(A) Definition. As included in § 154.026 of this chapter, a SPECIAL USE PERMIT means a permit issued to authorize development or land uses in a particular zoning district upon presentation of
competent, material, and substantial evidence establishing compliance with one or more general standards requiring that judgment and discretion be exercised as well as compliance with specific standards. The term includes permits previously referred to as conditional use permits or special exceptions. For similar state law provisions, refer to G.S. § 160D-102.
(B) General. A land use designated as a “special use” in a particular zoning district is one that because of its nature, extent and external effects, generally is not appropriate in the district, but might be if subject to special standards and review that will ensure it is located, designed and operated in a manner that is in harmony with neighboring development and does not adversely affect the public health, safety and general welfare. Therefore, development associated with a land use designated as a special use is allowed only after a special use permit has been granted.
(C) Authority. Special use permits shall be granted by the Town Board of Commissioners as permitted by G.S. § 160D-705 for all special uses enumerated in the Table of Uses. Special uses may only be established by approval of the elected Board of Commissioners. For similar state law provisions, refer to G.S. § 160D-705(c).
(E) Process required. The following process shall apply to the consideration of all special use permits. See Figure 6-1 for Process Flow Diagram.
(1) Filing of application.
(a) The owner or owners of all the property included in the petition for a special use permit shall submit required application information to the Town Zoning Enforcement Officer at least three weeks prior to the Planning and Zoning Board meeting at which it is to be heard. Such application shall include all of the requirements pertaining to it in this chapter.
(b) Applications shall include a site plan as required in this chapter and be accompanied by a fee set according to the town’s adopted fee schedule. Instructions for site plans can be found at § 154.084 of this chapter.
(2) Staff review. The Zoning Enforcement Officer will review the petition for full compliance with all submittal requirements. If it does not fully comply, they will notify the petitioner of submittal deficiencies and allow him or her ten calendar days to submit corrected information.
(3) Review by Planning and Zoning Board.
(a) No special use permit shall be approved until a review of the application has been conducted by the Planning and Zoning Board. The Planning and Zoning Board shall hear all requests for special use permits within 30 days from submission. However, this requirement is not intended to
prevent the Planning and Zoning Board from delaying action after review. The Planning and Zoning Board shall make a written recommendation to the Board of Commissioners.
For similar state law provisions, refer to G.S. § 160D-301(b).
(b) In its review of the application for a special use permit, the Planning and Zoning Board may consider the following:
1. The proposed use will not materially endanger the public health or safety. Considerations shall include:
a. Traffic conditions in the vicinity, including the effect of additional traffic on streets and street intersections, and sight lines at street intersection and curb cuts;
b. Provision of services and utilities, including sewer, water, electrical, garbage collections, fire protection;
c Soil erosion and sedimentation; and
d. Protection of public, community, or private water supplies, including possible adverse effects on surface waters or groundwater.
2. The proposed use will comply with all regulations and standards generally applicable within the zoning district and any development regulations applicable to that specific use as included in this chapter.
3. The proposed development will not substantially injure the value of adjoining property, or is a public necessity. Considerations shall include:
a. The relationship of the proposed use and the character of development to surrounding uses and development, including possible conflicts between them and how these conflicts will be resolved; and
b. Whether the proposed development is so necessary to the public health, safety, and general welfare of the community or town as a whole as to justify it regardless of its impact on the value of adjoining property.
4. The proposed development will be in harmony with the area in which it is located. Considerations shall include: the relationship of the proposed use and the character of development to surrounding uses and development, including possible conflicts between them and how these conflicts will be resolved.
5. The proposed development will be consistent with the Fairmont Town Comprehensive Land Use Plan. Considerations shall include: consistency with the plan's objectives for the various planning areas, its definitions of the various land use classifications and activity centers, and its locational standards.
6. Adequate utilities, access roads, drainage, sanitation and/or other necessary facilities have already been provided or being provided in the proposed development permit application.
For similar state law provisions, refer to G.S. § 160D-705(c).
(4) Review and decision by the Board of Commissioners. A quasi-judicial, evidentiary hearing shall be held by the Town Board of Commissioners prior to deciding on approval or denial of the application for a special use permit in compliance with § 154.107(E)(5) through (E)(15).
