The following procedures pertain to conditional use permits that are not associated with a Parallel Conditional Use (PCUP) District.
(A) Purpose. There are many uses identified in this subchapter that are “uses by right” and that are allowed “by right” in each general zoning district subject to the use meeting certain area, height, yard, and off-street parking and loading requirements. In addition to these uses, there are some uses in these districts that are “conditional uses” are and subject to the issuance of a conditional use permit. The purpose of having conditional uses is to ensure that these uses are compatible with surrounding development and are in keeping with the purposes of the general zoning district in which they are located. There may be some uses that prior to adoption of this chapter were allowed as “uses by right” but now are allowed subject to a conditional use permit. For these uses, any expansion or modification to the uses would be subject to the issuance of a conditional use permit.
(B) Procedures. A pre-application meeting between the applicant and the administrator shall be required in order to familiarize the applicant of the procedure for securing approval of a conditional use permit. The administrator shall accept no conditional use permit application for review without such meeting having first occurred unless the administrator determines that such meeting would not serve any meaningful purpose and waives the meeting requirement. Procedures for application submittal are as follows.
(1) A complete conditional use permit application that is signed by the applicant and which is accompanied by a submittal fee (in accordance with a fee scheduled approved by the governing board) shall be filed with the administrator.
(2) The application shall be accompanied by a drawing or plan, drawn to scale, that includes or is accompanied by the following:
(a) Name, address, and phone number of the property owner (or his or her agent) and the property identification number of the property. (Note: the property owner or his or her authorized agents are the only two parties who may initiate a request for a conditional use permit);
(b) A boundary survey and vicinity map, showing the property’s total acreage, general location in relation to adjoining streets, railroads and/or waterways, date, and north arrow. The zoning classification of the property in question and contiguous properties shall also be shown. (In lieu of the boundary and survey maps, one or more up-to-date tax maps depicting the area in question may be submitted. Any required drawing or depiction of the proposed development or use shall not appear on the tax maps but rather shall appear on the drawing or plan);
(c) The name and addresses of all owners, tax parcel numbers, and existing land use(s) of all contiguous properties;
(d) Proposed use of all land and structures, including the number of residential units proposed, if any, and total square footage of nonresidential development;
(e) Location of all proposed structures, their approximate area and exterior dimensions, height, and proposed number of structures;
(f) A description of all screening and landscaping required by the this chapter and/or proposed by the applicant; the delineation of any wooded, landscaped, or grassed areas existing prior to development and proposed to remain on the property once the development is completed;
(g) All existing easements, reservations, and rights-of-way;
(h) Proposed phasing, if any, and approximate completion time for the project;
(i) Delineation of areas within the regulatory floodplain as shown on the official Federal Emergency Management Agency (FEMA) flood hazard boundary maps for the county;
(j) Traffic, parking, and circulation plans showing the proposed location and arrangement of parking spaces and ingress and egress to adjacent streets;
(k) A list, if any, of all additional development conditions or standards that differs from those that would normally apply to that use. Only conditions that exceed the requirements within this chapter’s minimum standards can be considered and listed by the applicant; and
(l) The administrator reserves the right to waive the depiction of some or all of the information contained in divisions (B)(2)(e) through (B)(2)(j) above, when, in his or her opinion, such information would serve no meaningful purpose for the particular conditional use being requested. Notwithstanding, if either the Board of Commissioners determines that additional information as set forth in divisions (B)(2)(e) through (B)(2)(j) above is needed to render a recommendation or decision on the application, they may require the applicant to submit such additional information.
(3) In the course of evaluating the proposed conditional use, the Board of Commissioners may request additional information from the applicant in order to assist in the review process. A request for such additional information shall stay any further consideration of the application by such agency. Such additional requested information may include, but shall not be limited to, the following:
(a) Storm water drainage plan;
(b) Existing and proposed topography at five-foot contour intervals or less;
(c) The existing and proposed location of all water and sewer lines and fire hydrants intended to serve the proposed development;
(d) Proposed number, type, and location of signs;
(e) A traffic impact study of the proposed development prepared by a qualified transportation or traffic engineer or planner. Information requested to be a part of the impact study may include:
1. Existing traffic conditions within the study area boundary;
2. Traffic volumes generated by the existing and proposed development on the parcel, including the morning peak, afternoon, or evening peak, and average annual daily traffic levels;
3. The distribution of existing and proposed trips through the street network;
4. Analyses of the capacities of intersections located within the study area boundary;
5. Recommendations for improvements designed to mitigate traffic impacts and to enhance pedestrian access to the development from the public right-of-way; and
6. Other pertinent information, including, but not limited to, accidents, noise, and impacts of air quality and other natural resources.
