(A) Applicability. Permission may be granted by the Board of Adjustment for the establishment of uses listed as special uses on the Table of Permitted Uses in Chapter 155.
(B) Submission. Two copies of the special use permit application shall be filed with the Zoning Administrator seven calendar days prior to the Technical Review Committee (TRC) meeting at which the special use permit request will be reviewed.
(C) Concurrent rezoning. If a rezoning is to be requested in connection with the request for a special use permit, complete applications for both processes must be filed concurrently with the Zoning Administrator. The rezoning request will proceed first through the appropriate rezoning process, pursuant to Chapter 160, with final approval by the Board of Commissioners (BOC). Upon BOC approval, the application for a special use permit will proceed through its normal approval process, pursuant to this chapter.
(D) Application. Applications for special use permits shall include a site plan as specified in § 153.10(F).
(E) Review and approval. The review process for a special use permit request shall include:
(1) Planning and Inspections Department and Technical Review Committee review; and
(2) Evidentiary hearing held by, and subsequent action by, the Board of Adjustment in accordance with the provisions of this chapter.
(F) Recommendations.
(1) The Planning and Inspections Department and Technical Review Committee (TRC) shall:
(a) Review the application for details, where applicable, of the site, situation, existing and proposed structures, architectural plans, neighboring land and water uses, proposed parking areas, driveway locations, highway access, traffic generation and circulation potential, drainage, waste disposal, water supply systems and the effects of the proposed use, structure, operation and potential changes in water quality, shoreland cover, natural beauty and wildlife habitat;
(b) Consider recommending conditions that may be placed in the granting of special use permit by the BOA. These conditions may include landscaping, architectural design, type of construction, construction commencement and proposed completion dates, sureties, lighting, fencing, location, size and number of signs, water supply and waste disposal systems, performance standards, street dedication, certified survey maps, flood-proofing, ground cover, sedimentation control from the project construction, terraces, stream bank protection, planting of buffer screens, operational control, hours of operation, number of employees, improved traffic circulation, deed restrictions, highway access restrictions, yard sizes or additional parking; and
(c) Check for compliance of the requested special use with all other relevant provisions of the UDO, such as lot dimensional requirements, building heights, parking and loading standards.
(2) When presented to the Board of Adjustment at the evidentiary hearing, the application for a special use permit shall be accompanied by a report setting forth the Planning and Inspections Department’s proposed findings concerning the application’s compliance with § 153.10(F) and the other requirements of the UDO, as well as any staff recommendations for additional requirements to be imposed by the Board of Adjustment.
(3) If the Zoning Administrator proposes a finding or conclusion that the application fails to comply with § 153.10(F) or any other requirement of the UDO, the Zoning Administrator shall identify the requirement in question and specifically state supporting reasons for the proposed findings or conclusions.
(G) Evidentiary hearing requirements and procedures.
(1) A special use permit shall not be approved until an evidentiary hearing following quasi-judicial procedures has been held by the Board of Adjustment (BOA) in accordance with the provisions of this section. The purpose of the evidentiary hearing is to gather facts, not to solicit citizen opinion. Consequently, the hearing procedures differ from those of a legislative hearing. In an evidentiary hearing, testimony may be provided only by sworn witnesses and written findings of fact and conclusions of law are required.
(2) The Zoning Administrator shall provide due notice of any evidentiary hearing following the procedures in § 159.07.
(3) At the conclusion of the evidentiary hearing, the BOA may proceed to vote on the permit request or take any other action consistent with its usual rules of procedure. Division (H) below delineates specific actions that the BOA must take on requests for special use permits.
(4) The BOA is not required to take final action on a special use permit request within any specific period of time, but it should proceed as expeditiously as practical on permit requests since inordinate delays can result in the applicant incurring unnecessary costs.
(5) Subject to division (G)(6) below, the BOA shall approve the requested special use permit unless it concludes, based upon the information submitted at the hearing, that:
(a) The requested special use permit is not within its jurisdiction according to the Table of Permitted Uses in Chapter 154;
(b) The application is incomplete; or
(c) If completed as proposed in the application, the development will not comply with one or more requirements of the UDO, including the standards of the zoning district in which it will be located.
(6) Even if the BOA finds that the application complies with all other provisions of the UDO, it may still deny the special use permit request if it concludes, based upon the information submitted at the hearing, that if completed as proposed, the development, more probably than not:
(a) Will materially endanger the public health or safety;
(b) Will constitute a nuisance or hazards;
(c) Will substantially injure the value of adjoining or abutting property;
(d) Will not be in harmony with the area in which it is to be located; or
(e) Will not be in general conformity with the land use plan or other plans and policies officially adopted by the Board of Commissioners.
