§ 4.5. Special use permits.
Purpose statement: It is the intent of this article to recognize and permit certain uses and developments that require special review, and to provide standards by which applications for permits for such uses and developments shall be evaluated.
It is the intent of this appendix that all special use permits shall demonstrate a high quality of overall site and building design. The criteria and procedures established in this section ensure that the design and construction of site elements include appropriate consideration of the relationship and balance among site elements, the relationship of the development to natural features, neighboring developments, and access and circulation systems, retention of natural vegetation, minimal alteration of natural topography, mitigation of erosion and sedimentation, mitigation of stormwater drainage and flooding, arrangement and orientation of buildings and amenities in relation to each other and to neighboring developments and streets, landscaping, preservation or enhancement of vistas, and mitigation of traffic impacts.
It is further intended that special use permits be required for the following types of developments:
a)
Special uses that, because of their inherent nature, extent, and external effects, require special care in the control of their location, design, and methods of operation in order to ensure protection of the public health, safety, and welfare; and
b)
Planned developments that require special review in order to provide the regulatory flexibility and performance criteria necessary to permit a creative approach to the development of land that will (i) accomplish a more desirable environment than would be possible through the strict application of the generally applicable requirements of this chapter; (ii) provide for an efficient use of land and arrangement of land uses, buildings, circulation systems, and utilities; (iii) promote an improved level of amenities; and (iv) provide an environment of stable character compatible with surrounding areas; and
c)
All uses established in conditional use districts.
4.5.1 Applicability.
(a)
Special uses may be established in accord with the procedures and general requirements set forth in subsections 4.5.2 and 4.5.3, below.
(b)
A special use permit may be requested for any development authorized by this appendix. Once a special use permit is approved for a property, that use may be established on that property only after issuance and recordation of a special use permit.
(c)
Those uses listed in the use matrix (section 3.7) as permitted special uses in a zoning district may be established in that district only after issuance and recordation of a special use permit.
(d)
Those planned developments described in section 6.18 may be established in any zoning district and only after issuance and recordation of a special use permit.
(e)
Any uses in conditional use districts, as described in section 3.4 shall be established only after issuance and recordation of a special use permit.
4.5.2 Standards and Findings of Fact.
(a)
No special use permit shall be recommended by the town manager or planning commission for approval and no special use permit shall be approved by the town council unless each of the following findings is made concerning the proposed special use or planned development:
(1)
That the use or development is located, designed, and proposed to be operated so as to maintain or promote the public health, safety, and general welfare;
(2)
That the use or development complies with all required regulations and standards of this chapter, including all applicable provisions of articles 3 and 5, the applicable specific standards contained in the supplemental use regulations (article 6), and with all other applicable regulations;
(3)
That the use or development is located, designed, and proposed to be operated so as to maintain or enhance the value of contiguous property, or that the use or development is a public necessity; and
(4)
That the use or development conforms with the general plans for the physical development of the town as embodied in this appendix and in the comprehensive plan.
(b)
In the case where a special use permit is requested for a parcel of land covered by an approved and valid master land use plan (as defined in subsection 4.8.1), and the proposed development is consistent with the master land use plan, then a rebuttable presumption shall be established that the town council can make findings (1), (3) and (4) above.
(c)
Except where more restrictive specific standards are required below, or as modified as described in subsection 4.5.6, special uses shall comply with the dimensional regulations established in section 3.5 for the zoning district in which such use is located and the use group to which such use belongs, and with the design standards established in article 5 of this appendix.
(d)
In addition to the general determinations required in subsection (a) and (b), above, any supplemental use regulations established in Article 6 shall apply for the designated special use.
4.5.3 Procedures for Approval of Special Use Permits.
(a)
Application submittal requirements.
(1)
Applications for special use permits shall be filed with the town manager.
