4.9.1 Purpose and applicability.
This ordinance provides for a number of uses to be located 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, this ordinance allows some uses to be allowed in these districts on a special use basis subject to issuance of a special use permit by the Town Council. Uses requiring a special use permit are shown in Article 7.15.
The purpose of having these uses be special is to ensure that they would be compatible with surrounding development and in keeping with the purposes of the general zoning district in which they are located and would meet other criteria as set forth in this section.
A special use permit allows flexibility within the zoning ordinance. A zoning ordinance cannot account for every situation, and the special use permit gives the decision authority discretion to allow uses for the benefit of the neighborhood that are not otherwise specifically allowed.
4.9.2 Approval process. The deadline for which a special use permit application shall be filed with the UDO Administrator is the first business day of the month. The application shall be accompanied by a site plan drawn to scale, and necessary supporting text which shall include the following the information:
A. Name, address, and phone number of the property owner or his or her agent, and the tax parcel number of the property. The property owner or an authorized agent are the only two parties who may initiate a request for a special use permit;
B. A boundary survey and vicinity map, showing the property’s total acreage, zoning classification(s), general location in relation to adjoining streets, railroads, and/or waterways, date, and north arrow;
C. The owner’s names and addresses, tax parcel numbers, and existing land use(s) of all adjoining properties;
D. Proposed use of all land and structures including the number of residential units, if applicable;
E. Proposed number and location of all structures, their approximate area, and their approximate exterior dimensions;
F. All existing easements, reservations, and rights-of-way;
G. Delineation of areas within the regulatory floodplain, as shown on the official Federal Emergency Management Act (FEMA) flood hazard boundary maps for the town; and
H. Traffic, parking, and circulation plans, showing the proposed location and arrangement of parking spaces and ingress and egress to adjacent streets.
4.9.3 Additional information.
A. In the course of evaluating the proposed special use, the Town Council may request additional information from the applicant. A request for any additional information may temporarily suspend any further consideration of the application by the Town Council.
B. This information requested may include, but shall not be limited to, the following as considered necessary by the Town Council:
1. Stormwater drainage plan;
2. Existing and proposed topography at five-foot contour intervals or less;
3. The existing and proposed location of all water and sewer lines and fire hydrants intended to serve the proposed development;
4. Proposed number, type, and location of signs;
5. A transportation impact analysis of the proposed development prepared by a qualified transportation or traffic engineer or planner as defined by Article 4.11;
a. A cover sheet which provides, in summary form, a description of the proposed project;
b. A statement of purpose and need of the project;
c. For projects proposed by public entities, a list of alternatives of the proposed project;
d. A succinct description of the environment affected by the project;
e. A discussion of short and long-term consequences of the project on the environment, including any adverse environmental impacts which cannot be avoided; and
f. A list of means which could be employed to mitigate any negative effects on the environment caused by this project.
7. A description of all screening and landscaping required by these regulations and/or proposed by the applicant; and
8. Proposed phasing, if any, and approximate completion time for the project.
4.9.4 Application completeness.
A. No application shall be deemed complete unless it contains or is accompanied by all items listed in Article 4.9.2 and as may be required by Article 4.9.3 and a fee, in accordance with a fee schedule approved by the Town Council for the submittal of special use permit applications (see Article 2.17).
B. Eight copies of an application, and all attachments and maps, for a special use permit shall be submitted to the town.
C. Once complete, the UDO Administrator shall notify the Board of Adjustment that an evidentiary hearing must be scheduled.
4.9.5 Review of approval of a conditional zoning district.
A. It is intended that property shall be reclassified to a conditional zoning district only in the event of firm plans to develop the property. Therefore, no sooner than three years after the date of approval of the petition, the UDO Administrator may examine the progress made toward developing the property in accordance with the approved petition and any conditions attached to the approval.
B. A report of the findings of the UDO Administrator may be provided for Planning Board consideration, which may then recommend that the property be rezoned to its previous zoning classification or to another district
4.9.6 Notice/hearing.
A. Special use permit cases are quasi-judicial, and all witnesses are to be sworn in.
B. Prior to the Town Council making a decision on a special use permit, a quasi-judicial evidentiary hearing shall be conducted. A quorum of the Board is required for this hearing. Mailed and posted notice of the hearing shall be in accordance with Article 4.1.4.
