3.5.12 Deviations from Approved Development Plans

The following deviations from an approved development plan require a zoning map change or an amendment to the development plan, as indicated below:

1. A decrease by more than 20% in total density of the residential development, except in a Design District zoning district.

2. A decrease by more than five percent in total density in residential projects located within a Design District zoning district, unless that decrease results from the application of UDO requirements relating to size or design.

3. In a nonresidential or mixed-use development on a site adjacent to a residential district, a cumulative expansion by more than five percent of total building floor area or 4,000 square feet, whichever is greater, or a cumulative decrease of more than 20% of total building floor area.

4. Changes to the proposed phasing of the project where phasing plans are required or commitments.

5. Changes to the use category (for example, residential to office, office to commercial, commercial to industrial, as described in Article 5, Use Regulations), if limitations on the number, range, or types of uses were proposed with the development plan and the governing body limited its consideration of uses to those uses.

6. A change to the number, location, and/or type (i.e. full versus limited movements) of access points along the same right-of-way or cardinal direction of the development that does not provide equal or improved safety, circulation, and connectivity.

7. A change in the location of a building for sites adjacent to a property with a residential district or use.

8. An increase of more than three percent in impervious surface area.

9. A change to an environmental protection, including tree coverage, that exceeds current ordinance requirements.

10. Any graphic or text commitments or committed elements not identified as qualifying as an amendment, below.

11. Any other change to a development plan depiction, unless such depiction is clearly identified as “conceptual” or “illustrative,” and not identified as qualifying as an amendment below.

The purpose of this paragraph is to allow for a limited range of changes (referred to as “amendments”) to an existing development plan that would not require a new zoning map change. If the proposed amendment would require a new or revised TIA, then it shall require a new zoning map change.

1. The process for amendments shall follow the same adoption process for a zoning map change, but does not change the zoning designation.

2. A petition to change a development plan must include the previously approved development plan documents in their entirety with elements proposed for change clearly delineated (graphically and in text format). Previously approved documentation will be supplemented or replaced in its entirety with the modified development plan.

3. The following qualify as amendments. Proposals utilizing more than two of the categories listed below shall require a zoning map change:

a. Changes to architectural or other building design or layout commitments, guidelines, or depictions, including specific limits on height.

b. A change to the requirement on the plan using definitive terms such as, but not limited to, “shall,” “must,” or “will.”

c. Additional, or the removal of, depicted internal access points or connectivity between sections of the development.

d. An increase in allowed density through the use of a density bonus other than an affordable housing bonus.

e. A change in housing type(s) or proportion of housing type mix.

f. A change to identified building or parking envelopes.

If a zoning map change request seeks to rezone a portion of a site under an existing development plan, it shall be demonstrated that the remaining site under the existing development plan can meet all ordinance requirements including committed elements of the development plan. Otherwise, the entire site under the existing development plan shall require a zoning map change.

Where a change is proposed to a development plan and a portion of the development has been transferred to residential owner(s), owner acknowledgment from those owner(s) is not required if the proposed zoning map change or amendment requires no development improvements on those properties.

Notwithstanding the other requirements of this section and except as stated below, a site plan or preliminary plat shall deviate from an approved development plan to conform to the requirements of a new ordinance or other law adopted after development plan approval, and a zoning map change shall not be required. Exceptions are:

1. Where the development plan is vested pursuant to the vested rights procedure; and

2. As authorized under paragraph 1.10.3A, Approved Site Plans, Plats, and Permits and Completed Applications.

Under such exceptions, the site plan or preliminary plat shall conform to the approved development plan.

Amendments to an existing development plan, or a new zoning map change approval, are not required in order to utilize and comply with the requirements of the affordable housing bonuses within this section, as applicable.

1. Except for development projects that will utilize the affordable housing bonus of this section, a new zoning map change is required for any proposal that exceeds the peak hour trip generation of the TIA that was performed with the original zoning map change by more than three percent. If a TIA was not required for the development plan, but the proposed development requires it, then a zoning map change is required.

a. Road improvements that were committed as recommended by the TIA performed with the original zoning map change are exempted at the time of full build-out through a new TIA that demonstrates the intensity of the full build-out of the overall development no longer warrants the improvement.

b. The City Transportation Department, and NCDOT, as applicable, shall review the new TIA to verify the accuracy of the analysis, and that the previously recommended and committed improvements are no longer warranted. However, if the new TIA indicates that additional improvements are needed, then those new improvements shall be required of the development.