(2)
The town manager shall prescribe the form(s) on which applications are made. Applications shall include the name and address of the applicant, the name and address of the owner of each zoning lot involved, and the relationship of the applicant and property owner in connection with the application. If the applicant or property owner is an entity other than an individual, the application shall also include detailed information regarding the principals of the entity. The town manager shall prescribe any other material that may reasonably be required to determine compliance with this appendix, with sufficient copies for necessary referrals and records.
(3)
Special use permit and special use permit modification applications shall identify all proposed utilities providing service to the proposed development, whether on- and off-site, increases in utility capacity or modification of utility service facilities that are requested, the type of utility, and whether service lines are provided above the ground surface or underground.
(4)
No application shall be accepted by the town manager unless it complies with such requirements. Applications that are not complete shall be returned forthwith to the applicant, with a notation of the deficiencies in the application.
(b)
Town manager's analysis. When he/she accepts an application, the town manager shall cause representatives of the town, and such other agencies or officials as may be appropriate, to determine if it conforms to the comprehensive plan, the provisions of this chapter, and other regulations applicable in the case. In the case of planned developments, such representatives, agencies or officials shall define specifically the modifications of regulations which seem justified in view of the standards set out in section 6.18.
(c)
Preliminary conferences with applicant.
(1)
The town manager shall notify the applicant, in writing, of the proposal's deficiencies. The town manager shall also notify the applicant of his/her willingness to discuss alternatives to correct those deficiencies.
(2)
If the applicant joins in such discussions, the application may be modified, further discussions may be held, or additional information may be requested by the town manager.
(d)
Town manager's report to planning commission.
(1)
The town manager shall submit to the planning commission a written analysis of the application and his/her recommendation based on the findings required in section 4.5.2.
(2)
If the applicant does not join in preliminary conferences with the town manager, the town manager shall complete his/her report within twenty-five (25) working days after he/she accepts the application or within such further time consented to in writing by the applicant or established by town council resolution. If the town manager fails to prepare his/her report to the planning commission within this time limit, or extensions thereof, the application shall be deemed to be recommended without conditions.
(3)
If the applicant participates in preliminary conferences with the town manager, the town manager shall prepare his/her report to the planning commission when further conferences appear unnecessary. No time limits shall apply to the town manager's review when the applicant joins in preliminary conferences. However, the applicant may require the town manager to submit the application and his/her report to the planning commission whenever the applicant wishes to end discussions.
(4)
The town manager shall forward his/her report to the planning commission at its next available regularly scheduled meeting.
(e)
Planning commission review.
(1)
The planning commission shall review the application and the town manager's report and shall submit to the town council a written recommendation based on the findings required in subsection 4.5.2.
(2)
The planning commission shall prepare its recommendations within thirty-five (35) days of the meeting at which the town manager's report is submitted to it or within such further time consented to in writing by the applicant or by town council resolution. If the planning commission fails to prepare its recommendation to the town council within this time limit, or extensions thereof, the planning commission shall be deemed to recommend approval of the application without conditions.
(3)
The town manager shall then forward his/her report and the planning commission's recommendation to the town council at the next available public hearing scheduled for special use permit applications.
(f)
Public hearing.
(1)
After receiving the town manager's report and the planning commission's recommendation or, if applicable, the expiration of the time limit prescribed in subsection 4.5.3.(e)(2), the town council shall hold a hearing on the application at the next available regularly scheduled public hearing. The town council shall adopt a schedule of public hearings by resolution. Once the schedule is adopted, any amendment which reduces the number of hearings shall not become effective for at least six (6) months after adoption of the amendment.
(2)
Notice of the date, time, and place of the public hearing shall be published in a newspaper of general circulation in the planning jurisdiction once a week for two (2) successive weeks, with the first notice to be published not less than ten (10) nor more than twenty-five (25) days prior to the date of the hearing.
