§ 94.58 SPECIAL USES.
   (A)   Encouraging and guiding high standards of site design allows certain property uses to be permitted in certain designated districts where these uses would not otherwise be acceptable. Requiring certain controls on site improvements through the special use permit procedure will allow what is otherwise considered to be undesirable to be developed so as to minimize any objectionable or bad effects it might have on surrounding properties or neighborhood.
   (B)   Special use permits granted by the Village Council.
      (1)   Special use permits may be granted by the Village Council for the uses designated as special uses in any zoning district.
      (2)   The owner or owners of all property included in the petition for the special use permit shall submit an application and pay the filing fee established by resolution of the Village Council to the Zoning Enforcement Officer at least 30 days prior to the next meeting date of the Village Council. The application shall include all requirements pertaining to it as provided in the applicable zoning district and on the current special use permit application form. The Village Council shall then conduct an evidentiary hearing following the procedures in § 94.58(C) below.
   (C)   Evidentiary hearing.
      (1)   Notice of hearing. Notice of evidentiary hearings shall be mailed to the person or entity whose appeal, application, or request 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; to the owners of all parcels of land abutting the parcel of land that is the subject of the hearing; and to any other persons entitled to receive notice as provided by the development regulation. In the absence of evidence to the contrary, the village 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 period, the village 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. The Board 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.
      (2)   Administrative materials. The Administrator or staff to the Board shall transmit to the Board all applications, reports, and written materials relevant to the matter being considered. The administrative materials may be distributed to the members of the Board prior to the hearing if at the same time they are distributed to the Board a copy is also provided to the appellant or applicant and to the landowner if that person is not the appellant or applicant. The administrative materials shall become a part of the hearing record. The administrative materials may be provided in written or electronic form. Objections to inclusion or exclusion of administrative materials may be made before or during the hearing. Rulings on unresolved objections shall be made by the Board at the hearing.
      (3)   Presentation of evidence. The applicant, the village, and any person who would have standing to appeal the decision under G.S. § 160D-1402(c) shall have the right to participate as a party at the evidentiary hearing. Other witnesses may present competent, material, and substantial evidence that is not repetitive as allowed by the Board. Objections regarding jurisdictional and evidentiary issues, including, but not limited to, the timeliness of an appeal or the standing of a party, may be made to the Board. The Board Chair shall rule on any objections, and the Chair’s rulings may be appealed to the full Board. These rulings are also subject to judicial review pursuant to G.S. § 160D-1402. Objections based on jurisdictional issues may be raised for the first time on judicial review.
      (4)   Appearance of official new issues. The official who made the decision or the person currently occupying that position, if the decision maker is no longer employed by the village, shall be present at the evidentiary hearing as a witness. The appellant shall not be limited at the hearing to matters stated in a notice of appeal. If any party or the village would be unduly prejudiced by the presentation of matters not presented in the notice of appeal, the Board shall continue the hearing.
      (5)   Oaths. The Chair of the Board or any member acting as Chair and the Clerk to the Board are authorized to administer oaths to witnesses in any matter coming before the Board. Any person who, while under oath during a proceeding before the Board determining a quasi-judicial matter, willfully swears falsely is guilty of a Class 1 misdemeanor.
      (6)   Subpoenas. The Board making a quasi-judicial decision under this chapter through the Chair or, in the Chair's absence, anyone acting as Chair may subpoena witnesses and compel the production of evidence. To request issuance of a subpoena, the applicant, the village, and any person with standing under G.S. § 160D-1402(c) may make a written request to the Chair explaining why it is necessary for certain witnesses or evidence to be compelled. The Chair shall issue requested subpoenas he or she determines to be relevant, reasonable in nature and scope, and not oppressive. The Chair shall rule on any motion to quash or modify a subpoena. Decisions regarding subpoenas made by the Chair may be immediately appealed to the full Board. If a person fails or refuses to obey a subpoena issued pursuant to this division (C)(6), the Board or the party seeking the subpoena may apply to the General Court of Justice for an order requiring that its subpoena be obeyed, and the Court shall have jurisdiction to issue these orders after notice to all proper parties.
