An application for a special use permit must be signed by the owner of the subject property.
A. Filing. An application for special use must be prepared in accordance with the common review procedures pursuant to common review procedures of this chapter and submitted to the planning and development department at least 45 days prior to the meeting of the Board of Adjustment at which such an application is to be considered.
B. Procedure. Applications for special use must be processed, considered, and voted upon in accordance with Article 1 Common Review Procedures.
C. Evidence at Hearing. All evidence presented at public hearings on a special use request must be under oath.
D. Required Findings.
1. The special use request must be granted by the Board of Adjustment when all of the following findings have been made:
a. That the proposed use will not be detrimental to the health or safety of persons residing or working in the vicinity or injurious to property or improvements in the vicinity;
b. That the proposed use at the particular location provides a service or facility that will contribute to the general well-being of the neighborhood or the community; and
c. That the location and character of the proposed use will be in harmony with the area in which it is to be located and in general conformity with the Comprehensive Plan.
2. lf the Board of Adjustment does not make these findings, then the special use request may not be granted.
3. Review Factors. The applicant must demonstrate that the review factors listed below have been adequately addressed. If an application is denied, the decision-making body must specify which of these review factors were not adequately addressed.
a. Circulation. Number and location of access points to the property and the proposed structures and uses are provided with particular reference to automotive, bicycle, and pedestrian safety and convenience, traffic flow and control, and access in case of fire or catastrophe.
b. Parking and Loading. Location of off-street parking and loading areas are sufficiently provided.
c. Service Entrances and Areas. Locations of refuse and service areas are provided with particular reference to ingress and egress of service vehicles.
d. Lighting. Locations of exterior lighting are provided with reference to glare, traffic safety, economic effect and compatibility with other property in the area.
e. Signs. Appropriateness of signs considering location, height, size, and design within the context of other property in the area.
f. Utilities. Location and availability of utilities is provided.
g. Open Spaces. Location of required yards and other open spaces and preservation of existing trees and other natural features is provided.
h. Environmental Protection. Is in compliance with landscape, floodplain, watershed, wetlands, steep slopes, open space and other natural feature requirements.
i. Screening, Buffering and Landscaping. Installation of screening, buffering, fencing and landscaping where necessary to protect adjacent property is provided.
j. Effect on Adjacent Property. Effects of the proposed use on nearby property, including, but not limited to, the effects of noise and odor are mitigated.
k. Compatibility. The level of general compatibility with nearby properties and the appropriateness of the use in relationship to other properties are provided.
E. Greater Restrictions. In granting a special use request, the Board of Adjustment may impose more restrictive requirements as deemed necessary to advance the purposes and intent of the UDO, provided that such requirements are directly related to the impacts of the proposed use, and agreed to in writing by the applicant.
F. Permit Perpetually Binding. Unless expired or discontinued, approved special use requests must be perpetually binding upon the property unless subsequently changed or amended in accordance with this section or a use otherwise permitted in the zoning district is established.
G. Substantial Changes, Amendments, and Modifications to a Special Use Approval.
1. The Planning and Development Director is authorized to determine when a development proposal constitutes a substantial change to a condition of approval imposed through a special use permit or other development approval process, in accordance with the following regulations.
a. A change will be deemed substantial if it:
i. Decreases the number or extent of mixed-use features, including combinations of different land uses, integrated site design, strong pedestrian and vehicle connectivity, and strong orientation of buildings to streets (sidewalks);
ii. Decreases use of compatible design features, including architectural styles and materials, signage and lighting, and site layout, among both internal development and with appropriate adjacent external development;
iii. Decreases pedestrian features, including added sidewalks, crosswalks, bus stops, pedestrian amenities, small block site layout or internal and external pedestrian connections; or
iv. Changes the use category is the same per Sec. 4-3.2, within any portion of the development.
b. A change will not be deemed substantial if it reduces impacts on surrounding properties in one or more of the following ways:
i. A greater than 10% decrease in the intensity of the land uses proposed on the site (e.g., number of housing units or gross floor area);
ii. A greater than 10% increase in proposed setbacks by locating the proposed buildings closer to internal property lines without increasing the setbacks of proposed buildings from public streets;
iii. A significant increase in the visually obscuring buffers along the perimeter of the site (not including toward streets) that includes preserved vegetation, added landscaping, walls and fences, or the use of topography;
iv. A decrease in the traffic impact due to a significant decrease or shift in the number, location or configuration of access points to or additional road improvements for the development; or
v. A greater than 10% increase in the amount of usable or passive open space, tree preservation, greenways, or trails provided on the site.
H. Approval of Amendments and Modifications.
1. The Planning and Development Director may allow a non-substantial change or amendment to a special use permit if the amendment or modification meets the criteria of subsection (b) above.
2. The Board of Adjustment may allow a substantial change or amendment to a special use permit by following the same procedure as that required for the original approval of the special use.
I. Cancellation of Permit. If for any reason any restriction imposed pursuant to these regulations is found to be illegal or invalid, such special use approval immediately becomes null and void and of no effect.
J. Violation of Permit Restrictions. Any violation of a restriction in an approved special use must be treated the same as any other violation of the UDO, subject to the same remedies and penalties as any such violation. The Board of Adjustment may, after a hearing, revoke such permit on all or part of a development if it finds that the violation was intentional, was continued for an unreasonable time, or was substantially inconsistent with the purpose and intent of the permit.
K. Permit Duration.
1. Authorization of a special use permit is void after two (2) years or such lesser time as the authorization may specify unless use of the property has begun and/or a footing inspection has been passed.
2. If any special use is discontinued for a period exceeding 18 months or replaced by a use otherwise permitted in the zoning district, it shall be deemed abandoned and the special use permit shall be null and void and of no effect. The owner must demonstrate that the special use has not been discontinued for a period exceeding 18 months or has not been replaced by a use otherwise permitted to maintain a valid special use permit.
L. Successive Applications. Successive applications for the same special use permit on a given property may be made after one year has passed since the date of the final action on the previous special use permit.
M. Appeal. Pursuant to Sec. 3-7.5 final decisions made by the Board of Adjustment may be appealed within 30 days to the McDowell County Superior Court who must hear the appeal on the record.
(Ord. No. O-21-06-15-5, §1, 6-15-21)