(3)
The public hearing shall be open to the public and all interested persons shall be given the opportunity to present evidence and arguments and to ask questions of persons who testify. The town council may place reasonable and equitable limitations on the presentation of evidence and arguments and the cross-examination of witnesses to avoid undue delay. All persons who intend to present evidence at the public hearing shall be sworn.
(4)
The applicant shall bear the burden of presenting evidence sufficient to establish that the proposed development will comply with the determinations required in subsection 4.5.2.
(5)
A record of the proceedings of the hearing shall be made and shall include all documentary evidence presented at the hearing.
(g)
Town manager's report to town council.
(1)
After completion of the initial public hearing, the town manager and town attorney shall review the record of the public hearing and the town manager shall submit to the town council an analysis and his/her recommendation for action.
(2)
The town manager shall submit his/her report to the town council within thirty (30) days after completion of the public hearing, or within such further time consented to by written notice from the applicant or by town council resolution.
(3)
If the town manager fails to submit a recommendation to the town council within this time limit, or extensions thereof, his/her recommendation shall be the same as his/her preliminary recommendation.
(h)
Town council action.
(1)
The town council shall review the record of the public hearing, the planning commission's recommendation, and the town manager's report and shall act on the application based on the findings required in subsection 4.5.2. All findings shall be based on competent material and substantial evidence presented at the public hearing.
(2)
Action on the application shall be one of the following: (a) Approval; (b) Approval subject to conditions; or (c) Denial.
(i)
Effect of denial or withdrawal on subsequent applications. When the town council has denied an application or the applicant has withdrawn his/her application by written notice after publication of the first public hearing notice required in subsection 4.5.3.(f), the town manager shall not accept another application for approval of the same or similar special use or planned development, affecting the same property or a portion thereof, until twelve (12) months have elapsed from the date of denial or withdrawal, as appropriate.
(j)
Amended applications. The applicant shall submit an amended application for review as an original application if he/she proposes, in the town manager's opinion, to substantially amend or modify his/her application after the town manager's review; but no modification(s) agreed to by the applicant as a result of requests or suggestions by the town manager, the planning commission, or the town council shall require an amended or original application.
(k)
Notice of decision and issuance of special use permit.
(1)
The town manager shall notify the applicant of the town council's decision in writing and shall file a copy of it with the town's planning department.
(2)
If the application is approved or approved with conditions, the town manager shall issue the necessary special use permit in accord with the action of the town council. The applicant shall record such permit in the office of the appropriate county register of deeds.
(3)
The special use permit, including all conditions attached thereto, shall run with the land and shall be binding on the original applicant as well as all successors, assigns, and heirs.
(l)
Appeal of decision. The town council's decision on an application for a special use permit may be appealed to superior court within thirty (30) days of the decision.
(m)
Final plan approval.
(1)
The town manager shall not issue a zoning compliance permit for development approved in a special use permit unless and until such special use permit has been recorded and the town manager has approved final plans for the development as a whole, or for any phase thereof. The town manager shall prescribe the form and content of such final plans.
(2)
Approval of final plans shall be based on compliance with all applicable regulations and requirements, including all conditions attached to the special use permit.
(n)
Issuance of development permits. After final plan approval, the town manager may issue zoning compliance permits, engineering construction permits, building permits, sign permits, and certificates of occupancy for development approved in a special use permit, or an approved phase thereof, in the manner prescribed in section 4.9, subject to compliance with the approved final plans and following additional requirements:
(1)
Prior to issuance of a building permit for any new structures, additions, and exterior renovations or alterations, detailed architectural elevations of such structures, additions, and renovations or alterations and a site lighting plan shall be submitted to and approved by the community design commission. This subdivision (n)(1) shall not apply to single-family and two-family structures approved by a special use permit unless voluntarily consented to by the owners of all properties included in such an application.
(2)
Prior to issuance of any zoning compliance permit for development approved in a special use permit, a detailed landscape plan for such development, or an approved phase thereof, shall be submitted to and approved by the town manager.
