A-425 8.31.16 Draft Revised after PB Work Session clean version of text
A-425, (09/16) Page 1 of 7
ZONING ORDINANCE AMENDMENT REQUEST
A-425 – Clean Version of Text
Section 70: General Information, Applications, Process, Public Notice, Public Hearings, Review and 1
Decision, and Conclusions Required for Approval 2
3
70-1: General 4
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(1) Special Use Permits add flexibility to the Zoning Ordinance. Subject to high 6
standards of planning and design, certain property uses may be allowed in the 7
several districts where these uses would not otherwise be acceptable. By means 8
of controls exercised through the Special Use Permit procedures, property uses 9
which would otherwise be undesirable in certain districts may be developed to 10
minimize any negative external effects they might have on surrounding 11
properties. 12
(2) Any use or development designated by applicable zoning district regulations as a 13
special use, or as allowed only pursuant to a special use permit, may be 14
established in that district only after the use or development is authorized by a 15
validly issued special use permit. 16
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70-2: Applications 18
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(1) Applications for a Special Use Permit shall be submitted to the Planning and 20
Inspections Director or their designee by the owner or owners, or their duly 21
authorized agent, of the property subject to the Special Use Permit petition at 22
least 35 business days prior to an adopted Planning Board meeting date. A 23
schedule of adopted Planning Board meeting dates and the subsequent 35-24
business-day application deadline shall be available at the Department of 25
Planning and Inspections. 26
(2) Applications for a Special Use Permit shall include the following to be considered 27
a complete application: 28
(A) Completed and signed application form for a Special Use Permit 29
(B) Traffic Impact Worksheet 30
(C) Traffic Impact Analysis (only applicable for development proposals that 31
exceed 100 peak hour trip generation) 32
(D) Site Plan, including the elements listed in Section 60.1 33
(E) Narrative of proposal depicting the nature and scope of the proposed 34
development 35
(F) At the discretion of the petitioner, supplemental information, plans, 36
and/or documents that the petitioner intends to use to demonstrate at 37
the public hearing that the conclusions required for approval in Section 38
70-7 are met 39
(G) Authority for Appointment of Agent Form (only applicable if the petition 40
for Special Use Permit is submitted by an agent for the property owner(s)) 41
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(H) Application fee based on the adopted fee schedule 42
(I) Community information meeting report for community information 43
meeting per Section 111-2.1 (only for uses classified as Intensive 44
Manufacturing) 45
(3) Specific requirements of application requirements may be waived by the 46
respective reviewer, planning director, or planning board, where it is determined 47
that the required information is not applicable to the subject request. 48
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70-3: Process 50
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(1) The Planning and Inspections Director or their designee shall review application 52
packages and respond to the petitioner as soon as possible but at most within 5 53
business days following the application submission to notify the petitioner in 54
writing including regular mail or e-mail of any omissions to the requirements 55
under Section 70-2(2) that render the application incomplete. This review for 56
completeness is to ensure that each of the applicable documents have been 57
submitted as part of the application, and not to verify or substantiate the 58
information provided within the application package. 59
(2) Applications with no omissions to the requirements under Section 70-2(2) shall 60
be deemed complete and be calendared for a public hearing at the earliest 61
upcoming Planning Board meeting that allows time for the required legal notices. 62
The Planning and Inspections Director or their designee shall respond to the 63
petitioner as soon as possible but at most within 5 business days following the 64
application submission in writing including regular mail or e-mail to notify them 65
that the application was deemed complete and confirm the date of the Planning 66
Board meeting at which the public hearing will be held. 67
(3) Within 10 business days following an application deadline, complete applications 68
for special use permit petitions shall be posted on the Planning and Inspections 69
Department web page (www.planningdevelopment.nhcgov.com) in addition to 70
the date, time, and location of the Planning Board meeting at which the public 71
hearing will be calendared. Notification of the posting of the special use permit 72
application(s) and meeting information shall also be sent to the Sunshine List. 73
Any additional information received from the petitioner after the application 74
deadline shall also be posted on the web page. 75
(4) In preparation for the public hearing at the Planning Board for a petition for a 76
special use permit, the Planning and Inspections Director or their designee shall 77
analyze the information and materials provided in the application package to 78
provide a summary of the request and preliminary findings of fact in the form of 79
a report to be included in the agenda package for the Planning Board meeting. 80
The intent of the report is to inform the Planning Board of whether the 81
Conclusions Required for Approval in Section 71-4 have been met or to identify, 82
from staff’s perspective, issues or areas that the Planning Board may need more 83
information on in order to provide a recommendation to the Board of County 84
Commissioners whether each of the required conclusions in Section 70-7 have 85
been met. The staff analysis report shall be published by the Clerk to the Planning 86
Board as part of the agenda package for the Planning Board meeting. 87
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(5) In preparation for the public hearing at the Board of County Commissioners for a 88
