Sec. 3.9. Special Use Permit

3.9.1. Applicability

A. Special uses within the zoning districts are considered to be uses which are appropriate in a particular zoning district but because of their potential for incompatibility with surrounding uses require individual review.

B. A minor special use permit shall be required for all minor special uses as set forth in the use table in Sec. 5.1, Use Table, and as may be specified elsewhere in this Ordinance. Minor special use permits require approval by the Board of Adjustment, except pursuant to paragraph 3.9.1E, below.

C. A major special use permit shall be required for all major special uses as set forth in the use table in Sec. 5.1, Use Table; for spray irrigation in a conservation subdivisionClosed All divisions of a tract or parcel of land into two or more lots, building sites, or other divisions for the purpose of sale or building development (whether immediate or future) or any division of land involving the dedication of a new street or a change in existing streets. pursuant to paragraph 6.2.4, Conservation Subdivision; and as specified elsewhere in this Ordinance. Major special use permits require approval by the appropriate governing body.

D. A transportation special use permit shall be required for developmentClosed Pursuant to NCGS 160D-102, any of the following: a. The construction, erection, alteration, enlargement, renovation, substantial repair, movement to another site, or demolition of any structure. b. The excavation, grading, filling, clearing, or alteration of land. c. The subdivision of land as defined in G.S. 160D-802. d. The initiation or substantial change in the use of land or the intensity of use of land. projects with corresponding site plansClosed An accurately scaled development plan that shows existing conditions on a site as well as depicting details of proposed development. and preliminary platsClosed A map indicating the proposed layout of a development and related information that is submitted for preliminary review. pursuant to paragraph 3.9.10, Transportation Special Use Permit. Transportation special use permits require approval by the appropriate governing body.

E. Projects that require not only a major and/or transportation special use permit, but also a minor special use permit, may have the use permits consolidated into a single hearing before the appropriate governing body so long as all required findings for each special use permit are made. Separate orders for each special use permit shall be issued.

3.9.2. Pre-Application Conference

All applicants applying for a special use permit shall schedule a pre-application conference in accordance with paragraph 3.2.2, Pre-Application Conference.

3.9.3. Application Requirements

All applications for special use permits shall be submitted in accordance with paragraph 3.2.4, Application Requirements.

3.9.4. Notice and Public Hearings

Once the application has been determined complete, the Planning Director or designee shall schedule a public hearing and give public notice as set forth in paragraph 3.2.5, Notice and Public Hearings.

3.9.5. Action by the Planning Director

The Planning Director or designee shall prepare a report that reviews the special use permit in light of any requirements of this Ordinance. A copy shall be provided to the Board of Adjustment or the governing body, as appropriate, and the applicant.

3.9.6. Approval of a Minor Special Use Permit

A. Prior to scheduling the public hearing on the minor special use permit, the corresponding site planClosed An accurately scaled development plan that shows existing conditions on a site as well as depicting details of proposed development. or architectural review application, as applicable, shall be ready for action by the approving authority.

B. The applicant seeking the special use permit shall have the burden of presenting evidence sufficient to allow the approving authority to reach the conclusions set forth below, as well as the burden of persuasion on those issues.

C. After conducting the public hearing and hearing the recommendations of the Planning Director or designee, the Board of Adjustment shall:

1. Approve the request;

2. Approve the request with conditions.

3. Deny the request; or

4. Continue the hearing.

D. Conditions may be incorporated as part of the approval of the special use permit to assure that adequate mitigation measures are associated with the use or design pursuant to NCGS §160D-705(c), as applicable. The conditions shall become a part of the minor special use permit approval. ViolationsClosed The establishment, creation, expansion, alteration, occupation or maintenance of any use, land development activity, or structure, including but not limited to signs and buildings, that is inconsistent with any provision of this Ordinance or any order, approval, or authorization issued pursuant to this Ordinance. of any of the conditions shall be treated in the same manner as other violationsClosed The establishment, creation, expansion, alteration, occupation or maintenance of any use, land development activity, or structure, including but not limited to signs and buildings, that is inconsistent with any provision of this Ordinance or any order, approval, or authorization issued pursuant to this Ordinance. of this Ordinance.