(5) Notice of hearing. Notice of evidentiary hearings conducted shall be mailed to:
(a) The person or entity whose appeal, application, or request is the subject of the hearing;
(b) The owner of the property that is the subject of the hearing if the owner did not initiate the hearing;
(c) The owners of all parcels of land abutting the parcel of land that is the subject of the hearing; and
(d) Any other persons entitled to receive notice as provided by the local development regulation. In the absence of evidence to the contrary, the local government may rely on the town tax listing to determine owners of property entitled to mailed notice.
(e) The notice must be deposited in the mail at least ten days, but not more than 25 days, prior to the date of the hearing. Within that same time period, the local government shall also prominently post a notice of the hearing on the site that is the subject of the hearing or on an adjacent street or highway right-of-way.
For similar state law provisions, refer to G.S. § 160D-406(b).
Figure 6-1
(6) Administrative materials. The Zoning Enforcement Officer shall transmit to the board all applications, reports, and written materials relevant to the matter being considered.
(a) The administrative materials may be distributed to the members of the Board prior to the hearing if at the same time they are distributed to the board a copy is also provided to the appellant or applicant and to the landowner if that person is not the appellant or applicant.
(b) The administrative materials shall become a part of the hearing record.
(c) The administrative materials may be provided in written or electronic form.
(d) Objections to inclusion or exclusion of administrative materials may be made before or during the hearing. Rulings on unresolved objections shall be made by the Board at the hearing.
For similar state law provisions, refer to G.S. § 160D-406(c).
(7) Continuations of properly advertised hearings. The Board may continue an evidentiary hearing that has been convened without further advertisement. For similar state law provisions, refer to G.S. § 160D-406(b).
(8) Quorum required for hearing, continuance. If an evidentiary hearing is set for a given date and a quorum of the board is not then present, the hearing shall be continued until the next regular board meeting without further advertisement. For similar state law provisions, refer to G.S. § 160D-406(b).
(9) Presentation of evidence.
(a) Parties in the presentation of evidence. The applicant, the town, and any person who would have standing to appeal the decision under G.S. § 160D-1402(d) shall have the right to participate as a party at the evidentiary hearing.
(b) Other witnesses. Other witnesses may present competent, material, and substantial evidence that is not repetitive as allowed by the Board.
(c) Objections. Objections regarding jurisdictional and evidentiary issues, including but not limited to, the timeliness of an appeal or the standing of a party, may be made to the Board.
(d) Ruling on objections. The Board chair shall rule on any objections and the chair's rulings may be appealed to the full Board. These rulings are also subject to judicial review pursuant to G.S. § 160D-1402.
(e) Objections on jurisdiction. Objections based on jurisdictional issues may be raised for the first time on judicial review.
For similar state law provisions, refer to G.S. § 160D-406(d).
(10) Appearance of official/new issues.
(a) Town official must be present. The official who made the decision or the person currently occupying that position if the decision-maker is no longer employed by the town, shall be present at the evidentiary hearing as a witness.
(b) Content. The appellant shall not be limited at the hearing to matters stated in a notice of appeal.
(c) Continuance. If any party or the town would be unduly prejudiced by the presentation of matters not presented in the notice of appeal, the Board shall continue the hearing.
For similar state law provisions, refer to G.S. § 160D-406(e).
(11) Oaths.
(a) The chair of the board or any member acting as chair and the clerk to the board are authorized to administer oaths to witnesses in any matter coming before the board.
(b) Violation of oath. Any person who, while under oath during a proceeding before the board determining a quasi-judicial matter, willfully swears falsely is guilty of a Class 1 misdemeanor.
For similar state law provisions, refer to G.S. § 160D-406(f).
(12) Subpoenas.
(a) Who may issue subpoenas. The Board making a quasi-judicial decision under G.S. Chapter 160D through the chair, or in the chair's absence anyone acting as chair, may subpoena witnesses and compel the production of evidence.
(b) Request to be made in writing. To request issuance of a subpoena, the applicant, the town, and any person with standing under G.S. § 160D-1402(d) may make a written request to the chair explaining why it is necessary for certain witnesses or evidence to be compelled. The chair shall issue requested subpoenas he or she determines to be relevant, reasonable in nature and scope, and not oppressive.
