(a) Application submittal requirements. Applications for special use permits shall be filed with the planning director. The planning director shall prescribe the form on which applications are made. Applications shall include the name and address of the applicant, the name and address of the property owner of each zoning lot involved, and the relationship of the applicant and property owner in connection with the application. If the applicant or property owner is an entity other than an individual, the application shall also include detailed information regarding the principals of the entity. The application shall include a conceptual site plan and a statement (design criteria) of how the proposed development would provide consistency with article VI of this chapter. The planning director shall prescribe any other material that may reasonably be required to determine compliance with this article, with sufficient copies for necessary referrals and records. No application shall be accepted by the planning director unless it complies with such requirements. For the purposes of this chapter, an incomplete application is considered to have not been submitted and shall be returned forthwith to the applicant, with a notation of the deficiencies in the application.
(1) Traffic impact analysis required in accordance with Johnston County Land Development Code section 14-366; the county's traffic consultant fee must be paid in full at the time the special use permit application is submitted, otherwise the application will be considered incomplete.
(b) Planning director's analysis. Upon receipt of a completed application, the planning director shall cause representatives of the county and such other agencies or officials as may be appropriate to determine compliance with the provisions of this article, the comprehensive plan, and in the case of planned developments to define specifically the modifications of regulations which seem justified in view of the standards set out in section 14-257(j).
(c) Planning director's report to planning board. The planning director shall submit to the planning board a written analysis of a special use permit application and his recommendations based on the findings required in section 14-253. The planning board shall provide a preliminary forum for review of special use permit applications, provided that no part of the forum or recommendation may be used as a basis for the decision made on each case by the board of commissioners.
(d) Notice of evidentiary public hearing. After receiving the planning director's report as described in subsection (c) of this section, the board of commissioners shall hold an evidentiary public hearing on the application. Notice of date, time and place of the evidentiary public hearing shall be published in a newspaper of general circulation in the county once a week for two successive weeks, with the first notice to be published not less than ten nor more than 25 days prior to the date of the hearing. Notice of the evidentiary public hearing shall also be mailed to the person or entity whose appeal, application, or request is the subject of the hearing; to the owner of the property that is the subject of the hearing if the owner did not initiate the hearing; and to the owners of all parcels of land abutting the parcel of land that is the subject of the hearing. In the absence of evidence to the contrary, the county may rely on the county tax listing to determine owners of property entitled to mailed notice. 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 county 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.
(e) Administrative materials. The planning director shall transmit to the board of commissioners all applications, reports, and written materials relevant to the matter being considered. 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. The administrative materials shall become a part of the hearing record. The administrative materials may be provided in written or electronic form. 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.
(f) Appearance of official. The official who made the decision, if there was one, or the person currently occupying that position, if the decision maker is no longer employed by the local government, shall be present at the evidentiary hearing as a witness.
(g) Oaths. 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. Any person who, while under oath during a proceeding before the board determining a quasijudicial matter, willfully swears falsely is guilty of a Class 1 misdemeanor.
(h) Subpoenas. The board of commissioners through the chair or, in the chair's absence, anyone acting as chair may subpoena witnesses and compel the production of evidence. To request issuance of a subpoena, the applicant, the local government, and any person with standing under G.S. 160D-1402(c) 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. 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. If a person fails or refuses to obey a subpoena issued pursuant to this subsection, 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.
(i) Presentation of evidence. The applicant, the county, and any person who would have standing to appeal the decision under G.S. 160D-1402(c) shall have the right to participate as a party at the evidentiary public hearing. Other witnesses may present competent, material, and substantial evidence that is not repetitive as allowed by the board. The board of commissioners may place reasonable and equitable limitations on the presentation of evidence and arguments and the cross-examination of witnesses to avoid undue delay. All persons who intend to present evidence and arguments at the public hearing shall be sworn. The applicant shall bear the burden of presenting evidence sufficient to establish persuasively that the proposed development will comply with the determinations required in section 14-253. Opinion testimony of lay witnesses as to any of the following shall not be considered evidence for the purposes of these proceedings, and shall not be considered by the board of commissioners in deciding special use permit cases:
(1) The use of property in a particular way affects the value of other property.
(2) The increase in vehicular traffic resulting from a proposed development poses a danger to the public safety.
(3) Matters about which only expert testimony would generally be admissible under the rules of evidence.
(j) 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. 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.
A record of the proceedings of the hearing shall be made and shall include all documentary evidence presented at the hearing.
(k) Conditions of approval. Reasonable and appropriate conditions and safeguards may be imposed upon special use permits. The petitioner and landowner must provide written consent to all conditions. 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. Conditions and safeguards imposed under this subsection shall not include requirements for which the county does not have authority under statute to regulate nor requirements for which the courts have held to be unenforceable if imposed directly by the county, 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.
(l) Board of commissioners action. The board of commissioners shall review the planning director's report, and the planning board's recommendation and shall act on a special use permit application based on the findings required in section 14-253. All findings shall be based on competent, material, and substantial evidence presented at the public hearing. Action on the application shall be one of the following:
(1) Approval;
(2) Approval subject to conditions; or
(3) Denial.
Each final 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. The decision is effective upon filing the written decision with the planning director.
(m) Effect of denial or withdrawal on subsequent application. When the board of commissioners has denied an application for a special use permit, or the applicant has withdrawn his application by written notice after publication of the first public hearing notice required in subsection (d) of this section, the planning director shall not accept another application for approval of the same or similar special use or planned development, affecting the same property, or a portion thereof, until 12 months have elapsed from the date of denial or withdrawal, as appropriate.
(n) Notice of decision and issuance of permit. The planning director shall deliver the decision of the board of commissioners within a reasonable time by personal delivery, electronic mail, or first-class mail to the special use permit applicant, landowner, and any person who has submitted a written request for a copy prior to the date the decision becomes effective, and shall file a copy of it with the county's planning department. The planning director shall certify to the local government that proper notice has been made, and the certificate shall be deemed conclusive in the absence of fraud. If the application is approved or approved with conditions, the planning director shall issue the necessary special use permit in accordance with the action of the board of commissioners. The applicant shall record such permit in the office of the county register of deeds. No subsequent permit application will be accepted by the county until the special use permit is recorded. The special use permit, including all conditions attached thereto, shall run with the land and shall be binding on the original applicant as well as all successors, assigns, and heirs.
(o) Appeal of decision. The board of commissioners decision on an application for a special use permit may be appealed to superior court within 30 days of the decision by an action in the nature of certiorari. Failure to appeal within the time allocated shall be deemed a waiver of appeal. Note: G.S. 160D- 406(k) specifies the appeal process.
(p) Final plan approval. The planning director shall not issue a land use permit for development approved in a special use permit unless and until such special use permit has been recorded with the county register of deeds and the planning director has approved final plans for the development as a whole, or for phases thereof deemed satisfactory in relation to total development. Approval of final plans shall be based on compliance with all applicable regulations and requirements, including conditions attached to the special use permit.
(Ord. of 7-10-2000, § 6.4; Amend. of 11-8-2004; Amend. of - - )