3.9.7. Approval of a Major or Transportation Special Use Permit

A. Prior to scheduling the public hearing on the major or transportation special use permit, the corresponding site planClosed An accurately scaled development plan that shows existing conditions on a site as well as depicting details of proposed development. shall be ready for action by the approving authority.

B. After conducting the public hearing and hearing the recommendations of the Planning Director, Transportation Director, or their designee as appropriate, the governing body shall:

1. Approve the request;

2. Approve the request with conditions.

3. Deny the request; or

4. Continue the hearing.

C. The governing body may place conditions on the use as part of the approval to assure that adequate mitigation measures are associated with the use. The conditions shall become a part of the major special use permit approval. ViolationsClosed The establishment, creation, expansion, alteration, occupation or maintenance of any use, land development activity, or structure, including but not limited to signs and buildings, that is inconsistent with any provision of this Ordinance or any order, approval, or authorization issued pursuant to this Ordinance. of any of the conditions shall be treated in the same manner as other violationsClosed The establishment, creation, expansion, alteration, occupation or maintenance of any use, land development activity, or structure, including but not limited to signs and buildings, that is inconsistent with any provision of this Ordinance or any order, approval, or authorization issued pursuant to this Ordinance. of this Ordinance.

3.9.8. Criteria for Approval of Major or Minor Special Use Permits

A. General Findings

Unless otherwise specified in this Ordinance, applications for major or minor special use permits shall be approved only if the approving authority finds that the use as proposed, or the use as proposed with conditions, is:

1. In harmony with the area and not substantially injurious to the value of properties in the general vicinity;

2. In conformance with all special requirements applicable to the use;

3. Will not adversely affect the health or safety of the public; and

4. Will adequately address the review factors identified below.

B. Review Factors

The applicant shall demonstrate that the review factors listed below have been adequately addressed. If an application is denied, the approving authority shall specify which of these review factors, if any, were not adequately addressed.

1. Circulation

Number and location of access points to the property and the proposed structures and uses, with particular reference to automotive, bicycle, mass transit and pedestrian safety and convenience, traffic flow and control, and access in case of fire or catastrophe.

2. Parking and Loading

Location of off-street parking and loading areasClosed A space used to transfer goods and material between vehicles and a building or lot..

3. Service Entrances and Areas

Locations of refuse and service areasClosed In Design Districts, the service area is a designation for portions of buildings or sites that are used for loading areas including garage entries; trash/recycling facilities; secondary fire code egress; and mechanical equipment or utilities that are not permitted by code to be underground or on rooftops. with particular reference to ingress and egress of service vehiclesClosed All motorized vehicles as defined by the State of North Carolina Department of Motor Vehicles, including but not limited to automobiles, trucks, all-terrain vehicles (ATVs), and motorcycles. This definition shall not include “Heavy Equipment” as defined elsewhere..

4. Lighting

Locations of exterior lighting with reference to glare, traffic safety, economic effect and compatibility with other property in the area.

5. Signs

Appropriateness of signsClosed Any words, lettering, parts of letters, figures, numerals, phrases, sentences, emblems, devices, structures, designs, trade names, or trade marks by which anything is made known such as are used to designate an individual, a firm, an association, a corporation, a profession, a business, or a commodity or products, which are legible from any public street or adjacent property and used to attract attention. This definition includes the structure or the face on which a sign message is displayed. For the purposes of this Ordinance, this definition shall not include "trade dress" i.e.: architectural features identified with a product or business, as a sign. considering location, color, height, size, and design within the context of other property in the area.

6. Utilities

Location and availability of utilities.

7. Open Spaces

Location of required yardsClosed A space on the same lot with a building or group of buildings, which space lies between the building or group of buildings and the nearest lot line. and other open spacesClosed Areas of a development that allow for light, air, wildlife habitat, and for scenic and recreational use. Also included are areas designed to enhance the privacy or general appearance of a development. Private open space is open space that is owned by a corporation, individual, or house owners association. Public open space is open space owned by a governmental jurisdiction. and preservation of existing trees and other natural features.

