(A) Permit required. When required, no zoning or building permit shall be issued until a special use permit for the requested use has been approved by the Board of Adjustment.
(B) Applicants. A request for a special use permit will be considered only if requested by the owner of the property in question or an authorized agent of the property owner.
(C) Applications. Applications for all special use permits or amendments to any approved special use permit must be filed with the Zoning Administrator. Applications which are not complete shall be returned to the applicant, with a notation of the deficiencies in the application. The Zoning Administrator has the authority to waive any application requirements where the type of use or scale of proposal makes that information unnecessary or impractical. A complete application will include all of the following:
(1) A completed application form signed by all of the property owners of the area proposed for the permit or a completed application form signed by the developer along with an affidavit signed by all property owners giving the applicant the permission to pursue the permit and to bind the property to the proposal and to conditions which the Board might impose;
(2) A complete explanation of the proposed use(s) of the property;
(3) A Level 2 site plan;
(4) Documentation containing facts which will be used to support the petition, including, but not limited to, deed restrictions, letter of sufficiency regarding public water and sewer, proposed homeowners association documents and appropriate county and state approvals;
(5) All appropriate fees;
(6) A complete listing of all abutting owners of property, their addresses and tax identification numbers;
(7) A synopsis or overview of the project, including information relevant to use, density, lot layout, housing type, planned amenities and the like; and
(8) Any other information deemed by the Zoning Administrator to be necessary for sufficient review of the application.
(D) Staff review.
(1) Sketch plan. Prior to submission of the complete application, all subdivision developers are required to submit a sketch plan for staff review. Preparation and review of the sketch plan shall conform to the requirements of the town’s subdivision regulations.
(2) Applications. All applications for special use permits shall be reviewed by the Zoning Administrator and the Technical Review Committee prior to Board of Adjustment review. The Zoning Administrator shall determine the number of copies to be submitted by the applicant to ensure that there are sufficient copies to send to the Board, the Technical Review Committee and all other appropriate agencies for review and comment. The applicant shall submit a completed application no later than 30 working days prior to the Board meeting at which the application is to be heard. If the application is found to be incomplete or the development is found to be in conflict with the requirements of this section, the developer shall be notified and the application rejected.
(3) Cooperation. The developer is strongly encouraged to work closely with staff and neighboring property owners before and during the application and review process to minimize delays and address concerns which may arise in the review process.
(4) Prior to the action on the proposed special use permit, staff may meet with the petitioner to discuss the proposed plan and suggest features to be included in the special use permit proposal. The specifics of the plan may be negotiated to address community issues or concerns and to insure that the spirit and intent of this chapter are preserved. During the evidentiary hearing, the Board of Adjustment may suggest additional features to be included or reflected in the proposal prior to taking action on the request.
(E) Hearing.
(1) A special use permit hearing will be conducted as a quasi-judicial hearing before the Board of Adjustment.
(2) The applicant has the burden of producing competent, material and substantial evidence establishing that:
(a) The proposed special use will comply with all of the lot, size, yard and other standards of this article, except as may be amended through an approved variance or special exception permit; and
(b) The proposed special use will comply with all general and specific standards required by the appropriate section of this article for the issuance of a special use permit for this use.
(F) Board of Adjustment action.
(1) Review. The Board of Adjustment shall review the application to determine compliance with this article and all applicable regulations within the town’s planning jurisdiction. When deciding special use permits, the Board of Adjustment shall follow quasi-judicial procedures.
(2) Required general findings. No special use permit shall be approved by the Board of Adjustment unless the following general findings of fact are made concerning the proposed special use:
(a) The use will not materially endanger the public health or safety if located, designed and proposed to be operated according to the plan submitted;
(b) The use complies with all regulations and standards of this article;
(c) The use will not substantially injure the value of adjoining property or the use is a public necessity;
(d) The location and character of the use, if developed according to the plan as submitted and approved, will be in harmony with the area in which it is to be located;
(e) Public water and sewer service are available in adequate capacity, if needed;
(f) The proposed use will not be in conflict with the objectives of the most detailed plan adopted for the area in which it is located; and
(g) No change in permitted uses may be authorized by the variance.
(G) Decision. In considering an application for a special use permit, the Board of Adjustment may attach reasonable and appropriate conditions and safeguards to the location, nature and extent of the proposed use and its relationship to surrounding property, for the purpose of insuring that the conditions of permit approval will be complied with and any potentially injurious effect of the special use on adjoining properties, the character of the neighborhood or the health, safety and general welfare of the community will be minimized. The conditions may relate to parking areas and driveways, pedestrian and vehicular circulation systems, screening and buffer areas, intensity of site development, the timing of development and other matters the Board of Adjustment may find appropriate or the applicant may propose. The applicant will have a reasonable opportunity to consider and respond to any additional conditions or requirements prior to final action by the Board of Adjustment. Reasonable and appropriate conditions and safeguards may be imposed upon these permits. 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 local government 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, 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.
