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Approved 4/22/2014 OC Board of Adjustment – 11/11/2013 Page 26 of 123 to Section 7.6 which says, “Approval of final plans and reports shall be based on compliance with regulations 1 applying at the time the land was zoned. It had not yet been zoned. The approval had been made for the 2 conditions but the zoning had not taken place and would not take place until March 31, 1998. I wasn’t planning 3 on speaking on this in much detail but since Mr. Gledhill brought it up I would like to point out there is not vested 4 right here. Mr. Gledhill has asserted that a vested right does exist and I would submit to you that it does not 5 according to Orange County Ordinance or North Carolina General Statutes and the reason for that is because the 6 period of vested right cannot exceed five years and let me actually quote here from North Carolina General 7 Statute, Section 153A-344.1 Vesting Right, “Duration and termination of Vested Rights, Number 1, A right which 8 has been vested as provided for in this Section shall remain vested for a period of two years, this vesting shall not 9 be extended by any amendments or modifications to a site specific development plan unless expressly provided 10 by the county. Number 2, notwithstanding the provisions of subsection D1, a county may provide that rights shall 11 be vested for a period exceeding two years but not exceeding five years where warranted in light of all relevant 12 circumstances”. 13 14 Jeff Schmitt: What is the date of this statute? 15 16 Michael Buck: I believe this should be verified but the date I have in my notes is, it was … the overall section 17 dates from 1959 but has multiple updates since then so I cannot speak with authority as to whether or not this 18 was in effect at whatever time point we need to talk about but I think becomes a question as well. Does this have 19 to be in effect in 1986 when the conditions were approved, does it have to be in effect in 1998 when the zoning 20 actually took place or is there some later date. The other thing I would point out is that the vesting, there is a 21 process by which the vesting has to happen. There is no evidence before you that shows there was vested right 22 given in this case. I am not immune to the vesting process right. What Mr. Gledhill says is totally correct. If you 23 are a developer, you want to know that for the project you have got, a long term project that you are going to be 24 able to have rules that are consistent for your project. It makes total sense but whatever date we use for this 25 project, there is no way to get around the fact that by 1998, more than five years had passed since 1986 and 26 even if they didn’t vest until 1998, the expiration, look at what the General Statutes actually say, you have to have 27 applied for building permits, they had not applied for building permits for subsequent phases. Let’s assume for 28 the sake of argument that a vested right did exist. I don’t believe that one did and I don’t believe there is any 29 evidence whatsoever that a vested right existed by let’s assume a vested right did exist. There is no prohibition 30 against additional and I am quoting from North Carolina General Statues 153A-344.1 Subsection E2, “The 31 establishment of a vested right shall not preclude the application of overlay zoning which imposes additional 32 requirements but does not affect the allowable type or intensity of use or ordinances or regulations which are 33 general in nature and applicable to all properties subject to land use regulation. Nothing of concern here today 34 affects the intensity of the use. I am not challenging the land use intensity statistics, I am saying the active 35 recreation components of the project and the ordinances that describe what is required, and those are applicable 36 even in the face of a vested right. I would say there is substantial evidence that the proper thing to use here is 37 the 1998 date. We have the Zoning Ordinance 7.6. We have the special use permit text itself which tells us that 38 the special use permit was enacted, was rezoned in 1998. We have the zoning officer testimony. We have 39 county enforcement of ordinance enacted after 1986. We have, what I believe to be, the lack of any vested right 40 and we don’t have any compelling evidence of a reason to use the 1986 date. As I said, the county’s argument 41 requires the use of the 1986 date. The county has put forth no evidence to say that, well the land really is of a 42 quality that is acceptable for active recreation. They have put forth no evidence that lets us use the land in 43 question with the subdivision ordinance enacted in late 1986 so if the county does not prevail on this point, I 44 believe that is a very difficult burden for them to overcome. I am going to show you evidence that even if you 45 disagree with me I think the case is pretty strong that 1998 is proper date but even if you disagree, I would like to 46 show you evidence where I think that I can still prevail on the merits. That is a discussion of the relevant date. I 47 am going to move onto another section where one of my contentions is the inadequate active recreation acreage 48