(a) Purpose. Special uses are established to provide for the location of those uses which are generally compatible with other land uses permitted in a zoning district but which, because of their unique characteristics or potential impacts on the surrounding neighborhood and the city as a whole, require individual consideration of their location, design, configuration, and/or operation at the particular location proposed. Such individual consideration may also call for the imposition of individualized conditions in order to ensure that the use is appropriate at a particular location and to ensure protection of the public health, safety, and welfare. Any use identified in article VIII and article XVI of this chapter as a special use in a zoning district shall not be permitted without the approval of the planning and zoning commission in accordance with the requirements and procedures set forth in this subsection 7-5-5.
(b) Pre-application procedure.
(1) Conference. Every applicant for a special use is required to meet with the planning and development director in a pre-application conference prior to the submittal of a request for approval of a special use. The purposes of this conference are to provide additional information regarding the review process and assistance in the preparation of the application.
(2) Neighborhood meeting. It is required that the developer meet with representatives of the neighborhood in which the proposed special use will be located. This meeting, which should be held at the pre-application stage, will allow the developer to explain the proposed use and to be informed of the concerns of the neighborhood.
(c) Plan submittal.
(1) Filing of application. An application for a special use permit may be filed by the owner of the property or by an agent specifically authorized by the owner to file such application. Where an agent files the application, the agent shall provide documentation that the owner of the property has authorized the filing of the application. The application for a special use permit shall be filed with the development services department on a form provided by the department.
(2) Fees. A permit fee, as established by the City of Asheville Fees and Charges Manual, shall be submitted with the application.
(3) Information required. Each application for a special use permit shall contain all information described in city-provided Checklists for Applications; and a notation of the pertinent deed number of the subject property with book and page reference from the Buncombe County Register of Deeds.
(d) Staff review.
(1) Planning and development staff review. Following submittal of the application and site plans for the special use, they shall be reviewed by the planning and development director or designee for compliance with the requirements of this chapter and in consideration of the special use standards found in Sec. 7-16-2(c) of this chapter and advise the applicant accordingly.
(2) Submittal of plans to technical review committee ("TRC") for preliminary review. The planning and development director or designee shall present the site plans for the special use to the TRC at its next regular meeting. The TRC shall review the site plan for compliance with existing federal, state, and local regulations. This review shall be made by the members of the TRC and by any other agencies or officials as determined by the planning and development director. For special uses in 7-16-2 that require review for compliance with the Downtown Review Design Guidelines-such review shall be conducted by the Downtown Design Review Committee and the recommendation forwarded to the Planning and Zoning Commission as part of its review of the special use permit request.
(3) Action by technical review committee. Upon submittal and review of a complete application for a special use permit, the TRC may make one of the following recommendations:
a. Approval. If the TRC recommends approval, the planning and development director or designee shall forward the recommendation and the special use application to the Planning and Zoning Commission for a final decision reached after a quasi-judicial hearing.
b. Approval with conditions. If the TRC recommends approval with conditions, the applicant may revise the plan to meet the conditions of the approval and resubmit it. The revised plan shall be reviewed by the planning and development director or designee and, if it meets all of the conditions, shall forward the recommendation and the special use application to the Planning and Zoning Commission for a final decision reached after a quasi-judicial hearing.
c. Denial. If the TRC recommends denial of the request, the reasons for denial shall be provided in writing to the applicant. The site plan may be revised to address the reasons for denial and resubmitted in accordance with the provisions of this chapter. After an opportunity to revise has been granted, and concerns remain unaddressed, the recommendation for denial and special use application shall be forwarded to the Planning and Zoning for a final decision reached after a quasi-judicial hearing.
While TRC preliminary review and recommendation are considered useful for ensuring to the greatest extent that applications meet all applicable laws and regulations, the TRC recommendations are not determinative and no part of the recommendation may be used as the sole basis for the Planning and Zoning Commission’s final quasi-judicial decision.
d. Timing. The TRC shall make its recommendation within the timeframe specified by the published TRC schedule. Provided the application and site plan are complete, failure by the TRC to make its recommendation within the timeframe specified by the published TRC schedule shall result in the refund of any application fees paid.
(e) Formal Quasi-Judicial Review.
(1) Public hearing. Upon receipt of a notice from the planning and development director, their designee or the applicant requesting a hearing on the application and site plan for a special use permit, a quasi-judicial hearing before the Planning and Zoning Commission shall be scheduled.
(2) Action by the Planning and Zoning Commission.
a. Review of special use permit request. The Planning and Zoning Commission shall follow quasi-judicial procedures as required by N.C.G.S. § 160D-406 in determining special use permit decisions.
b. Decision by the Planning and Zoning Commission. Before a special use permit is granted, the Planning and Zoning Commission must find that the application meets all of the Special Use Standards found in Sec. 7-16-2(c) of this chapter based on competent, material, and substantial evidence presented at the hearing. The decision on the special use application shall be by a simple majority vote of those members of the commission present at the meeting at which the action is taken. The special use permit decision shall be effective upon filing of the written decision with the secretary to the commission. The decision of the commission shall be delivered within a reasonable time by electronic mail, personal delivery or first-class mail to the applicant, landowner, and any person who has submitted a written request for a copy prior to the date the decision becomes effective.