8. Environmental Protection

Preservation of tree cover, Durham InventoryClosed See "Durham Inventory" Sites, floodplain, stream buffersClosed A natural or vegetated area adjacent to a stream through which stormwater runoff flows in a diffuse manner so that the runoff does not become channelized and which provides for the infiltration of runoff and filtering of pollutants., wetlandsClosed An area that is inundated or saturated by surface water or groundwater at a frequency and duration sufficient to support, and under normal circumstances does support, a prevalence of vegetation typically adapted for life in saturated soil conditions, commonly as hydrophytic vegetation, as defined by responsible State or Federal agencies., steep slopes, open spaceClosed Areas of a development that allow for light, air, wildlife habitat, and for scenic and recreational use. Also included are areas designed to enhance the privacy or general appearance of a development. Private open space is open space that is owned by a corporation, individual, or house owners association. Public open space is open space owned by a governmental jurisdiction. and other natural features, and protection of water quality.

9. Screening, Buffering and Landscaping

Installation of screeningClosed The use of plant materials and other landscape or architectural elements used separately or in combination to obscure views., buffering, fencing and landscaping where necessary to protect adjacentClosed Property abutting directly on the boundary of, touching, or sharing a common point. property.

10. Effect on Nearby Properties

Effects of the proposed use on nearby properties, including, but not limited to, the effects of noise, odor, lighting, and traffic.

11. Compatibility

The level of general compatibility with nearby properties and impacted neighborhoods, including but not limited to the appropriateness of the scale, design, and use in relationship to other properties.

12. Consistency with Policy

Consistency with the Comprehensive PlanClosed The overall development plan for the community which has been officially adopted to provide long-range development policies including all specified individual elements thereof among which are the plans for land intensities; land subdivision; circulation; and community facilities, utilities and services. and applicable developmentClosed Pursuant to NCGS 160D-102, any of the following: a. The construction, erection, alteration, enlargement, renovation, substantial repair, movement to another site, or demolition of any structure. b. The excavation, grading, filling, clearing, or alteration of land. c. The subdivision of land as defined in G.S. 160D-802. d. The initiation or substantial change in the use of land or the intensity of use of land. tier guidelines, overlay purposes, and zoning district intent statements in Article 4, Zoning Districts.

13. Other Factors

Any other review factors which the approving authority considers to be appropriate to the property in question.

C. Additional Review Factors for Development in Special Flood Hazard Areas and Future Conditions Flood Hazard Areas

The applicant for a minor special use permit under this section shall demonstrate that the additional review factors listed below have been adequately addressed. If the application is denied, the Board of Adjustment shall specify which of these review factors, if any, were not adequately addressed.

1. Susceptibility of the proposed facility, structureClosed A walled or roofed constructed object that is principally above ground; vertical projections meeting the definition of antenna-supporting or wireless support structures; or, when used in reference to Sec. 8.4, Floodplain and Flood Damage Protection Standards, a gas or liquid storage tank that is principally above ground. Included in this definition are extensions or additions which are covered by a roof supported by walls or columns, such as but not limited to porte cocheres, carports, covered or screened porches, and breezeways., or other developmentClosed Pursuant to NCGS 160D-102, any of the following: a. The construction, erection, alteration, enlargement, renovation, substantial repair, movement to another site, or demolition of any structure. b. The excavation, grading, filling, clearing, or alteration of land. c. The subdivision of land as defined in G.S. 160D-802. d. The initiation or substantial change in the use of land or the intensity of use of land. and its contents to flood damage and the effect of such damage on the individual property ownerClosed Any person having charge of any real property according to the records held by the Register of Deeds. and others as a result of flood damage;

2. Importance of the services provided by the proposed facility, structureClosed A walled or roofed constructed object that is principally above ground; vertical projections meeting the definition of antenna-supporting or wireless support structures; or, when used in reference to Sec. 8.4, Floodplain and Flood Damage Protection Standards, a gas or liquid storage tank that is principally above ground. Included in this definition are extensions or additions which are covered by a roof supported by walls or columns, such as but not limited to porte cocheres, carports, covered or screened porches, and breezeways., or other developmentClosed Pursuant to NCGS 160D-102, any of the following: a. The construction, erection, alteration, enlargement, renovation, substantial repair, movement to another site, or demolition of any structure. b. The excavation, grading, filling, clearing, or alteration of land. c. The subdivision of land as defined in G.S. 160D-802. d. The initiation or substantial change in the use of land or the intensity of use of land. to the community;