(H) Withdrawal or amendment of a special use permit application. An application for a special use permit may be withdrawn or amended as follows:
(1) A petition filed according to this section may be withdrawn by the petitioner at any time up to the scheduling of the date of the public hearing on the petition.
(2) Once the petition has been filed, the petitioner shall not be allowed to amend it, except by request to the Zoning Administrator no later than three weeks prior to the scheduled public hearing date. No changes to the petition shall be accepted in the intervening weeks prior to the public hearing. No changes to the petition shall be made at the hearing, except that changes proposed by the petitioner, Board of Adjustment and other interested parties may be presented at the hearing and considered by the Board of Adjustment during their deliberations.
(3) If the Board of Adjustment deems any amendment to be a substantial change to the petition, it shall defer action on the petition for 30 days to allow interested parties the opportunity to comment on the amendment to the petition.
(I) Effect of approval. An approved application for a special use permit and all conditions which may be attached to the approval are binding on the property. All subsequent development and use of the property shall be in conformance with the special use permit and all plans, specifications and conditions unless such are amended or the permit terminated by the Board of Adjustment.
(J) Effect of denial. The Board of Adjustment may allow re-submission of the application if it determines that, since the date of action on the prior application, one of the following criteria has been met:
(1) The Town Board has adopted a new or amended plan for the area that changes public policy regarding how the subject property and/or the general area affected by the special use permit should be developed;
(2) Construction or expansion of a road, water line, sewer line or other infrastructure has occurred or is to occur in a time frame as to serve the property and comfortably accommodate the type and intensity of development which would be allowed under the proposed special use permit; or
(3) There has been a substantial change in conditions or circumstances, outside the control of the applicant, which justifies waiver of the one-year restriction on resubmission of a special use permit application for the property; this shall not include a change in the ownership of the subject property nor a change in the scale or features of the development proposed in the prior application.
(K) Amendment to an approved special use permit.
(1) Any major change to a development approved by special use permit shall require an amendment to the special use permit by the Board of Adjustment. Any proposed change in use, increase in density or intensity, decrease in open space and common recreational facilities, substantial change in the location of uses or streets from what is shown on the approved plans, any change in a condition imposed on the use by the Board of Adjustment or any other change the Zoning Administrator determines is significant shall be deemed a major change requiring an amendment to the special use permit. Factors to be considered by the Zoning Administrator in determining if a change is substantial include, but are not limited to, the extent of the change, the expected impact on adjacent properties and the impact on off-site streets and other public infrastructure. Otherwise, minor changes to a permit may be approved by the Zoning Administrator.
(2) The owner of property which is subject to an approved special use permit may petition for an amendment of the special use permit and accompanying conditions by following the procedures applicable to initiation of new special use permits.
(L) Recognition of previously approved special use permits. Special use permits which have been previously granted by the Board of Adjustment of the town and special use permits previously granted by the County Board of Adjustment will be recognized for building permit and other administrative purposes during the period of time the project was vested by the ordinance under which it was approved. After the vesting period, if construction of the development has not begun or there is no valid building permit in effect for the property, the special use permit will be considered null and void.
(M) Revocation of a special use permit.
(1) If, at any time, the Zoning Administrator determines that construction inconsistent with the approved special use permit is occurring within the development, he or she shall cause to be issued a stop work order on the construction and he or she shall notify the responsible parties of the violation who will immediately cease and desist further work on the project.
(2) If the non-conformance involves a completed, unoccupied building, no certificate of occupancy shall be granted for the building until the violation is corrected. If the non- conformance involves initial construction or provision of any of the public facilities, open space, required landscaping or similar common features of the approved permit, no building permits or certificates of occupancy will be issued within the development until the violation is corrected or an amended or new special use permit has been granted by the Board of Adjustment.
(3) Action to revoke a permit shall be taken by the Board of Adjustment after receiving a request from staff. A request shall be in writing and shall declare that the applicant and all property owners within the development, as recorded at the Register of Deeds office, have been notified at least ten days before the meeting of the pending action and the date, time and place of the Board of Adjustment meeting at which the request will be made. The applicant and property owners shall have the right to appear before the Board of Adjustment at the meeting and show cause why the Board of Adjustment should not revoke the permit. Notification shall be deemed given when written notice is sent by first class mail to the property owner at the address shown on the most recent property tax records and one or more signs are posted in prominent locations on the subject site reasonably calculated to give notice of the action.
(N) Expiration of a special use permit. Approval of a special use permit shall confer upon the developer all vested rights as set forth in this article.
(2003 Code, § 8-3.9.4) (Updated 2009) (Amended 6-1-2021)