      (7)   Appeals in nature of certiorari. When hearing an appeal pursuant to G.S. § 160D-947(e) or any other appeal in the nature of certiorari, the hearing shall be based on the record below, and the scope of review shall be as provided in G.S. § 160D-1402(j).
      (8)   Voting. The concurring vote of four-fifths of the Board shall be necessary to grant a variance. A majority of the members shall be required to decide any other quasi-judicial matter or to determine an appeal made in the nature of certiorari. For the purposes of this division (C)(8), vacant positions on the Board and members who are disqualified from voting on a quasi-judicial matter under G.S. § 160D-109(d) shall not be considered members of the Board for calculation of the requisite majority if there are no qualified alternates available to take the place of such members.
      (9)   Decisions. The Board shall determine contested facts and make its decision within a reasonable time. When hearing an appeal, the Board may reverse or affirm, wholly or partly, or may modify the decision appealed from and shall make any order, requirement, decision, or determination that ought to be made. The Board shall have all the powers of the official who made the decision. Every quasi-judicial decision shall be based upon competent, material, and substantial evidence in the record. Each quasi-judicial decision shall be reduced to writing, reflect the Board’s determination of contested facts and their application to the applicable standards, and be approved by the Board and signed by the Chair or other duly authorized member of the Board.
      (10)   In order to grant a special use permit, the Village Council shall find:
         (a)   That the use will not endanger the public health, safety or welfare if located where proposed and developed according to the plan as submitted.
         (b)   That the use meets all required conditions and specifications requested.
         (c)   That the use will not have a significant adverse impact on the value of adjoining or abutting property.
         (d)   The location and character of the use, if developed according to the plan submitted, will be in harmony with the character of the neighborhood and the Village of Walnut Creek.
      (11)   In granting a special use permit,the Village Council may designate reasonable and appropriate conditions in addition and in connection therewith, as will, in its opinion, assure that the use and its proposed location will be harmonious with the area. All such additional conditions shall be consented to in writing by the applicant, entered in the minutes of the meeting at which the special use permit is granted and also on the building permit and on the approved plans submitted therewith. All special conditions shall run with the land and shall be binding on the original applicants for the special use permit, their heirs, successors, and assigns unless otherwise specified in this chapter. In a case where an application for a special use permit has been denied, no reapplication for the same special use permit for the same property or any part thereof shall be filed unless the Village Council shall find that there have been substantial changes in the application or the conditions or circumstances bearing on the application.
      (12)   If the Village Council denies the permit, it shall enter a report of its action in the minutes of the meeting at which the action is taken.
      (13)   A quasi-judicial decision is effective upon filing the written decision with the Clerk to the Board or such other office or official as the development regulation specifies. The decision of the Board shall be delivered within a reasonable time by personal delivery, electronic mail, or first-class mail to the applicant, landowner, and any person who has submitted a written request for a copy prior to the date the decision becomes effective. The person required to provide notice shall certify to the village that proper notice has been made, and the certificate shall be deemed conclusive in the absence of fraud.
      (14)   Judicial review. Every quasi-judicial decision shall be subject to review by the superior court by proceedings in the nature of certiorari pursuant to G.S. § 160D-1402. Appeals shall be filed within the times specified in G.S. § 160D-1405(d).
      (15)   In the event of failure to comply with the plans approved by the Village Council, or with any other conditions imposed upon the special use permit, the permit shall thereupon become void and of no effect. No permits of any kind for further construction or certificates of occupancy under this special use permit shall be issued.
      (16)   Where plans are submitted and approved as part of the application for a special use permit, modifications of the original plans may be authorized by the Village Council after review and recommendation by the Planning Board.
(Ord., passed 3-24-04; Am. Ord., passed 6-23-21)