4.5.4 Modifications of Special Use Permits.
(a)
The town manager is authorized to approve minor changes in the approved final plans as long as such changes continue to comply with the approving action of the town council and all other applicable requirements, but shall not have the authority to approve changes that constitute a modification of the special use permit.
(b)
Any change requiring evidentiary support in addition to that presented at a public hearing on applications for the original special use permit or subsequent modifications of special use permit shall constitute a modification of the special use permit. Before making a determination as to whether a proposed action is a minor change or a modification, the town manager shall review the record of the proceedings on the original application for the special use permit and subsequent applications for modifications of the special use permit. The following shall constitute a modification of the special use permit:
(1)
A change in the boundaries of the site approved by the town council.
(2)
A change from the use approved by the town council.
(3)
An increase of five (5) percent or more in the floor area approved by the town council, unless proposed addition is two thousand, five hundred (2,500) square feet of floor area or less, whether such addition is proposed at one (1) time or over an extended period of time.
(4)
An increase of five (5) percent or more in the number of parking spaces approved by the town council, whether such addition is proposed at one (1) time or over an extended period of time.
(5)
Substantial changes in the location of principal and/or accessory structures approved by the town council.
(6)
Structural alterations significantly affecting the basic size, form, style, ornamentation, and appearance of principal and/or accessory structures as shown on the plans approved by the town council.
(7)
Substantial changes in pedestrian and bicycle or vehicular access or circulation approved by the town council. Examples of substantial changes include, but are not limited to:
A.
A change in trip distribution occurs that involves more than five (5) percent of all projected trips; or
B.
The change results in a reduction in the level of service (LOS) of a street link or intersection within one-quarter (¼) of a mile from the boundaries of the proposed development.
(8)
Substantial change in the amount or location of landscape screens approved by the town council shall constitute a modification.
(c)
If the proposed action is determined to be a modification, the town manager shall require the filing of an application for approval of the modification.
(d)
The town manager shall prescribe the form(s) of applications as well as any other material he/she may reasonably require to determine compliance with this article.
(e)
An application for modification of a special use permit shall be reviewed in accord with the procedures established in subsection 4.5.3.
(f)
No modification shall be allowed to a special use permit issued in a conditional use zoning district unless the applicant accepts all of the requirements and conditions the town council proposes to impose on the modification. Acceptance of conditions by the applicant may be indicated at the town council hearing on the special use permit modification or by affidavit submitted prior to the town council taking action on the modification application.
4.5.5 Expiration and Revocation of Special Use Permit Approvals.
(a)
Special use permit binding on land.
(1)
A special use permit or modification of special use permit shall run with the land covered by the permit or modification. Once construction authorized by a special use permit or modification of special use permit is started, no development other than that authorized by the permit or modification shall be approved on that land unless the permit or modification is first modified in accord with subsection 4.5.4, or voided or revoked in accord with the provisions of this section.
(2)
No special use permit authorizing development of property within a conditional use district may be abandoned or revoked unless the property is first rezoned to a general use zoning district.
(b)
Starting time limit. If the use, construction, or activity authorized by town council approval of an application for a special use permit or modification of special use permit is not started within twenty-four (24) months of the date of approval or within such further time stipulated in the approval, the approval shall expire and any town permit issued pursuant to the approval shall be void. The town manager shall determine whether the use, construction, or activity has started. The town manager may grant a single extension of the starting time limit for up to twelve (12) months, unless he/she determines that paramount considerations of health, the general welfare, or public safety require town council re-approval. in such instances the town manager shall require the application to be reviewed in accordance with the procedures set forth in subsection 4.5.3.
(c)
Completion time limit.
(1)
If all construction and actions authorized or required by a special use permit or modification of special use permit are not completed by the completion date stipulated in the permit or modification, the permit holder may request an extension of the completion time limit from the town manager. The town manager may grant a single extension of the time limit for up to twelve (12) months if he/she determines that:
A.
