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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 5 (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 17 70-2: Applications 18 19 (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 A-425, (09/16) Page 2 of 7 (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 49 70-3: Process 50 51 (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 A-425, (09/16) Page 3 of 7 (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. 99 100 101 102 103 70-4: Public Notice 104 105 (1) Public notice for a petition for a special use permit shall be disseminated per 106 Section 112.1 of the Zoning Ordinance. 107 108 70-5: Public Hearings 109 110 (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 A-425, (09/16) Page 4 of 7 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. 136 137 138 70-6 Review and Decision: 139 140 (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. 173 174 A-425, (09/16) Page 5 of 7 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. 180 181 (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 A-425, (09/16) Page 6 of 7 213 Section 71: Validity, Extensions, and Changes for Approved Special Use Permits; Resubmittals of Denied 214 Applications 215 216 71-1 Validity and Extensions of Approved Special Use Permits: 217 218 (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. 233 234 235 71-2 Changes to Approved Special Use Permits: 236 237 (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. 249 250 71-3 Resubmittals: 251 252 (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 A-425, (09/16) Page 7 of 7 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. 267 268