3. Necessity to the facility, structureClosed A walled or roofed constructed object that is principally above ground; vertical projections meeting the definition of antenna-supporting or wireless support structures; or, when used in reference to Sec. 8.4, Floodplain and Flood Damage Protection Standards, a gas or liquid storage tank that is principally above ground. Included in this definition are extensions or additions which are covered by a roof supported by walls or columns, such as but not limited to porte cocheres, carports, covered or screened porches, and breezeways., or other developmentClosed Pursuant to NCGS 160D-102, any of the following: a. The construction, erection, alteration, enlargement, renovation, substantial repair, movement to another site, or demolition of any structure. b. The excavation, grading, filling, clearing, or alteration of land. c. The subdivision of land as defined in G.S. 160D-802. d. The initiation or substantial change in the use of land or the intensity of use of land. of a waterfront location, where applicable;

4. Compatibility of the proposed use with existing and anticipated developmentClosed Pursuant to NCGS 160D-102, any of the following: a. The construction, erection, alteration, enlargement, renovation, substantial repair, movement to another site, or demolition of any structure. b. The excavation, grading, filling, clearing, or alteration of land. c. The subdivision of land as defined in G.S. 160D-802. d. The initiation or substantial change in the use of land or the intensity of use of land.;

5. Safety of access to the property in times of flood for ordinary and emergency vehiclesClosed All motorized vehicles as defined by the State of North Carolina Department of Motor Vehicles, including but not limited to automobiles, trucks, all-terrain vehicles (ATVs), and motorcycles. This definition shall not include “Heavy Equipment” as defined elsewhere.;

6. Expected heights, velocity, duration, rate of rise, and sedimentClosed Solid particulate matter, both mineral and organic, that has been, or is being, transported by water, air, gravity or ice from its site of origin. transport of the flood waters and the effects of wave action, if applicable, expected at the site;

7. Costs of providing governmental services during and after flood conditions including maintenance and repair of public utilitiesClosed A business or service that provides the public with electricity, gas, water and sewer service, telephone or cable television service. A wireless communication facility, unless regulated as a public utility by State or federal regulations, shall not be considered a public utility. and facilities such as sewer, gas, electrical and water systems, and streets and bridges;

8. Relationship of the proposed use to the comprehensive plan and floodplain management program for that area;

9. The proposed fill or developmentClosed Pursuant to NCGS 160D-102, any of the following: a. The construction, erection, alteration, enlargement, renovation, substantial repair, movement to another site, or demolition of any structure. b. The excavation, grading, filling, clearing, or alteration of land. c. The subdivision of land as defined in G.S. 160D-802. d. The initiation or substantial change in the use of land or the intensity of use of land. provides for a better balance between overall efficiency of the site design and improved conservation elsewhere on the site than would be possible without intrusion into the floodway fringeClosed The portion of the Special Flood Hazard Area that is outside of the Floodway., non-encroachment area fringeClosed The area within the special flood hazard area that is adjacent to, but not within, the non-encroachment area and is within the 100 year floodplain and is inundated by the base flood., Future Conditions FloodClosed The flood having a one (1) percent chance of being equaled or exceeded in any given year based on future conditions hydrology. Hazard Areas, or Areas of Shallow Flooding ZoneClosed A geographical area shown on a Flood Hazard Boundary Map or Flood Insurance Rate Map that reflects the severity or type of flooding in the area.e AO);

10. The proposed fill or developmentClosed Pursuant to NCGS 160D-102, any of the following: a. The construction, erection, alteration, enlargement, renovation, substantial repair, movement to another site, or demolition of any structure. b. The excavation, grading, filling, clearing, or alteration of land. c. The subdivision of land as defined in G.S. 160D-802. d. The initiation or substantial change in the use of land or the intensity of use of land. represents the minimum amount of floodway fringeClosed The portion of the Special Flood Hazard Area that is outside of the Floodway., non-encroachment area fringeClosed The area within the special flood hazard area that is adjacent to, but not within, the non-encroachment area and is within the 100 year floodplain and is inundated by the base flood., Future Conditions FloodClosed The flood having a one (1) percent chance of being equaled or exceeded in any given year based on future conditions hydrology. Hazard Areas, or Areas of Shallow Flooding ZoneClosed A geographical area shown on a Flood Hazard Boundary Map or Flood Insurance Rate Map that reflects the severity or type of flooding in the area.e AO) intrusion to achieve this better balance; and

