8.1   Special use permit approval process.
   8.1.1 Purpose. Special use permits add flexibility to the zoning ordinance. Subject to high standards of planning and design, certain property uses may be allowed in several districts where these uses would not otherwise be acceptable. By means of controls exercised through the special use permit procedures, property uses which would otherwise be undesirable in certain districts can be developed to minimize any adverse effects they might have on surrounding properties.
   8.1.2 General. Special use permits may be issued by the town council for those uses of land and buildings requiring a special use permit as listed in each zoning district classification. Special use permits may be granted by the town council after planning board review and recommendations, and after an evidentiary hearing. Statutory quasi-judicial procedures in accordance with G.S. 160D-406 shall be followed for the issuance or denial of any proposed special use permit.
   8.1.3 Application. The owner or owners, or their duly authorized agent, of the property included in the application for a special use permit shall submit a complete application and supplemental information to the community development department at least twenty (20) working days prior to the regular meeting of the planning board at which the application is to be considered. A fee in accordance with the town's adopted fee schedule shall be submitted to the Town of Surf City with each application. Such application shall include all of the requirements pertaining to it in this chapter including the provisions of section 12.3(2). The planning board shall consider and make recommendations to the town council concerning such special use permit application. The planning board shall review all applications at a regularly scheduled public meeting held and advertised in accordance with its rules of procedure then in effect. In lieu of separate consideration, the planning board may review an application in a joint meeting with the town council, prior to the opening of the an evidentiary hearing held in conformity with the requirements of section 8.1.6 herein. Any such recommendation shall not be the basis for the decision by the town council. The final decision by the town council shall be based on evidence presented at the evidentiary hearing.
   8.1.4 Additional conditions.
   1)   The planning board may recommend, and the town council in granting the permit may designate, such conditions in addition and in connection therewith as well as in its opinion assure that the use in its proposed location will be harmonious with the spirit of this chapter. All such additional conditions shall be entered in the minutes of the meeting at which the permit is granted and also on the certificate of the special use permit or on the plans submitted therewith. All specific conditions shall run with the land and shall be binding on the original applicants for the special use permit, their heirs, successors and assigns. 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 town, 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. All conditions shall be consented to in writing by the applicant and/or landowner to ensure enforceability.
   2)   In addition to the specific conditions imposed by the regulations of this chapter and whatever additional conditions the council deems reasonable and appropriate, all special uses, shall comply with the height, yard area and parking regulations for the district in which they are to be located. If additional yard area is required for a special use, such additional area may be used for off-street parking.
   8.1.5 Action by planning board. The planning board shall forward its recommendations to the town council within thirty (30) days after the meeting of the planning board's final action. Failure to submit a recommendation within this period shall be deemed a favorable recommendation.
   8.1.6 Action by town council.
   1)   Notice of evidentiary hearing. No special use permit shall be issued by the town council until public notice is given of an evidentiary hearing to be held. Notice of the evidentiary hearing shall be published in accordance with G.S. 160D-406(b). Public notice may also be posted on the property in question, indicating the date of the hearing.
   2)   Evidentiary hearing. The applicant shall present his request in the following manner:
      a)   All persons shall be sworn or affirmed before presenting evidence to the town council.
      b)   All persons shall offer only competent material and substantial evidence in any presentation to the council. Competency shall be determined by the council in its decision.
      c)   All persons participating in the hearing or their representatives shall have an opportunity to cross-examine adverse witnesses and to inspect any evidence presented.
      d)   The applicant shall be allowed the opportunity to offer competent evidence in explanation or rebuttal to objecting participants.
      e)   Following the presentation of all evidence both for and against the application for special use permit, the hearing may be continued until the next regularly scheduled meeting of the town council or as soon thereafter as possible, at which time the council will render its decision on the application and will state its reasons, orally or in writing, for approving or disapproving the application.
      f)   The town council, in granting the permit, must find that all four (4) of the following factors exist:
         1.   That the use will not materially endanger the public health or safety if located where proposed and developed according to the plan as submitted and approved by the issuance of the special use permit;
         2.   That the use meets all required conditions and specifications;
         3.   That the use will not substantially injure the value of adjoining or abutting property, or that the use is a public necessity; and
         4.   That 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 in general conformity with the land use plan and its policies for growth and development as applicable the Town of Surf City.
      g)   A finding of the town council that the four (4) required conditions exist, or a finding that one (1) or more of the four (4) required conditions do not exist shall be based on sufficient and competent evidence presented to the town council at the hearing at which the special use permit is required.
   3)   Issuance, denial of permit. When issuing or denying special use permits, the town council shall follow the procedures for board of adjustment except that no vote greater than a majority vote shall be required for the town council to issue such permits, and every such decision of the town council shall be subject to review by the superior court by proceedings in the nature of a certiorari.
   8.9.7 Denial. If the planning board recommends denial of the special use permit request, and/or if the town council denies the permit, each body shall enter the reasons for its action in the minutes of the meeting at which the action is taken.
   8.9.8 Appeal. No appeal may be taken to the board of adjustment from the town council in granting or denying a special use permit. Any appeal from an action by the town council on special uses shall be pursued in accordance with section 14.6 of this ordinance.
   8.9.9 Permit voidance.
   1)   The town planner shall ensure compliance with the plans approved by the town council or with any other conditions imposed upon the special use permit. In the event of failure to comply, no building permits for further construction or certificate 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. The special use permit shall be revoked for any substantial departure from the approved application, plans, or specifications. The town shall follow the same development review and approval process required for issuance of the special use permit, including any required notice or hearing, in the review and approval of any revocation of that approval.
   2)   A special use permit, issued by the town council, shall become null and void if construction or occupancy of the proposed use as specified on the special use permit has not commenced within twelve (12) months of the date of issuance. An extension of time for a special use permit, not to exceed a period of six (6) months, may be granted by the town council in accordance with the quasi-judicial process followed for initial approval, provided application for such extension is submitted in writing at least forty-five (45) days prior to the original expiration date.
   8.1.10 Modifications to approved plan.
   1)   Major changes to approved plans and conditions of development may be authorized only by the town council after review and recommendation by the planning board in the same manner as outlined in this section for original submission. Major changes include, but are not limited to:
      a)   Change in use;
      b)   Increase in intensity of the development; such as, increase in density of units, whether residential, office, commercial or industrial; an increase in number of off-street parking or loading spaces; or, an increase in impervious surface area;
      c)   An increase in overall ground coverage by structures;
      d)   A change in any site dimension by more than ten (10) percent;
      e)   A reduction in approved open space or screening;
      f)   A reduction in size of city utilities;
      g)   A change in the soil erosion and sedimentation controls as approved by the town planner;
      h)   A change in access and internal circulation design.
   2)   Minor changes, which are not deemed as major change by the town planner, may be authorized by the town planner if required by engineering or other physical circumstances not foreseen at the time of approval (other government agencies).
(Ord. No. 2020-10, 12-1-20)