petition for a special use permit, the Planning and Inspections Director or their 89
designee shall prepare a report summarizing the Special Use Permit request, the 90
information and materials provided in the application package and presented at 91
the Planning Board public hearing(s), the Planning Board’s recommendations, and 92
preliminary findings of fact. The intent of the report is to inform the Board of 93
County Commissioners of whether the Conclusions Required for Approval in 94
Section 71-4 have been met or to identify, from staff’s perspective, issues or areas 95
that the Board of County Commissioners may need more information on in order 96
to reach a required conclusion. The staff analysis report shall be published by the 97
Clerk to the Board of County Commissioners as part of the agenda package for 98
the County Commissioners meeting. 99
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70-4: Public Notice 104
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(1) Public notice for a petition for a special use permit shall be disseminated per 106
Section 112.1 of the Zoning Ordinance. 107
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70-5: Public Hearings 109
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(1) A public hearing at the Planning Board for the special use permit application shall 111
be calendared per Section 70-3(3). 112
(2) The public hearing for the special use permit application at the Planning Board 113
shall held in a quasi-judicial format. At the hearing, the Planning Board hears 114
factual evidence presented at an evidentiary hearing, then makes 115
recommendations for findings of fact supported by competent, substantial, and 116
material evidence. Based on those recommended findings, the Planning Board 117
may render a recommendation to the County Commissioners on whether each of 118
the required conclusions specified in Section 70-7 can be reached. 119
(3) The Planning Board may continue the hearing to a later meeting to accommodate 120
the presentation of additional testimony or evidence. If the time and place of the 121
continued hearing is announced in open session during the hearing, no further 122
notice need be given for the continued hearing. 123
(4) A public hearing at the Board of County Commissioners shall be calendared 124
following the public hearing at which the Planning Board makes a 125
recommendation. 126
(5) The public hearing for the special use permit application at the Board of County 127
Commissioners shall held in a quasi-judicial format. At the hearing, the Board 128
hears factual evidence presented at an evidentiary hearing, then makes findings 129
of fact supported by competent, substantial, and material evidence. Based on 130
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those findings, the Board of County Commissioners decides whether or not it can 131
reach each of the required conclusions specified in Section 70-7 below. 132
(6) The Board of County Commissioners may continue the hearing to a later meeting 133
to accommodate the presentation of additional testimony or evidence. If the time 134
and place of the continued hearing is announced in open session during the 135
hearing, no further notice need be given for the continued hearing. 136
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70-6 Review and Decision: 139
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(1) The applicant bears the burden of presenting sufficient evidence in support of the 141
application to allow the Board of County Commissioners, after weighing such 142
evidence against that presented in opposition to the application, to make findings 143
of fact that reasonably support each of the required conclusions outlined in 144
Section 70-7 as well as any applicable specific standards for the proposed use as 145
required by Section 72. If that burden is met, the Board of County Commissioners 146
must approve the application. If that burden is not met, the Board of County 147
Commissioners must deny the application, provided that if the Board of County 148
Commissioners determines that specific minor changes or additions to, or 149
restrictions on, the proposed development are necessary and sufficient to 150
overcome impediments to its reaching the required conclusions, it may approve 151
the application subject to reasonable conditions requiring such changes or 152
additions or imposing such restrictions. Such conditions may include time limits 153
for completion of development or for the start or end of certain uses or activities. 154
(2) A motion to approve the application must state the required conclusions and 155
include findings of fact on which the conclusions are based, plus any proposed 156
conditions of approval. The favorable vote of at least 3 members of the Board of 157
County Commissioners is necessary to pass such a motion. A motion to deny the 158
application must state which of the required conclusions cannot be reached and 159
include findings of fact on which the inability to reach the conclusions is based. 160
The favorable vote of a majority of Board of County Commissioners members 161
present is necessary to pass such a motion. If a motion to approve the application 162
fails, the application is deemed denied, and those members voting against the 163
motion must state which of the required conclusions they could not reach as well 164
as findings of fact on which their inability to reach the conclusions is based. 165
(3) Every decision by the Board of Commissioners issuing or denying a special use 166
permit shall be subject to review by the Superior Court by proceedings in the 167
nature of certiorari. Any petition for review by the Superior Court shall be filed 168
with the Clerk of Superior Court within 30 days after the decision of the Board is 169
filed in the Office of the Clerk to the Board, or after a written copy thereof is 170
delivered to every aggrieved party who has filed a written request for such copy 171
with the Clerk or Chairman of the Board at the time of the hearing of the case, 172
whichever is later. 173
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70-7: Conclusions Required for Approval – The Board of County Commissioners may not 175
