(A) Objectives and purpose. Permitting special uses adds flexibility to the unified development ordinance. Subject to high standards of planning and design, certain uses are allowed in districts where they are compatible but where adverse impacts need to be minimized. By means of controls exercised through the special use permit procedures, these uses can be developed to minimize any bad effects they might have on surrounding properties.
(B) Granting authority.
(1) Special use permits must be approved by the Board of Aldermen.
(2) Requests for special use permits granted by the Board of Aldermen shall be initially reviewed by the Planning Board. The Planning Board shall pay particular attention to consistency of the proposed use with the CAMA Land Use Plan. At the meeting set by the Board of Aldermen for a evidentiary hearing, the Planning Board's written comments shall be presented, along with the staff report and are not subject to the rules of sworn evidence.
(C) Application submission.
(1) The owner(s) or anyone with a possessory interest entitled to exclusive possession or anyone with a contractual interest soon to be a freehold interest in the property included in the petition for a special use permit shall submit an application to the Zoning Administrator at least 30 days before the meeting of the Board of Aldermen at which it is to be heard.
(2) It is recommended that the applicant or his or her representative meet with the Zoning Administrator before beginning the application process to discuss the proposed plans and the special use process.
(3) The application shall include all of the requirements pertaining to it in this ordinance. In addition, the application shall demonstrate compliance with the provisions identified for each special use identified in this ordinance. Without complete information, the application shall not be processed by the Zoning Administrator.
(4) The applicant shall submit sufficient information in order to provide a full and accurate description of the proposed use including its appearance and operational characteristics. The burden is on the applicant to present sufficient evidence to allow the appropriate board to make a finding that all the standards will be met.
(5) At the time of submission, applicants shall pay a fee according to the fee schedule approved by the Board of Aldermen to partially defray the costs of processing the application.
(D) Review procedures for special use permit.
(1) Notice of public evidentiary hearing. Upon receipt of a complete application for a special use permit, a public hearing shall be scheduled for an upcoming meeting of the Board of Aldermen. Notice of a public hearing shall be provided in the following manner.
(a) The Zoning Administrator shall provide written notice by first class mail at least ten days before the hearing to all parties to the proceeding and to owners of all parcels of land abutting the parcel for which the special use permit is sought. Names and addresses of property owners shall be obtained from property tax listings.
(b) Notice shall also be provided by newspaper publication of the location and subject of the request. Such notice shall run at least once each week for two successive weeks before the Board of Aldermen meeting at which the hearing is set for consideration of the request. The notice shall be published for the first time not less than ten, nor more than 25 days before the date fixed for the hearing.
(c) Notice shall also be posted by the town on the property subject to the request. Notice shall be posted at least one week before the scheduled hearing at which the request is to be heard.
(2) Public evidentiary hearing and action by Board of Aldermen. Upon receipt of a complete application at least 30 days before a meeting of the designated Board, the Board shall consider the applicant's request. All evidence presented at the public hearing shall be under oath, and evidence shall be competent, substantial and material. Following the public hearing, the Board shall act on the applicant's request by either granting or denying the request.
(3) Voting. When voting on the applicant's request for a special use permit, a majority vote of the Board of Aldermen shall be required to grant the request. Vacant seats and disqualified members are not counted in computing the necessary majority vote. If the Board grants the special use permit, the approval shall include approval of required plans as submitted.
(4) Conflicts. A member of the Board of Aldermen 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.
(5) Findings. In granting the permit, the Board of Aldermen shall make a written decision that:
(a) Identifies the key facts of the case and applies these facts to the following standards. The Board must find that all of these conditions exist, or the application will be denied;
(b) The use or development is located, designed and proposed to be operated so as to maintain or promote the public health, safety and general welfare;
(c) The use or development complies with all required regulations and standards of this ordinance and with all other applicable regulations; and
(d) The use or development conforms to the plans for the land use and development of town as embodied in this zoning ordinance and in the town CAMA land use plan.
(6) (a) Additional conditions. In granting the special use permit, the Board may designate additional conditions that will, in its opinion, assure that the use in its proposed location will be harmonious with the area in which it is proposed to be located, is within the spirit of this ordinance and clearly in keeping with the public welfare.
(b) All such additional conditions shall be entered into the minutes of the meeting, at which the special use permit is granted, on the special use permit itself and on the approved plans. The Board must obtain applicant's/landowner's written consent to conditions related to a special use permit to ensure enforceability. (S.L. 2019-111, Pt. I.) The special use permit and any other specific conditions shall run with the land and shall be binding on the original applicants, their heirs, successors and assigns. The Board must not impose conditions on special use permits that the local government does not otherwise have statutory authority to impose. (S.L. 2019-111, Pt. I.)
(7) Denial. If the specified board denies a request for a special use permit, it shall enter the reasons for its action in the minutes of the meeting at which the action was taken. A letter signed by the Zoning Administrator is mailed to the applicant identifying the reasons for denial.
(8) Approvals and copies. Upon approval of the request for a special use permit, a copy of the plan shall be dated and signed by the Zoning Administrator, denoting town approval. One copy shall be returned to the applicant.
(9) Appeal of decision. Appeal may be taken from the action of the Board of Aldermen in granting or denying a special use permit through Superior Court of the county. Any petition for review shall be filed with the Clerk of Superior Court within 30 days after a decision of the board is filed in the office of the Town Clerk, or after a written copy of the decision is delivered to every aggrieved party who has filed a written request for such copy with the Clerk at the time of the hearing of the case, whichever is later. The decision of the authorized board shall be delivered to the aggrieved party either by personal service or by registered mail or certified mail return receipt requested.
(10) Failure to comply with plans or conditions. In the event of failure to comply with the plans approved by the Board of Aldermen or with any other conditions imposed upon the special use permit, the permit shall thereupon immediately become void and of no effect. No building permits for further construction or certificates of occupancy under this special use permit shall be issued, and all completed structures shall be regarded as nonconforming uses subject to the provisions of this ordinance; provided, however, that the Board of Aldermen shall not be prevented from thereafter rezoning said property for its most appropriate use.
(Ord. passed 7-1-2021)