11. Any other relevant factors, technical evaluations, or standards specified in other sections of this Ordinance.

3.9.9. Transportation Special Use Permit

A. Requirements

A transportation special use permit shall be required for developmentClosed Pursuant to NCGS 160D-102, any of the following: a. The construction, erection, alteration, enlargement, renovation, substantial repair, movement to another site, or demolition of any structure. b. The excavation, grading, filling, clearing, or alteration of land. c. The subdivision of land as defined in G.S. 160D-802. d. The initiation or substantial change in the use of land or the intensity of use of land. projects that are expected to generate:

1. 600 or more vehicleClosed All motorized vehicles as defined by the State of North Carolina Department of Motor Vehicles, including but not limited to automobiles, trucks, all-terrain vehicles (ATVs), and motorcycles. This definition shall not include “Heavy Equipment” as defined elsewhere. trips at peak hour; or

2. 300 or more vehicleClosed All motorized vehicles as defined by the State of North Carolina Department of Motor Vehicles, including but not limited to automobiles, trucks, all-terrain vehicles (ATVs), and motorcycles. This definition shall not include “Heavy Equipment” as defined elsewhere. trips at peak hour, if any roadClosed See “Street, Public” and “Street, Private.” serving the project is operating at a level of serviceClosed A measure of capacity per unit of demand for a public service or facility. An indicator of the extent or degree of service provided by, or proposed to be provided by, a facility based on and related to the operational characteristics of the facility. lower than the jurisdiction’s adopted level of serviceClosed A measure of capacity per unit of demand for a public service or facility. An indicator of the extent or degree of service provided by, or proposed to be provided by, a facility based on and related to the operational characteristics of the facility..

B. Exemptions

The following projects shall be exempt from the requirement of a transportation special use permit, even if they meet or exceed the thresholds specified above.

1. Projects that do not require a TIA per Sec. 3.3, Traffic Impact Analysis (TIA).

2. Projects within the UC, UC-2, or SRP zoning districts.

3. Projects outside of the City jurisdiction.

4. Projects which have submitted a TIA in connection with a zoning map change with a development planClosed A type of plan that becomes part of the zoning of a property that establishes the level of development allowed absent further zoning action except as otherwise allowed or required under this Ordinance., and which are developingClosed Pursuant to NCGS 160D-102, any of the following: a. The construction, erection, alteration, enlargement, renovation, substantial repair, movement to another site, or demolition of any structure. b. The excavation, grading, filling, clearing, or alteration of land. c. The subdivision of land as defined in G.S. 160D-802. d. The initiation or substantial change in the use of land or the intensity of use of land. consistent with the approved development planClosed A type of plan that becomes part of the zoning of a property that establishes the level of development allowed absent further zoning action except as otherwise allowed or required under this Ordinance., if the TIA is valid pursuant to paragraph 3.3.6, Period of Validity.

5. Schools as defined in NCGS §160A-307.1.

C. Criteria for Approval

Applications for a transportation special use permit shall be approved only if the governing body makes the following findings:

1. The traffic generated by the developmentClosed Pursuant to NCGS 160D-102, any of the following: a. The construction, erection, alteration, enlargement, renovation, substantial repair, movement to another site, or demolition of any structure. b. The excavation, grading, filling, clearing, or alteration of land. c. The subdivision of land as defined in G.S. 160D-802. d. The initiation or substantial change in the use of land or the intensity of use of land. and associated improvements to the street system will not have a significant adverse impact on the surrounding area. Significant adverse impact shall include:

a. Substantial increases in traffic on local residential streetsClosed Streets less than one mile in length that do not connect thoroughfares or major traffic generators that typically do not collect traffic from more than 25 dwelling units; or a loop street less than 2,500 feet in length. such that the majority of the traffic is not associated with the residential properties which front on the street; or

b. The need to widen local residential streetsClosed Streets less than one mile in length that do not connect thoroughfares or major traffic generators that typically do not collect traffic from more than 25 dwelling units; or a loop street less than 2,500 feet in length., which would detract significantly from the character or basic function of the nearby streets.

2. Adequate provisions have been made for safe and efficient vehicular circulation, parking and loading, and pedestrian access.

