(A) Purpose and applicability. This Unified Development Ordinance provides for a number of uses to be located by right in each general zoning district subject to the use meeting certain area, height, yard, and off-street parking and loading requirements. In addition to these uses, this Unified Development Ordinance allows some uses to be allowed in these districts as a special use subject to issuance of a special use permit by the Board of Commissioners upon recommendation of the Planning Board. Board of Commissioners consideration of special use permits are quasi-judicial decisions. The purpose of having the uses being special is to ensure that they would be compatible with surrounding development and in keeping with the purposes of the general zoning district in which they are located and would meet other criteria as set forth in this section. All special use permits require some form of a site plan as outlined in § 91.66(D).
(B) Application process/completeness.
(1) The deadline for which a special use permit application shall be filed with the UDO Administrator is 20 calendar days prior to the meeting at which the application will be heard. Permit application forms shall be provided by the UDO Administrator. In the course of evaluating the proposed special use, the Planning Board or Board of Commissioners may request additional information from the applicant. A request for any additional information may stay any further consideration of the application by the Planning Board or Board of Commissioners.
(2) No application shall be deemed complete unless it contains or is accompanied by a site plan drawn to scale which complies with the requirements contained in § 91.66(D) and a fee, in accordance with a fee schedule approved by the Board of Commissioners for the submittal of special use permit applications.
(3) One hard copy of the application, and all attachments and maps, for a special use permit shall be submitted to the UDO Administrator.
(C) Planning Board review and comment.
(1) The Planning Board may, in its review, suggest reasonable conditions to the location, nature and extent of the proposed use and its relationship to surrounding properties, parking areas, driveways, pedestrian and vehicular circulation systems, screening and landscaping, timing of development, and any other conditions the Planning Board may find appropriate. The conditions may include dedication of any rights-of-way or easements for streets, water, sewer or other public utilities necessary to serve the proposed development.
(2) The Planning Board shall forward its recommendation to the Board of Commissioners within 45 days of reviewing the application. If a recommendation is not made within 45 days, the application shall be forwarded to the Board of Commissioners without a recommendation from the Planning Board.
(3) All comments prepared by the Planning Board shall be submitted by a Planning Board representative to the Board of Commissioners as testimony at the public hearing required by this section. This representative of the Planning Board shall be subject to the same scrutiny as other witnesses. Review of the special use application by the Planning Board shall not be a quasi-judicial procedure. The Planning Board shall include in its comments a statement as to the consistency of the application with the town's currently adopted Comprehensive Plan. Comments of the Planning Board may be considered with other evidence submitted at the public hearing.
(D) Board of Commissioners action.
(1) Board of Commissioners' consideration of special use permits are quasi-judicial decisions approved by a simple majority vote. Quasi-judicial decisions must be conducted in accordance with § 91.55. For the purposes of this section, vacant positions on the Board of Commissioners 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 majority if there are no qualified alternates available to take the place of such members.
(2) Once the comments of the Planning Board have been made, or the 45-day period elapses without a recommendation, the Board of Commissioners shall hold a public hearing to consider the application at its next regularly scheduled meeting. A quorum of the Board of Commissioners is required for this hearing. Notice of the public hearing shall be as specified in § 91.55(B).
(3) In approving an application for a special use permit development approval in accordance with the principles, conditions, safeguards and procedures specified herein, the Board of Commissioners may impose reasonable and appropriate conditions and safeguards upon the approval. The petitioner will have a reasonable opportunity to consider and respond to any additional requirements prior to approval or denial by the Board of Commissioners. The applicant/landowner must consent in writing to all conditions imposed by the special use permit. Conditions and safeguards imposed under this division shall not include requirements for which the town does not have authority under statute to regulate, nor requirements for which the courts have held to be unenforceable if imposed directly by the town, including without limitation, taxes, impact fees, building design elements within the scope of G.S. § 160D-702(b), driveway-related improvements in excess of those allowed in G.S. § 136-18(29) and G.S. § 160A-307, or other authorized limitations on the development or use of land.