If approved by the planning and zoning commission, no permits may be issued related to the approved special use permit pertinent to the specific property until the property owner has recorded the approved plan and conditions at the Buncombe County Register of Deeds including notation of the pertinent deed number with book and page reference.
c. Transfer of approval. A special use approval is not transferable from one property to another, but may be transferred to a subsequent owner of the property.
d. Resubmission of denied applications. No application for approval of a development project (special use, site plan, project plan) shall be filed with or accepted by the City if that project is identical or substantially similar to a special use application which has been denied by the planning and zoning commission within one year of the final action by the planning and zoning denying the request.
(f) Public notification. Notice of quasi-judicial hearings or public meetings required under this section for special use approvals shall be provided in accordance with the provisions of section 7-5-20 of this chapter. Additional notice provisions may be required in accordance with section 7-16-2 of this chapter.
(g) Project phasing. If a project approved as a special use is to be developed in phases, a master plan for the entire development site must be approved by the Planning and Zoning Commission at the same time and in the same manner the special use permit application is considered.
Final plans for phases of the special use may be submitted in stages and shall be approved by City staff provided that the following requirements are met:
(1) All stages shall be shown with precise boundaries on the master plan and shall be numbered in the expected order of development.
(2) Each phase must be able to exist independently of subsequent phases by meeting all applicable laws and regulations as if the phase were a separate project.
(3) All the data required for the project as a whole shall be given for each stage shown on the plan.
(4) A proportionate share of the open space and common facilities shall be included in each stage of the development.
(5) The phasing shall be consistent with the traffic circulation, drainage, and utilities plan for the entire master plan for the special use.
(6) Each phase of the special use must comply with any and all conditions attached to the approval of the special use permit by the Planning and Zoning Commission.
(h) Conditions. Reasonable and appropriate conditions and safeguards may be imposed on these special use permits. Where appropriate, such conditions may include requirements that street and utility rights-of-way be dedicated to the public and that provision be made for recreational space and facilities. The planning and zoning commission may prescribe dimensional requirements (height, setback, etc.) that are different from the requirements of the corresponding general zoning classification, and may prescribe development and design standards that are different from those set out in article XI; provided, that any request for a modification to a dimensional requirement or development and design standard that is less restrictive than would be applicable for the underlying general zoning classification must be specifically described in any notices required for the public hearing on the special use permit application, and must be set out separately in any ordinance issuing said special use permit, together with an explanation of the reason for the modification. Except as modified pursuant to this paragraph, all standards and requirements applicable to the underlying general zoning district must be met. Variances to the standards established by any special use permit shall not be allowed.
(i) Appeals. An appeal from the decision of the Planning and Zoning Commision regarding a special use application and site plan may be made by an aggrieved party and shall be made to the Superior Court of Buncombe County in the nature of certiorari. Any such petition to the Superior Court shall be filed with the court no later than 30 days after a written copy of the decision of the planning and zoning commission is received by the applicant.
(j) Permit validity. Approvals of a special use application and site plan shall be valid for two years from the date of approval by the Planning and Zoning Commission. An extension of up to one additional year may be granted by the Planning and Zoning Commission upon submittal by the application of sufficient justification for the extension. Appropriate conditions may be added to the initial approval or extension approval to guarantee site maintenance and security. Failure to obtain a zoning permit or otherwise being the permitted use, within this time shall render the special use approval void. Nothing herein shall be construed to extend any time limitations prescribed by statute or by other ordinances in this chapter.
Permits for the phased development of a special use project shall remain valid for the time approved by the Planning and Zoning Commission as part of the special use approval of the master plan for the special use.
(k) Minor Modifications. Minor modifications to a special use permit that do not involve a change in uses permitted or the density of overall development permitted may be reviewed and approved administratively. Any other modifications or revocation of a special use permit shall follow the same process for the granting of the original special use permit.
(l) Violations. Violations of the special use permit or of any of the conditions attached to the approval shall be considered a violation of this chapter and subject to the enforcement and penalty provisions of article XVIII of this chapter.
(Ord. No. 2369, § 1, 5-27-97; Ord. No. 2428, § 4, 11-11-97; Ord. No. 2771, § 1a.—d., 11-28-00; Ord. No. 2843, § 1(a), 8-28-01; Ord. No. 2871, §§ 1(g)—1(k), 11-27-01; Ord. No. 3064, §§ 1(a), (b), 10-14-03; Ord. No. 3206, § 1, 1-25-05; Ord. No. 3369, § 1(b), 6-27-06; Ord. No. 3374, §§ 1(a)—(c), 7-11-06; Ord. No. 3530, § 1, 8-28-07; Ord. No. 3709, § 1a, 3-10-09; Ord. No. 3757, § 1a, 7-14-09; Ord. No. 3947, § 1, 2-22-11; Ord. No. 4273, § 1, 1-28-14; Ord. No. 4361, § 1b, 3-23-21; Ord. No. 5057, § 1f, 1-23-24)