1. Evidence/presentation of evidence.
a. All persons who intend to present evidence to the Board of Adjustment shall be sworn.
b. All findings and conclusions necessary to the issuance or denial of the requested permit or appeal (necessary findings) shall be based upon reliable evidence. Competent evidence (evidence admissible in a court of law) shall be preferred whenever reasonably available, but in no case may necessary findings be based solely upon incompetent evidence unless competent evidence is not reasonably available, the evidence in question appears to be particularly reliable, and the matter at issue is not seriously disputed.
c. The Town Council has the authority to limit testimony that is irrelevant.
d. The entirety of a quasi-judicial hearing and deliberation shall be conducted in open session.
e. Parties to a quasi-judicial hearing have a right to cross-examine witnesses.
f. Factual findings must not be based on hearsay evidence which would be inadmissible in a court of law.
g. If a Town Council member has prior or specialized knowledge about a case, that knowledge should be disclosed to the rest of the Board and parties at the beginning of the hearing.
4.9.7 Town Council review and action.
A. Once the application has been accepted, and required notification have been completed the Town Council shall review the special use application at their next schedule meeting, as long as it is received at least 25 days in advance of the meeting.
B. The Town Council may, in its review, suggest reasonable conditions to the location, nature, and extent of the proposed use and its relationship to surrounding properties, parking areas, driveways, pedestrian and vehicular circulation systems, screening and landscaping, timing of development, and any other conditions the Town Council may find appropriate. The conditions may include dedication of any rights-of-way or easements for streets, water, sewer, or other public utilities necessary to serve the proposed development. Conditions and safeguards imposed under this subsection shall not include requirements for which the town 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 160A-307, or other unauthorized limitations on the development or use of land.
C. In approving an application for a special use permit, the Town Council may attach fair and reasonable conditions to the approval. The applicant will have a reasonable opportunity to consider and respond to any additional requirements prior to approval or denial by the Board, which must be consented to in writing. In no instance shall any of these conditions be less restrictive than any requirements which would pertain to that particular development found elsewhere in a similar zoning district.
D. The applicant has the burden of producing competent, material, and substantial evidence tending to establish the facts and conditions which division E. below require.
E. The Town Council shall issue a special use permit if it has evaluated an application through a quasi-judicial process and determined that:
1. The proposed use will have either a minimal effect or positive effect on the public health or safety;
2. The use meets all required conditions and specifications;
3. The proposed use will have no material adverse effect on the value of adjoining or abutting properties unless the use is a public necessity; and
4. The proposed use is in harmony with the CAMA Land Use Plan/comprehensive plan and/or other plans adopted by the Town Council.
4.9.8 Effect of approval. If an application for a special use permit is approved by the Town Council, the owner of the property shall have the ability to develop the use in accordance with the stipulations contained in the permit, or develop any other use listed as a permitted use for the general zoning district in which it is located.
4.9.9 Binding effect.
A. Any special use permit so authorized shall be binding to the property included in the permit unless subsequently changed or amended by the Town Council. However, minor changes may be made with the approval of the UDO Administrator on a one-time basis only in the detail of the approved application 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;
3. Will not decrease the off-street parking ratio or reduce the yards provided at the periphery of the site by greater than five feet.
B. Further changes to the development may only be made by the original issuing authority in accordance with the process for initial approval.
C. For example, if a special use permit is issued for a building having a gross floor area of 100,000 square feet, under this provision the property owner could, subject to approval of the UDO Administrator, construct a building with a gross floor area of up to 110,000 square feet. If the property owner subsequently had the permit amended authorizing construction of a building of up to 150,000 square feet, the UDO Administrator could allow the construction of a building having a gross area of up to 160,000 square feet.
4.9.10 Certificate of occupancy. No certificate of occupancy for a use listed as a special use shall be issued for any building or land use on a piece of property which has received a special use permit for the particular use unless the building is constructed or used, or the land is developed or used, in conformity with the permit approved by the Board of Adjustment. In the event that only a segment of a proposed development has been approved, the certificate of occupancy shall be issued only for that portion of the development constructed or used as approved.
4.9.11 Twelve-month limitation on re-application. If a request for special use permit is denied by the Town Council, 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 the most recent denial. This waiting period shall not be applicable where the application for a special use permit is substantially different.
4.9.12 Change in special use permit. Any request to materially change the special use permit once it has been issued must first be reviewed and approved in accordance with Article 4.9.2a requiring the same procedure as was used for the initial approval of the permit.
4.9.13 Implementation of special use permit (SUP). Unless the Town Council issues a special use permit, which either is specifically exempt from any time constraints or has some other agreed upon time period for implementation of the site-specific vesting plan, the vesting period has begun upon approval of the site-specific vesting plan and issuance of the permit (Article 4.8).
If the development project is not completed by the expiration of the vested rights or previously approved time frame, the UDO Administrator shall notify the applicant of this finding and, within 60 days of the notification, the Town Council shall make a recommendation concerning the revision of the special use permit. The Board, after having conducted an evidentiary hearing to consider the revision, may then rescind the permit or extend the life of the permit for a specified period of time. Due notice of the public hearing shall be given as prescribed in Article 4.9.6.
(Ord. passed 2-3-2021; Ord. 2023-03, passed 3-1-2023)