(4) The applicant has the burden of producing competent, material and substantial evidence tending to establish the facts and conditions which division (5) below requires.
(5) The Board of Commissioners shall issue a special use permit if it has evaluated an application through a quasi-judicial process and determined that:
(a) The establishment, maintenance or operation of the special use will not be detrimental to or endanger the public health, safety or general welfare;
(b) The special use will not be injurious to the use and enjoyment of other property in the immediate vicinity for the purposes already permitted, nor diminish or impair property values within the neighborhood;
(c) The establishment of the special use will not impede the normal and orderly development and improvement of the surrounding property for uses permitted in the district;
(d) The exterior architectural appeal and functional plan of any proposed structure will not be so at variance with either the exterior architectural appeal and functional plan of the structures already constructed or in the course of construction in the immediate neighborhood or the character of the applicable district, as to cause a substantial depreciation in the property values within the neighborhood;
(e) Adequate utilities, access roads, drainage, parking or necessary facilities have been or are being provided;
(f) Adequate measures have been or will be taken to provide ingress and egress so designed as to minimize traffic congestion in the public streets;
(g) The special use shall, in all other respects, conform to all the applicable regulations of the district in which it is located;
(h) Public access shall be provided in accordance with the recommendations of the town's land use plan and access plan or the present amount of public access and public parking as exists within the town now. If any recommendations are found to conflict, the system requiring the greatest quantity and quality of public access, including parking, shall govern; and
(i) The proposed special use shall be consistent with recommendation and policy statements as described in the adopted land use plan.
(6) Conditions and guarantees: prior to the granting of any special use, the Planning Board may recommend, and the Board of Commissioners may require, conditions and restrictions upon the establishment, location, construction, maintenance and operation of the special use as is deemed necessary for the protection of the public interest and to secure compliance with the standards and requirements specified above. In all cases in which special uses are granted, the Board of Commissioners shall require evidence and guarantees as it may deem necessary as proof that the conditions required in connection therewith are being and will be complied with. The reasons/justifications for conditions must be stated/tied to § 91.56(D)(5).
(7) In the event that a rezoning is sought in conjunction with a special use permit, such deliberation would be legislative in nature and not part of the quasi-judicial process.
(E) Effect of approval. If an application for a special use permit is approved by the Board of Commissioners, the owner of the property shall have the ability to develop the use in accordance with the stipulations contained in the special use permit, or develop any other use listed as a permitted use for the general zoning district in which it is located.
(F) Binding effect. Any special use permit so authorized shall be binding to the property included in the permit unless subsequently changed or amended by the Board of Commissioners.
(G) Certificate of occupancy. No certificate of occupancy for a use listed as a special use shall be issued for any building or land use on a piece of property which has received a special use permit for the particular use unless the building is constructed or used, or the land is developed or used, in conformity with the special use permit approved by the Board of Commissioners. In the event that only a segment of a proposed development has been approved, the certificate of occupancy shall be issued only for that portion of the development constructed or used as approved.
(H) Change in special use permit. An application to materially change a special use permit once it has been issued must first be submitted, reviewed and approved in accordance with divisions (C) and (D) above, including payment of a fee in accordance with the fee schedule approved by the Board of Commissioners.
(I) Implementation of special use permit. A special use permit, after approval by the Planning Board and Board of Commissioners shall expire six months after the approval date if work has not commenced or in the case of a change of occupancy the business has not opened; however, it may be, on request, continued in effect for a period not to exceed six months by the UDO Administrator. No further extension shall be added except on approval of the Board of Commissioners. If such use or business is discontinued for a period of 12 months, the special use permit shall expire. Any expiration as noted or any violation of the conditions stated on the permit shall be considered unlawful and the applicant will be required to submit a new special use application to the appropriate agencies for consideration and the previously approved special use permit shall become null and void.
(Ord. 21-1, passed 9-17-2020)