(f) Drawings of proposed building elevations; and
(g) An environmental impact statement that includes some or all of the following:
1. A cover sheet that provides, in summary form, a description of the proposed project;
2. A statement of purpose and need of the project;
3. For projects proposed by public entities, a list of alternatives of the proposed project;
4. A succinct description of the environment affected by the project;
5. A discussion of short and long term consequences of the project on the environment, including any adverse environmental impacts which cannot be avoided; and
6. A list of means that could be employed to mitigate any negative effects on the environment caused by this project.
(4) Except as herein provided, no application shall be deemed complete unless it contains or is accompanied by all items listed in division (B)(2) above and as may otherwise be required per division (B)(3) above and a fee, in accordance with a fee schedule approved by the governing board for the submittal of conditional use permit applications. Said fee shall be waived for any application submitted by any official or agency acting on behalf of the county or the state.
(5) Any completed application submitted shall be heard by the appropriate board for approval within 180 days. After the expiration of an application, a new application may be submitted following the current regulations in place at the time of the new application submittal.
(C) Public hearing notification.
(1) In order for a conditional use permit to be considered for approval, a public hearing must be held by the Board of Commissioners. Any complete application shall be submitted to the administrator at least 30 working days prior to the public hearing. This shall be sufficient time period for the staff to review the application and produce a staff report and to ensure that all applicable notification requirements can be met. Notification of the public hearing shall be as follows.
(a) A notice shall be published in a newspaper having general circulation in the county once a week, the notice to be published not less than ten days nor more than 25 days prior to the date established for the hearing.
(b) The administrator shall post at least one notice on the site for the proposed conditional use or an adjacent public street or highway right-of-way at least ten days prior to the public hearing. Where multiple parcels are included within the application, a posting on each individual parcel is not required, but the county shall post sufficient notices to provide reasonable notice to interested persons. Such notice shall state the date and time of the hearing, case number, and contact telephone number to obtain more information. The notice shall be removed only after final action has been taken on the matter.
(c) A notice of the public hearing shall be hand delivered or sent by first class mail by the administrator to the applicant and to all adjacent property owners at least ten days prior to the public hearing.
(D) Final decision.
(1) Conduct of public hearing. The Board of Commissioner’s public hearing shall be held in a quasi-judicial manner. In approving an application for a conditional use permit, the Board of Commissioner’s may attach fair and reasonable conditions to the approval. Such conditions shall be limited to those that address the impacts reasonably expected to be generated by the development or use of the site. The petitioner will have a reasonable opportunity to consider and respond to any additional requirements prior to approval or denial by the Board of Commissioners. In no instance shall any of these conditions be less restrictive than any requirements that would pertain to that particular development found in the zoning district in which the property is located and except where otherwise specifically allowed in this chapter. Such conditions may exceed any performance criteria or minimum requirements listed elsewhere in this chapter that pertain to that development. Such conditions shall be mutually agreeable by the county and the petitioner.
(2) Burden of proof.
(a) The applicant has the burden of producing competent, material, and substantial evidence tending to establish the facts and conditions that divisions (D)(2)(b)2. and (D)(2)(b)4. below require. If any person submits competent, material, and substantial evidence allegedly contrary to any of the facts or conditions listed in divisions (D)(2)(b)1. and (D)(2)(b)3. below, the burden of proof for overcoming such evidence shall rest with the applicant.
(b) The Board of Commissioners may only issue a conditional use permit if it has evaluated an application and found each of the following findings in the affirmative:
1. The use will not materially endanger the public health or safety if located where proposed and developed according to plan;
2. The use meets all required conditions and specifications;
3. The use will not substantially injure the value of adjoining or abutting property unless the use is a public necessity; and
4. 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 and will be in general conformity with the adopted land use plan and other plans for the physical development of the county as adopted by the Board of Commissioners.
(3) Additional review criteria/findings of fact. In addition to the findings of fact listed in division (D)(2) above, certain uses require the consideration of additional review criteria. Before a conditional use permit may be issued for said uses, the findings of fact listed in division (D)(2) above along with those pertaining to that individual use must each be found in the affirmative. (Note: in certain instances the findings contained in (D)(2) above shall be substituted with those so indicated.)
(4) Effect of approval.
(a) If an application for a conditional use permit is approved, the owner of the property shall have the ability to develop the use in accordance with the stipulations contained in the conditional use permit or develop any other use listed as a “permitted use” for the general zoning district in which it is located. Such approval, however, does not immediately authorize development activity, as the property owner will need to file for and secure a zoning permit, in order to proceed with development. The administrator shall ensure that any development plans submitted with such zoning permit request are consistent with the terms and conditions of the conditional use permit approved for such property or for any other use by right allowed in the underlying zoning district. If, however, a conditional use permit is issued in relation to the rezoning of a property to a Parallel Conditional Use (PCUP) District, the property may be used only for the development for which that conditional use permit was approved.