The permit holder submitted the request within sixty (60) days of the completion date;
B.
The permit holder has proceeded with due diligence and good faith; and
C.
Conditions have not changed so substantially as to warrant town council reconsideration of the approved development.
(2)
If all of the construction and actions authorized or required by a special use permit or modification of special use permit are still not completed by the extended completion date granted by the town manager, the permit holder may, within sixty (60) days of the revised completion date, request additional extensions of the completion time limit from the town council. The town council may grant extensions of the time limit if it makes the determinations required by (c)(1)(A) through (c)(1)(C), above.
(d)
Abandonment of special use permit.
(1)
On request by the holder of a special use permit or modification of special use permit, the town council shall approve the abandonment of the permit or modification if it determines that:
A.
No construction or activity authorized by the permit has been started and the starting time limit has not yet expired; or
B.
The development or use authorized by the permit or modification no longer requires a special use permit, and all conditions of the special use permit have been satisfied.
(2)
The permit holder shall submit a signed affidavit clearly stating the holder's intent to abandon the permit or modification.
(3)
Any abandonment approved by the town council shall not become effective until the affidavit of abandonment is recorded in the office of the appropriate county register of deeds.
(e)
Cessation of use. If the use(s) authorized by a special use permit or modification of special use permit ceases for a continuous period of twelve (12) months, the permit or modification shall automatically become void.
(f)
Revocation of special use permit. If any conditions of a special use permit or modification of special use permit, including completion time limits, or requirements of this appendix applicable to the permit or modification are violated, the town council may revoke or refuse to extend the permit or modification. The town council may reinstate a revoked special use permit or modification of special use permit if it determines that: a) the holder of the revoked permit or modification submitted a request for reinstatement to the town manager within ninety (90) days of the revocation; b) the violations that were the cause of the revocation have been corrected; and c) the development fully complies with all conditions of the permit or modification and all applicable requirements of this appendix. On request by the holder of a special use permit or modification of special use permit, the town council may revoke the permit or modification if it determines that:
(1)
Construction authorized by the permit or modification has been started and the completion time limit has not yet expired; and
(2)
The request is made in conjunction with an application for approval of a development other than that authorized by the permit or modification; and
(3)
The proposed development as approved by town council incorporates adequate consideration of the site's already disturbed land area in its design and previous commitments made under the special use process.
4.5.6 Permitted Modifications of Regulations.
Where actions, designs, or solutions proposed by the applicant are not literally in accord with applicable special use regulations, general regulations, or other regulations in this appendix, but the town council makes a finding in the particular case that public purposes are satisfied to an equivalent or greater degree, the town council may make specific modification of the regulations in the particular case. Any modification of regulations shall be explicitly indicated in the special use permit, or modification of special use permit.
4.5.7 Performance Standards During Construction.
The special use permit approval shall include conditions for work during construction consistent with section 5.15 of this appendix.
4.5.8 Reservation of School Sites.
Whenever a special use permit or special use permit modification application is submitted for approval which includes part or all of a school site designated to be reserved in the comprehensive plan, the town manager shall immediately notify the Chapel Hill/Carrboro Board of Education, and the board shall promptly decide whether it wishes the site to be reserved. If the board does not wish to reserve the site, it shall so notify the town manager and no site shall be reserved. If the board does wish to reserve the site, the special use permit or special use permit modification shall not be approved without such reservation. A note indicating such reservation shall be recorded on a final plat. The board shall then have eighteen (18) months beginning on the date of final approval of the special use permit or special use permit modification within which to acquire the site by purchase or by initiating condemnation proceedings. If the board has not purchased or begun proceedings to condemn the site within eighteen (18) months, the owner may treat the land as freed of the reservation.
(Ord. No. 2003-09-22/O-4, § 1; Ord. No. 2005-02-14/O-4, § 1; Ord. No. 2014-03-10/O-2, § 3 ; Ord. 2016-03-21/O-2 , § 3)