(H) Action.
(1) Following the evidentiary hearing, the Board of Adjustment (BOA) may proceed to vote on the permit request or take any other action consistent with its usual rules of procedure. The BOA, in considering special use permit applications, acts in a quasi-judicial capacity and, accordingly, is required to observe quasi-judicial procedures, including requiring a simple majority vote to issue a special use permit. For purposes of this section, vacant positions on the BOA and members who have been disqualified from voting on a quasi-judicial matter shall not be considered “members of the Board” for calculation of the requisite majority.
(2) In considering whether to approve an application for a special use permit, the BOA shall proceed according to the following format.
(a) The BOA shall consider whether the application is complete. If the BOA concludes that the application is incomplete and the applicant refuses to provide the necessary information, the application shall be denied. A motion to this effect shall specify either the particular type of information lacking or the particular requirement with respect to which the application is incomplete. A motion to this effect, concurred in by a simple majority vote of the BOA, shall constitute the BOA’s finding on this issue. If a motion to this effect is not made and concurred in by a simple majority vote, this shall be taken as an affirmative finding by the BOA that the application is complete.
(b) The BOA shall consider whether the application complies with all of the applicable requirements of the UDO. If a motion to this effect passes by the necessary majority vote, the BOA need not make further findings concerning those requirements.
(c) If such a motion fails to receive the necessary majority vote or is not made, then a motion shall be made that the application be found not in compliance with one or more requirements of the UDO. Such a motion shall specify the particular requirements the application fails to meet. A separate vote may be taken with respect to each requirement not met by the application. If the BOA concludes that the application fails to meet one or more of the requirements of the UDO, the application shall be denied.
(d) If the BOA concludes that all such requirements are met, it shall issue the permit unless it adopts a motion to deny the application for one or more of the reasons set forth in § 153.13(A). Such a motion shall propose specific findings, based upon the evidence submitted, justifying such a conclusion.
(e) Decisions by the BOA on special use permit requests shall be filed in the Office of the Planning and Inspections Department. A copy of the BOA’s decision shall be provided, by first class mail, to the applicant as well as to any parties that have requested a written copy of the BOA’s decision.
(f) Decisions of the BOA regarding special use permit requests shall be subject to review by the Superior Court of Craven County by proceedings in the nature of certiorari (see Chapter 162).
(3) Pursuant to the requirements of G.S. § 160D-109, a member of the Board of Adjustment shall not participate in or vote on any quasi judicial matter in a manner that would violate affected persons’ constitutional rights to an impartial decision maker. Impermissible conflicts include, but are not limited to, a member having a fixed opinion prior to hearing the matter that is not susceptible to change, undisclosed ex parte communications, a close familial, business or other associational relationship with an affected person, or a financial interest in the outcome of the matter. If an objection is raised to a member’s participation and that member does not recuse himself or herself, the remaining members shall by majority vote rule on the objection.
(4) All approved special use permits shall be recorded with the Craven County Register of Deeds and indexed under the record owner’s name as grantor. Nothing authorized by the permit may be done until the record owner of the property provides documentation that indicates that the permit has been recorded.
(I) Reconsideration of action.
(1) Whenever the Board of Adjustment disapproves a special use permit application, on any basis other than the failure of the applicant to submit a complete application, that action may not be reconsidered by the BOA at a later time unless the applicant clearly demonstrates that:
(a) Circumstances affecting the property that is the subject of the application have substantially changed; or
(b) New information is available that could not with reasonable diligence have been presented at a previous hearing. A request to be heard on this basis must be filed with the Zoning Administrator within the time period for an appeal to superior court (see Chapter 162). However, such a request does not extend the 30-day period within which an appeal must be taken.
(2) The BOA may, however, at any time consider a new application affecting the same property as an application previously denied. A new application is one that differs in some substantial way from the one previously considered.
(3) The BOA shall, by a majority vote, make the determination as to whether or not an amended application meets the criteria delineated in division (I)(1) above for a rehearing or qualifies as a new application pursuant to division (I)(2) above.
(Ord. passed 7-25-2011; Ord. 21-O-04, passed 6-28-2021; Ord. 22-O-01, passed 1-24-2022; Ord. 23-O-07, passed 4-10-2023)