(b) Following approval of a conditional use permit authorizing specified permitted uses and/or specified development conditions, the county shall file and record a copy of the CUP in the office of the County Register of Deeds.
(5) Binding effect.
(a) Any conditional use permit herein authorized shall be perpetually binding to the property included in such permit unless subsequently changed or amended by the Board of Commissioners. All conditions contained in the conditional use permit shall run with the land and shall be binding on the original applicants, their heirs, successors, and assigns, unless subsequently changed or amended as provided for herein; however, the administrator may approve minor changes in the detail of the approved application. A “minor change” to the approved conditional use permit shall be deemed to be a change which:
1. Will not alter the basic relationship of the proposed development to adjacent property;
2. Will not increase the gross floor area of any nonresidential use by the smaller of 10% or 10,000 square feet (Note: such limitations shall be cumulative and shall be based on the gross floor area of the conditional use permit as originally approved);
3. Will not decrease the off-street parking ratio below the minimum number of parking spaces required by this section;
4. Will not increase the height of any structure to the extent that additional usable floor space could be added;
5. Will not result in an increase in the number of dwelling units constructed; or
6. Will not alter the uses permitted.
(b) Further changes to the development may be made only by the Board of Commissioners in accordance with divisions (B) through (D) above.
(c) No certificate of compliance for a use listed as a conditional use shall be issued for any building or land use on a piece of property which has received a conditional use permit for such particular use unless the building is constructed or used, or the land is developed or used, in conformity with the conditional use permit. In the event that only a segment of a proposed development has been approved, the certificate of compliance shall be issued only for that portion of the development constructed or used as approved.
(6) Period of validity of conditional use permit. Unless the Board of Commissioners issues a conditional use permit which either is specifically exempt from any time constraints or has some other specified time period for implementation, the applicant must secure a valid building permit (or certificate of compliance) within 24 months from date of issuance of the conditional use permit. If a building permit or certificate of compliance is not issued at the end of said time period, the conditional use permit shall automatically expire and shall be deemed rescinded. Such rescission shall not occur if the applicant has secured the vesting of a site development plan for a period of greater than 24 months. The town shall file and record a copy of the CUP in the office of the County Register of Deeds.
(E) Twelve-month limitation on reapplication.
(1) If a request for conditional use permit is denied, a similar application for the same property or any portion thereof shall not be filed until the expiration of a 12-month period from the date of denial. This waiting period shall not be applicable where the application for a conditional use permit is determined by the administrator to be substantially different from (such as, not similar to) the original application.
(2) Notwithstanding, the administrator may allow resubmission of a similar application within said 12-month period if he or she determines that since the date of action on the prior petition:
(a) There has been a significant change in the zoning district classification of an adjacent piece of property;
(b) The governing board has adopted a plan that changes public policy regarding how the property affected by the proposed conditional use should be developed;
(c) Construction or expansion of a road, water line, sewer line, or other such facilities has occurred to serve the property and can accommodate comfortably the intensity of development allowed under the proposed classification; or
(d) There has been some other extraordinary change in conditions or circumstances, outside the control of the petitioner, which justifies waiver of the 12-month restriction on a new petition; this, however, shall not include a change in the ownership of the subject property.
(F) Petition withdrawal.
(1) An applicant who has submitted a complete application for a conditional use permit may withdraw the application prior to a final decision being rendered.
(2) If said petition is withdrawn at least two working days prior to the Board of Commissioners public hearing, a similar petition submitted by that property owner (or his or her agent) shall not be accepted by the administrator within 180 days of the date of withdrawal.
(3) If said petition is otherwise withdrawn prior to a final decision being rendered, a similar petition submitted by that property owner/or his or her agent shall not be accepted by the administrator within one year of the date of withdrawal. Any new application shall be accompanied by the appropriate fee.
(G) Change in conditional use permit. Any request to materially change (such as, undergo a change other than one listed as a “minor change” in division (D)(5) above) to the conditional use permit once it has been issued shall require the issuance of a new conditional use permit. All notification and procedural steps and requirements as outlined in divisions (B) through (D) above shall be followed.
(H) Appeals. An appeal to the decision of the Board of Commissioners shall be filed with the Clerk of Superior Court in the nature of certiorari no later than 30 days after said decision has been filed in the administrator’s office and as otherwise provided for in applicable state general statutes.
(Prior Code, § 9-4049) (Ord. passed 7-10-2014)