(c) Ruling on motions regarding subpoenas. The chair shall rule on any motion to quash or modify a subpoena. Decisions regarding subpoenas made by the chair may be immediately appealed to the full Board.
(d) Failure to obey. If a person fails or refuses to obey a subpoena issued pursuant to this division (12), the Board or the party seeking the subpoena may apply to the General Court of Justice for an order requiring that its subpoena be obeyed, and the court shall have jurisdiction to issue these orders after notice to all proper parties. For similar state law provisions, refer to G.S. § 160D-406(g).
(13) Consideration by Town Board of Commissioners. In considering special use permit applications, reasonable and appropriate conditions and safeguards may be imposed on these permits.
(a) 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.
(b) 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 local government nor requirements for which the courts have held to be unenforceable if imposed directly by the local government, 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 unauthorized limitations on the development or use of land.
For similar state law provisions, refer to G.S. § 160D-705(c).
(c) Before the Board of Commissioners approves any special use permit application, it may consider the following:
1. The proposed use will not materially endanger the public health or safety. Considerations shall include:
a. Traffic conditions in the vicinity, including the effect of additional traffic on streets and street intersections, and sight lines at street intersection and curb cuts;
b. Provision of services and utilities, including sewer, water, electrical, garbage collections, fire protection;
c. Soil erosion and sedimentation; and
d. Protection of public, community, or private water supplies, including possible adverse effects on surface waters or groundwater.
2. The proposed use will comply with all regulations and standards generally applicable within the zoning district and any development regulations applicable to that specific use as included in this chapter.
3. The proposed development will not substantially injure the value of adjoining property, or is a public necessity. Considerations shall include:
a. The relationship of the proposed use and the character of development to surrounding uses and development, including possible conflicts between them and how these conflicts will be resolved; and
b. Whether the proposed development is so necessary to the public health, safety, and general welfare of the community or town as a whole as to justify it regardless of its impact on the value of adjoining property.
4. The proposed development will be in harmony with the area in which it is located. Considerations shall include: the relationship of the proposed use and the character of development to surrounding uses and development, including possible conflicts between them and how these conflicts will be resolved.
5. The proposed development will be consistent with the Fairmont Town Comprehensive Land Use Plan. Considerations shall include: consistency with the Plan's objectives for the various planning areas, its definitions of the various land use classifications and activity centers, and its locational standards.
For similar state law provisions, refer to G.S. § 160D-705(c).
(14) Voting. The Planning and Zoning Board may decide to approve the application as submitted, modify and approve the application or deny the application for a special use permit. Reasons for denial shall be clearly stated in writing by the Board. When issuing or denying special use permits, no vote greater than a majority vote shall be required for the Board of Commissioners to issue such permits, and every such decision of the Board shall be subject to review by the superior court by proceedings in the nature of a certiorari.
(a) Votes needed to determine appeals in nature of certiorari. A majority of the members shall be required to determine an appeal made in the nature of certiorari.
(b) Votes needed on other quasi-judicial matters. A majority of the members shall be required to decide any other quasi-judicial matter.
(c) Vacancies. For the purposes of this division (14) vacant positions on the Board and members who are disqualified from voting on a quasi-judicial matter under G.S. § 160D-1-9(d) 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.
For similar state law provisions, refer to G.S. § 160D-406(i)
(15) Decisions. The Planning and Zoning Board shall determine contested facts and make its decision within a reasonable time.
(a) Appeals. When hearing an appeal, the Board may reverse or affirm, wholly or partly, or may modify the decision appealed from and shall make any order, requirement, decision, or determination that ought to be made.
(b) Power of the Board. The Board shall have all the powers of the official who made the decision.
(c) Basis for decision. Every quasi-judicial decision shall be based upon competent, material, and substantial evidence in the record.
(d) Decision to be in writing. Each quasi-judicial decision shall be reduced to writing, reflect the Board's determination of contested facts and their application to the applicable standards and be approved by the Board and signed by the chair or other duly authorized member of the Board.
(e) When decision is effective. A quasi-judicial decision is effective upon filing the written decision with the clerk to the Board or such other office or official as the development regulation specifies.
