Loading...
S24-01 BOC Mailed Notice NOTICE OF QUASI -JUDICIAL HEARING NEW HANOVER COUNTY BOARD OF COMMISSIONERS June 3 , 20 2 4 Special Use Permit Request (S24-01) – Request by Samuel Potter with Equitas Law Partners, LLC, applicant, on behalf of Hoosier Daddy, LLC, property owner, for an Additional Dwelling Allowance to increase the allowed density up to 10.2 dwelling units per acre for 24 parcels totaling approximately 16.78 acres of land currently zoned R-15, Residential located at 535, 539, 543, and 547 Manassas Drive and unaddressed parcels on the 5900 block of Shiloh Drive. This request will be considered by the New Hanover County Board of Commissioners at a quasi-judicial hearing on Monday, June 3, 2024 beginning at 4:00 p.m. or thereafter at the New Hanover County Historic Courthouse, located at 24 North Third Street, Room 301 (corner of Third and Princess Street) in Wilmington, NC. Since this notice is sent only to property owners within 500 feet of the parcel boundary of the proposed project, please discuss it with other residents who may be interested. This type of request has different procedures and rules than other public hearings regarding who is able to participate and the type of information that can be presented for consideration. Therefore, anyone wishing to provide evidence regarding this item should attend the public hearing. A public comment portal is not provided in advance of the hearing. At a Quasi-Judicial hearing, the Board of Commissioners must determine whether sufficient evidence has been submitted to find that the proposal meets four required conclusions: • That the use will not materially endanger the public health or safety if located where proposed, • That the use meets all required conditions and specifications, • That the use will not substantially injure the value of adjoining or abutting properties, or that the use is a public necessity, and • 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 Comprehensive Land Use Plan for New Hanover County Typically, a total of fifteen (15) minutes will be allocated for all of those providing evidence in support of the request, and another fifteen (15) minutes for those providing evidence in opposition to the request. Following this thirty (30) period, an additional five minutes for each side may be allowed for rebuttal statements. After hearing the evidence provided during the process described above, the Board of Commissioners will vote on the request. For additional information on this application and other development proposals in the unincorporated county, please visit our Development Activity Page at: www.plannhc.com. If you have any questions, please contact Robert Farrell in the New Hanover County Department of Planning & Land Use at (910) 798-7164 or rfarrell@nhcgov.com. Page 1 of 5 Information about Special Use Permit Preliminary Forums & Public Hearings You may be an interested party involving a special use permit application. New Hanover County’s procedure for consideration of special use permits is a two-part public process. First, the New Hanover County Planning Board will hold a preliminary forum regarding the application. Next, the New Hanover County Board of Commissioners will hold a quasi-judicial public hearing. The purpose of this letter is to inform you of the procedures followed by the Planning Board and Board of Commissioners in their reviews of the application. You can review the application documents on the Planning and Land Use Department’s Development Activity webpage at https://planning.nhcgov.com/development-activity/. If you have any questions, please contact the case planner for this item. I. General Information Special use permits add flexibility to the County’s Unified Development Ordinance. Subject to high standards of planning and design, certain property uses may be allowed in zoning districts where these uses would not otherwise be acceptable. These uses, called special uses, are reviewed on a case-by-case basis to determine if they are suitable for a particular property if specified conditions are met. II. Planning Board Preliminary Forum The first step in the public process for special use permit applications is a preliminary forum held by the Planning Board, which allows comments and questions from the general public regarding special use permit applications. A. Public Comment Regarding the Application Any person wishing to speak in support or in opposition to an application may appear at the forum and sign in on the sign-up sheet in the lobby for their opportunity to address the Board. Each person who speaks at a preliminary forum should be prepar ed to identify themselves, state their home or business address, and if appearing on behalf of a person or organization, state the name and mailing address of the person or organization they represent. Speakers should avoid asking questions or stating comments that are irrelevant, immaterial, or unduly repetitious. B. Preliminary Forum Procedures The procedural organization of the preliminary forum can be summarized by the following steps: 1. The Chairperson provides an overview of the preliminary forum process. Page 2 of 5 2. The case planner introduces the application and provides a brief summary of the request. 3. The applicant will present the case to the Board. The presentation is limited to a total of 15 minutes for all speakers in favor of the proposal. 4. The Planning Board will allow up to 20 minutes total for comments and questions on the proposal from supporters and opponents, after which the applicant will have an opportunity to respond to questions and address comments. 5. The Planning Board will provide comments and ask questions of the applicant. 6. Once the applicant has responded to all comments and questions from the Board and public, the case planner will give an overview of next steps in the special use permit process. 7. The Chairperson closes the preliminary forum. C. No Planning Board Decision or Recommendation on the Application Pursuant to North Carolina State Law , the Planning Board does not decide or make a recommendation at the Preliminary Forum. III. Board of Commissioners Quasi-judicial Public Hearing The second and final step in the public process for special use permit applications is the Board of Commissioners’ quasi-judicial public hearing, which simply put means it is formatted similar to a court case in that all parties are guaranteed rights of due process and are entitled to a fair hearing with unbiased decision makers. As such, North Carolina state law mandates that quasi-judicial decisions must be based on substantial, competent, and material evidence presented by experts and witnesses under oath at the hearing. A. Required Findings The Unified Development Ordinance establishes four criteria, or conclusions, that must be met by each special use permit. All conclusions must be supported by substantial evidence. It is the applicant’s responsibility to develop and present this evidence