approve an application for a special use permit unless it reaches each of the following conclusions 176
based on findings of fact supported by competent, substantial, and material evidence presented 177
at the hearing. The considerations listed below each required conclusion are intended to suggest 178
some of the primary concerns pertinent to reaching the conclusions, but are not intended to be 179
all-inclusive. 180
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(1) The use will not materially endanger the public health or safety if located where 182
proposed and approved. Considerations: 183
(A) Traffic conditions in the vicinity, including the effect of additional traffic 184
on streets and street intersections, and sight lines at street intersections 185
with curb cuts; 186
(B) Provision of services and utilities, including sewer, water, electrical, 187
garbage collections, fire protection; 188
(C) Soil erosion and sedimentation; and 189
(D) Protection of public, community, or private water supplies, including 190
possible adverse effects on surface waters or groundwater; and 191
(E) Anticipated air discharges, including possible adverse effects on air 192
quality 193
(2) The use meets all required conditions and specifications of the Zoning Ordinance; 194
(3) The use will not substantially injure the value of adjoining or abutting property, 195
or that the use is a public necessity. Considerations: 196
(A) The relationship of the proposed use and the character of development 197
to surrounding uses and development, including possible conflicts 198
between them and how these conflicts will be resolved; and 199
(B) Whether the proposed development is so necessary to the public health, 200
safety, and general welfare of the community or County as a whole as to 201
justify it regardless of its impact on the value of adjoining property. 202
(4) The location and character of the use if developed according to the plan as 203
submitted and approved will be in harmony with the area in which it is to be 204
located and in general conformity with the plan of development for New Hanover 205
County. 206
(A) The relationship of the proposed use and the character of development 207
to surrounding uses and development, including possible conflicts 208
between them and how these conflicts will be resolved; and 209
(B) Consistency with the Plan’s goals, objectives for the various planning 210
areas, its definitions of the various land use classifications and activity 211
centers, and its locational standards. 212
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Section 71: Validity, Extensions, and Changes for Approved Special Use Permits; Resubmittals of Denied 214
Applications 215
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71-1 Validity and Extensions of Approved Special Use Permits: 217
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(1) A special use permit, issued by the Board of County Commissioners, shall become 219
null and void if construction or occupancy of the proposed use as specified on the 220
special use permit is not commenced within twenty-four (24) months of the date 221
of issuance. If an extension is desired, a request must be submitted in writing to 222
the New Hanover County Planning and Inspections Department prior to the 223
expiration. Extensions may be granted in accordance with Section 112-6 of the 224
Ordinance. 225
(2) In the event of failure to comply with the plans approved by the Board of County 226
Commissioners or with any other conditions imposed upon the special use 227
permit, the permit shall thereupon immediately become void and of no effect. 228
No building permits for further construction or certificates of occupancy under 229
this special use permit shall be issued, and all completed structures shall be 230
regarded as non-conforming uses subject to the provisions of Article IV of this 231
Ordinance provided, however, that the Board of County Commissioners shall not 232
be prevented from thereafter rezoning said property for its most appropriate use. 233
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71-2 Changes to Approved Special Use Permits: 236
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(1) The original applicant(s), their successors or their assignee may make minor 238
changes in the location and/or size of structures provided the necessity for these 239
changes is clearly demonstrated. Minor changes shall be reviewed by the 240
Planning and Inspections Department and upon favorable recommendation by 241
the Planning and Inspections Director may be approved by the Zoning 242
Administrator. Such approval shall not be granted should the proposed revisions 243
cause or contribute to: 244
(A) A change in the character of the development. 245
(B) A change of design for, or an increase in the hazards to pedestrian and 246
vehicle traffic circulation, or 247
(C) A modification in the originally approved setbacks from roads and/or 248
property lines exceeding ten percent. 249
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71-3 Resubmittals: 251
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(1) An application for a special use which has been previously denied may be 253
resubmitted only if there has been a change in circumstances as determined by 254
the Planning and Inspections Director or the director's designee. Evidence 255
presented in support of the new application shall initially be limited to what is 256
necessary to enable the Planning and Inspections Director to determine whether 257
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there has been a substantial change in the facts, evidence, or conditions of the 258
case and shall include: 259
(A) Circumstances affecting the property that is the subject of the application 260
which have substantially changed since the denial; or 261
(B) New information available since the denial that could not with 262
reasonable diligence have been presented at a previous hearing. 263
If the Planning and Inspections Director deems the evidence substantially 264
changed, the proposal may be resubmitted as a new application. Appeal of the 265
Planning and Inspections Director’s decision may be made to the Board of County 266
Commissioners. 267
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