(f) Delivery. The decision of the Board shall be delivered within a reasonable time by personal delivery, electronic mail, or by first-class mail to the applicant, landowner, and to any person who has submitted a written request for a copy prior to the date the decision becomes effective.
(g) Provide notice. The person required to provide notice shall certify to the town that proper notice has been made and the certificate shall be deemed conclusive in the absence of fraud.
For similar state law provisions, refer to G.S. § 160D-406(j).
(16) Modifications. Minor modifications to special use permits shall be those that do not involve a change in uses permitted or the density of overall development permitted may be reviewed and approved administratively. Any modifications approved shall only be applicable to those properties whose owners apply for the modification. If the change requested involves a change in permitted uses or the density of the overall development, these are considered major changes and shall require a new special use permit process. For similar state law provisions, refer to G.S. § 160D-705(c).
(17) Cancellation by surrender of a special use permit.
(a) Any special use permit which has been previously approved may be offered for surrender by the property owner or his agent by submitting a written application to the Town Clerk.
(b) The town will accept the offer of surrender and cancel the special use permit if all the following conditions are met:
1. There are no existing zoning violations of the special use permit; and
2. The property is undeveloped or the existing use is permitted in the underlying zoning district.
(c) Approval of the application will result in the special use permit being cancelled and the property becoming subject to the existing underlying zoning district. Upon the cancellation of a special use permit, any expansion of an existing use or any new development must conform to all the requirements of the underlying zoning district.
(d) Following the cancellation, the designation of the previously approved special use permit will be removed from the official zoning map and the property will be shown to be in the appropriate underlying zoning district.
(18) Revocation. Revocation of a special use permit shall follow the same process for approval as is applicable to the approval of a special use permit.
(a) The Zoning Enforcement Officer or his or her designee, will have the authority to issue a notice of violation of a special use permit. The notice of violation will provide 30 days to correct the violation. If the violation is not corrected to the satisfaction of the Planning Director, then the Planning Director, or his or her designee, has the authority to send a letter of revocation of the special use permit. The owner of the property will have 30 days from receipt of the letter of revocation of the special use permit to appeal the violation determination to the Zoning Board of Adjustment.
(b) Subsequent to the completion of any appeals provided for in pertaining to the revocation of a special use permit, the special use for which the special use permit was granted must cease and the future use of the property must be in conformance with the standards of this chapter for the district where the property is located. Any use or development of the property commenced pursuant to the special use permit must conform or be brought into conformance with the standards of the district where the property is located. For similar state law provisions, refer to G.S. § 160D-705(c).
(19) Multiple parcels. If multiple parcels of land are subject to a special use permit, the owners of individual parcels may apply for permit modification so long as the modification would not result in other properties failing to meet the terms of the special use permit or regulations. For similar state law provisions, refer to G.S. § 160D-705(c).
(F) Duration.
(1) A special use permit issued by the town shall become null and void if construction or occupancy of the proposed use as specified on the special use permit has not commenced within one year of the date of issuance.
(2) Extension of time for a special use permit, not to exceed one one-year extension may be granted by the town upon review and recommendation by the Planning and Zoning Board, provided a request for such extension is submitted in writing prior to the original expiration date. In granting an extension, the town shall have no authority to amend the conditions of the special use permit or approve any major modifications to the approved plan.
(3) If the project is vested as prescribed under §§ 154.475 through 154.478 of this chapter, the statutory vesting expires for an uncompleted development project if development work is intentionally and voluntarily discontinued for a period of not less than 24 consecutive months, and the statutory vesting period granted by this section for a nonconforming use of property expires if the use is intentionally and voluntarily discontinued for a period of not less than 24 consecutive months. The 24-month discontinuance period is automatically tolled during the pendency of Any Board of Adjustment proceeding or civil action in a state or federal trial or appellate court regarding the validity of a development permit, the use of the property, or the existence of the statutory vesting period granted by this section. The 24-month discontinuance period is also tolled during the pendency of any litigation involving the development project or property that is the subject of the vesting.
For similar state law provisions, refer to G.S. § 160D-108(d).
(Ord. 23-241, passed 7-18-2023)