3. The traffic generated by the proposed developmentClosed Pursuant to NCGS 160D-102, any of the following: a. The construction, erection, alteration, enlargement, renovation, substantial repair, movement to another site, or demolition of any structure. b. The excavation, grading, filling, clearing, or alteration of land. c. The subdivision of land as defined in G.S. 160D-802. d. The initiation or substantial change in the use of land or the intensity of use of land. and any proposed improvements to the street system will not have a significant adverse impact on the environment. Significant adverse impacts shall include but not be limited to undue concentration of air pollutants, or excessive noise or vibrations.

4. The traffic generated by the developmentClosed Pursuant to NCGS 160D-102, any of the following: a. The construction, erection, alteration, enlargement, renovation, substantial repair, movement to another site, or demolition of any structure. b. The excavation, grading, filling, clearing, or alteration of land. c. The subdivision of land as defined in G.S. 160D-802. d. The initiation or substantial change in the use of land or the intensity of use of land. can be accommodated by the existing or funded transportation system, or adequate traffic mitigation measures have been proposed as part of the developmentClosed Pursuant to NCGS 160D-102, any of the following: a. The construction, erection, alteration, enlargement, renovation, substantial repair, movement to another site, or demolition of any structure. b. The excavation, grading, filling, clearing, or alteration of land. c. The subdivision of land as defined in G.S. 160D-802. d. The initiation or substantial change in the use of land or the intensity of use of land. application. Proposed mitigation measures shall become conditions of the special use permit. The adopted level of serviceClosed A measure of capacity per unit of demand for a public service or facility. An indicator of the extent or degree of service provided by, or proposed to be provided by, a facility based on and related to the operational characteristics of the facility. for the adjacentClosed Property abutting directly on the boundary of, touching, or sharing a common point. roadways may be considered in making this determination but shall not be the sole factor considered by the governing body.

3.9.10. Coordination with Variances

Applications for variancesClosed A grant of relief to a person from the requirements of this Ordinance which permits construction or use in a manner otherwise prohibited by this Ordinance where specific enforcement would result in unnecessary hardship. may be submitted concurrently with requests for special use permits. However, decisions shall be rendered separately for any varianceClosed A grant of relief to a person from the requirements of this Ordinance which permits construction or use in a manner otherwise prohibited by this Ordinance where specific enforcement would result in unnecessary hardship. and the special use permit(s).

3.9.11. Coordination with Zoning Map Change Applications

An application for a special use permit may be reviewed concurrently with a zoning map change application. However, decisions shall be rendered with separate motions.

3.9.12. Resubmittals

An application for a special use permit which has been denied may be resubmitted if there has been a change in circumstances, as determined by the Planning Director or designee.

3.9.13. Expiration

A special use permit shall become null and void in any of the following cases:

A. If a site planClosed An accurately scaled development plan that shows existing conditions on a site as well as depicting details of proposed development. or architectural review, as applicable, is not approved within 12 months of the date of permit approval.

B. If an approved site planClosed An accurately scaled development plan that shows existing conditions on a site as well as depicting details of proposed development., architectural review application, or building permitClosed A permit issued by the Inspections Department in conformance with the State Building Code. expires.

C. If a building permitClosed A permit issued by the Inspections Department in conformance with the State Building Code. is not issued within two years of the date of approvalClosed The date of approving authority action., in cases where a corresponding site planClosed An accurately scaled development plan that shows existing conditions on a site as well as depicting details of proposed development. or architectural review is not required.

D. If a substantial violationClosed The establishment, creation, expansion, alteration, occupation or maintenance of any use, land development activity, or structure, including but not limited to signs and buildings, that is inconsistent with any provision of this Ordinance or any order, approval, or authorization issued pursuant to this Ordinance. of the conditions of the permit, as determined by the Planning Director or designee occurs. The addition of language to the special use permit regarding such voiding shall not be required.

E. Validity may be extended if vesting is determined per Sec. 3.20, Vested Rights.

3.9.14. Appeal

AppealClosed Request for review of a final order, interpretation or decision by any administrative official authorized to make such decision. from final action can be taken by filing a petition for certiorari with the Durham County Superior Court.

3.9.15. Recordation

The approved order for the special use permit, once the time period for appealClosed Request for review of a final order, interpretation or decision by any administrative official authorized to make such decision. has expired or once it has been upheld on appealClosed Request for review of a final order, interpretation or decision by any administrative official authorized to make such decision., shall be recorded at the applicable Register of Deeds.