditures made to obtain or pursuant to a validly issued and unrevoked building, zoning, sign, or special or conditional use permit shall be considered as evidence of reasonable reliance on the land use law that existed before this chapter [appendix] became effective.

(2)

Except as provided in subdivision (b)(1), no expenditures made more than one hundred eighty (180) days before the effective date of this chapter [appendix] may be considered as evidence of reasonable reliance on the land use law that existed before this chapter [appendix] became effective. An expenditure is made at the time a party incurs a binding obligation to make that expenditure.

(3)

To the extent that expenditures are recoverable with a reasonable effort, a party shall not be considered prejudiced by having made those expenditures. For example, a party shall not be considered prejudiced by having made some expenditure to acquire a potential development site if the property obtained is approximately as valuable under the new classification as it was under the old, for the expenditure can be recovered by a resale of the property.

(4)

To the extent that a nonconforming project can be made conforming and that expenditures made or obligations incurred can be effectively utilized in the completion of a conforming project, a party shall not be considered prejudiced by having made such expenditures.

(5)

An expenditure shall be considered substantial if it is significant both in dollar amount and in terms of the total estimated cost of the proposed project, and the ordinary business practices of the developer.

(6)

A person shall be considered to have acted in good faith if actual knowledge of a proposed change in the land use law affecting the proposed development site could not be attributed to him.

(7)

Even though a person had actual knowledge of a proposed change in the land use law affecting a development site, the permit-issuing authority may still find that he acted in good faith if he did not proceed with his plans in a deliberate attempt to circumvent the effects of the proposed ordinance. The permit-issuing authority may find that the developer did not proceed in an attempt to undermine the proposed ordinance if it determines that at the time the expenditures were made, either there was considerable doubt about whether any ordinance would ultimately be passed, or it was not clear that the proposed ordinance would prohibit the intended development; and the developer had legitimate business reasons for making expenditures.

(8)

In deciding whether a permit should be issued under this section, the permit-issuing authority shall not be limited to either denying a permit altogether or issuing a permit to complete the project (or phases, sections, or stages thereof) as originally proposed or approved. Upon proper submission of plans by the applicant, the permit-issuing authority may also issue a permit authorizing a development that is less nonconforming than the project as originally proposed or approved but that still does not comply with all the provisions of the ordinance making the project nonconforming.

(c)

When it appears from the developer's plans, or otherwise, that a project was intended to be or reasonably could be completed in phases, stages, segments, or other discrete units, the developer shall be allowed to complete only those phases or segments with respect to which the developer can make the showing required under Subsection (b). In addition to the matters and subject to the guidelines set forth in subdivisions (1) through (6) of Subsection (b), the permit-issuing authority shall, in determining whether a developer would be unreasonably prejudiced if not allowed to complete phases or segments of a nonconforming project, consider the following in addition to other relevant factors:

(1)

Whether any plans prepared or approved regarding uncompleted phases constitute conceptual plans only or construction drawings based upon detailed surveying, architectural, or engineering work.

(2)

Whether any improvements, such as streets or utilities, have been installed in phases not yet completed.

(3)

Whether utilities and other facilities installed in completed phases have been constructed in such a manner or location or such a scale, in anticipation of connection to or interrelationship with approved but uncompleted phases, that the investment in such utilities or other facilities cannot be recouped if such approved but uncompleted phases are constructed in conformity with existing regulations.

(d)

The permit-issuing authority shall not consider any application for the permit authorized by Subsection (b) that is submitted more than sixty (60) days after the effective date of this chapter [appendix]. The permit-issuing authority may waive this requirement for good cause shown, but in no case may it extend the application deadline beyond one (1) year.

(e)

The administrator shall send copies of this section to the persons listed as owners for tax purposes (and developers, if different from the owners) of all properties in regard to which permits have been issued for nonconforming projects or in regard to which a nonconforming project is otherwise known to be in some stage of development. This notice shall be sent by certified mail not less than fifteen (15) days before the effective date of this chapter [appendix].

(f)

The permit-issuing authority shall establish expedited procedures for hearing applications for permits under this section. These applications shall be heard, whenever possible, before the effective date of this chapter [appendix], so that construction work is not needlessly interrupted.