to the Board, as well as the applicant’s burden to convince the Board that the conclusions are met. To grant approval of the application, the County Commissioners must determine that it meets the following conclusions: 1. The use will not materially endanger the public health or safety if located where proposed and approved; 2. The use meets all required conditions and specifications of the Unified Development Ordinance; 3. The use will not substantially injure the value of adjoining or abutting property, or that the use is a public necessity; and 4. The location and character of the use if developed according to the plan as submitted and approved will be harmony with area in which it is to be located and Page 3 of 5 in general conformity with the Comprehensive Land Use Plan for New Hanover County. If the applicant fails to demonstrate that even one of the four conclusions can be met, the special use permit application shall be denied. B. Pre-Hearing Procedures & Submission of Evidence To ensure that decision makers remain unbiased, interested parties are prohibited to communicate with County Commissioners prior to the official public hearing. Anyone wishing to submit documentation for the Board’s review prior to the hearing should consult solely with the Planning & Land Use Department. When received no later than three weeks prior to the hearing date, the case planner will include the documentation in the agenda packet. Items received within three weeks of the hearing date will either be copied and forwarded to the applicant, persons who have requested the information, all interested parties, and the Board of Commissioners or will be provided to the Board of Commissioners at the hearing and will be placed into the official case file; however, you should be aware that the Board may not have adequate time to review and consider last minute submissions during the hearing. Objections to inclusion or exclusion of evidence may be made before or during the hearing, and rulings on unresolved objections shall be made by the Board at the hearing. C. Testimony & Standing Unlike during the Planning Board’s Preliminary Forum, the Board of Commissioners may not rely upon unsworn testimony with respect to crucial findings of fact at the quasi-judicial hearing. Crucial findings of fact must be based on competent evidence presented under oath, and not on hearsay evidence alone. As such, North Carolina law limits public involvement in quasi-judicial hearings to two levels of participation: (1) parties with legal standing in the case and (2) individuals providing competent, relevant, and substantial evidence on the matter. Parties with legal standing in a case are those that would suffer special damages from the outcome of the matter, including but not limited to economic damages such as a decrease in property value. A party with standing may cross-examine witnesses, object to evidence, offer rebuttal, or appeal or intervene in an appeal of the Board’s decision. The Board may, but is not required to, allow persons without legal standing to participate in the hearing as a witness. If so, only testimony which is competent, relevant, and material is allowed to be considered. While the County cannot advise interested parties as to how best to present their cases for or against an application, the testimony of an expert will be needed if a case involves certain complex technical or scientific issues. Examples of such issues, and the experts which frequently provide testimony, are as follows: property valuation – appraiser; traffic – traffic engineer or transportation planner; drainage – professional engineer, landscape architect or surveyor; water quality – environmental scientist or hydrologist. This list is not intended to be exhaustive, but to give examples of when expert testimony is typical. Expert testimony is not required in every case. For instance, statistical information may Page 4 of 5 suffice in connection with arguments regarding crime, accidents, growth or general market conditions. Lay persons may also credibly testify to evidence they have personally witnessed. However, in order for the more technical and scientific issues above to be addressed in a way that would withstand a court challenge, expert testimony is often necessary. Any witness may be cross-examined by the Board, applicant, or another party with standing in the case. As mentioned below in Section D: Public Hearing Procedures, both the applicant and any objectors are entitled to a rebuttal period to respond to questions regarding any testimony given. If you have any questions regarding this item, please contact the case planner. D. Public Hearing Procedures The procedural organization of the public hearing can be summarized by the following steps: 1. The applicant (and members of the applicant’s team), Staff, interested parties, and all witnesses are sworn in; the Clerk records the name of each witness immediately prior to swearing in the group; 2. Applicant’s witnesses testify. The presentation is limited to a total of 15 minutes for all speakers in favor of the proposal. Each witness is subject to cross examination by the Board at the conclusion of his or her testimony; 3. At the conclusion of the applicant’s case, objectors testify and present their case, subject to the same 15-minute total time limit for all speakers. Again, each witness is subject to cross examination; 4. The Chairperson then allows time (usually 5 minutes total for each side) for any rebuttals; 5. Exhibits and documents are accepted into evidence, with the Chairperson ruling on any objections to evidence; 6. At the conclusion of all testimony and rebuttals, the Chairperson closes the public hearing and Board members proceed to discuss the case and establish findings of fact for each of the four conclusions; and, 7. Based on these findings, a Board member should offer a motion to grant or deny the special use permit. A majority vote is required for approval. IV. Technical Review Committee and/or Zoning Compliance Reviews If the Board of Commissioners approve a special use permit application, the applicant would then be required to obtain Technical Review Committee and Zoning Compliance approvals prior to establishing the approved use. Through these reviews, the applicant wou ld be required to demonstrate compliance with all existing County ordinance requirements, which include but are not limited to, stormwater detention, erosion and sedimentation control, tree retention, landscaping and buffering, lighting, signage, and other zoning and subdivision standards. The Page 5 of 5 application must also be approved by outside agencies, including the Cape Fear Public Utility Authority, North Carolina Department of Transportation, and other applicable state and federal agencies. If you have any questions regarding this item, please contact the case planner listed on the letter titled Notice of Planning Public and Quasi-Judicial Hearings included in this mailing.