(A) Purpose and applicability. This chapter provides for several 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 chapter allows some uses in districts subject to the issuance of a special use permit by the Board of Adjustment. In the VR District, all special use permits are assigned to the Planning Board to consider and decide upon. The purpose of having such uses being "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. Those uses shown as special in the Permitted Uses Table in § 154.007-01 shall be subject the requirements and review process of in this section.
(B) Approval process. Special use permits considered by either the Board of Adjustment or the Planning Board shall follow the Board of Adjustment process as described in both § 154.004-02 and in this subchapter, conducting an evidentiary hearing in accordance with all relevant provisions of G.S. § 160D-406. An application shall be filed with the Zoning Administrator and shall be accompanied by a plan meeting the requirements of a major site plan in §§ 154.011. The Zoning Administrator shall submit the site plan to the Technical Review Committee for review. The Technical Review Committee 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 appropriate conditions. Such 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 division shall not include requirements for which the county does not have authority under statute to regulate; nor requirements for which the courts have held to be unenforceable if imposed directly by the county, 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. Following Technical Review Committee review and recommendation, the Board of Adjustment shall hold an evidentiary hearing and consider the application in accordance with the findings-of-fact in division (D) below.
(C) Notice of hearing. Notice of evidentiary hearings conducted pursuant to this section shall be mailed to the person or entity whose application is the subject of the hearing; to the owner of the property that is the subject of the hearing if the owner did not initiate the hearing; and to the owners of all parcels of land abutting the parcel of land that is the subject of the hearing. In the absence of evidence to the contrary, the county may rely on the county tax listing to determine owners of property entitled to mailed notice. The notice must be deposited in the mail at least ten days, but not more than 25 days, prior to the date of the hearing. Within that same time, the county shall also prominently post a notice of the hearing on the site that is the subject of the hearing or on an adjacent street or highway right-of-way. Such notice shall be readable to passersby and able to withstand rain and light wind. The Board of Adjustment may continue an evidentiary hearing that has been convened without further advertisement. If an evidentiary hearing is set for a given date and a quorum of the Board is not then present, the hearing shall be continued until the next regular Board meeting without further advertisement.
(D) Conditions, evidence, and findings-of-fact.
(1) In approving an application for a special use permit, the Board of Adjustment may attach fair and reasonable conditions to the approval. The petitioner will have a reasonable opportunity to consider and respond to any additional requirements prior to approval or denial by the Board of Adjustment. In no instance shall any of these conditions be less restrictive than any requirements which would pertain to that development found elsewhere in a similar zoning district. The applicant shall provide consent in writing to the conditions before the special use permit will be issued. The applicant has the burden of producing competent, material, and substantial evidence to establish the facts and conditions.
(2) The Board of Adjustment shall issue a special use permit if it has evaluated an application and determined that:
(a) The use will not materially endanger the public health or safety if located where proposed and developed according to plan; and
(b) The use meets all required conditions and specifications; and
(c) The use will not substantially injure the value of adjoining or abutting property unless the use is a public necessity; and
(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 and will be in general conformity with the adopted land use plans and other plans for physical development of Surry County as adopted by the Board of Commissioners.
(E) Effect of approval and expiration of approval. If an application for a special use permit is approved by the Board of Adjustment, the owner of the property shall have the ability to develop the use in accordance with the stipulations contained in the special use permit or develop any other use listed as a "permitted use" for the general zoning district in which it is located. Any special use permit so authorized shall be perpetually binding to the property included in such permit unless subsequently changed or amended by the Board of Adjustment. Unless the Board of Adjustment issues a special 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 within a two years period from date of issuance of the special use permit. In addition, if the project for which a special use permit was issued is not complete and a valid building permit is not in place at the end of said two year period, the Zoning Administrator shall notify the applicant of either such finding, and within 60 days of said notification, shall make a recommendation concerning the rescission of the special use permit. The Board of Adjustment, after having conducted a public hearing to consider the rescission, may then rescind the special use permit, or extend the life of the special use permit for a specified period.
(F) Alterations to site and amendments to special use permit. Amendments to special use permits shall follow the process used to consider the special use permit.
(G) Reapplication following denial. If a request for special use permit is denied by the Board of Adjustment, a similar application for the same property or any portion thereof shall be barred by res judicata unless there has been a material change in the facts or circumstances. When used herein, the phrase MATERIAL CHANGE shall mean a change of sufficient materiality that a decision on the new petition would not be barred by application of North Carolina law on res judicata. See, for example, Mount Ulla Historical Pres. Soc., Inc. v. Rowan Cnty., 232 N.C. App. 436, 444 (2014).
(H) Denial and appeal of special use permits.
(1) Denial. If the Planning Board or Board of Adjustment denies the special use permit, it shall enter the reason for its action in the minutes of the meeting at which the action is taken.
(2) Appeal. No appeal may be taken from the action of the Planning Board or Board of Adjustment in granting or denying a special use permit, except through the Surry County Superior Court within 30 days of the decision or forever be barred.
(Ord. passed 4-17-2023)