WILMINGTON — Special-use permits are on the chopping block as Wilmington city council and staff feedback favors conditional zonings instead. However, the planning commission has chosen to go through another month of analysis before it issues any recommendation.
READ MORE: Indoor-outdoor pickleball courts, bar and restaurant greenlit for expanded private club
Aside from the approval of two Kerr Avenue developments — one senior living complex at 710 Kerr and an annexed townhome development at the corner of MLK Parkway and Kerr — the Wilmington Planning Commission took up a land-code amendment submitted by staff this week.
In its language, the amendment is pretty simple: Eliminate special use permits and instead require property owners to submit a conditional rezoning on their property if they choose to pursue a land use outside of what’s allowed in their property’s zoning.
Wilmington has defined 22 special uses in the land code and which zonings a special use permit could be granted in. For example, zoos are allowed via special use permit in regional business and community business zonings.
Planning commissioner John Lennon wanted to know why special use permits were not eliminated during the city’s overhaul of the land code in 2021. Assistant Planning Director Brian Chambers said he would have to go back and analyze that decision but noted the rewrite whittled down special uses from 55 to 22, thus reducing the number of land uses needing a SUP.
The current amendment to do away with SUPs comes at the behest of city council in the wake of an arduous meeting for a permit request from the Holly Tree Racquet and Swim Club, approved last month.
“It was a disaster,” Lennon said at Wednesday’s planning commission meeting.
The Holly Tree special use permit meeting lasted a few hours, a large chunk of that time spent ruling on who among the crowd could speak. This is because special use permits require quasi-judicial hearings — hearings where a non-judicial body (like a city council or planning board) reviews evidence and takes witness testimony from people with “standing,” or those who can prove they’re directly affected by the rezoning’s outcome. This normally consists of residents living next to a project.
The applicant requesting the rezoning can tell the voting board whether they think a person has standing or not and can legally speak. The applicant also normally brings in experts in a field — in Holly Tree’s case it was a sound engineer due to pickleball noise and property appraisers to combat assumptions that the project would bring down home values. The public can also hire experts on their behalf, but they can’t make anecdotal statements about traffic or flooding without backing it up by expert-presented data.
A quasi-judicial hearing’s rules are mandated by state law and can’t be changed by a municipality.
Planning staff’s proposal this week was to use a conditional zoning process in place of SUP moving forward. Conditional zonings involve a longer, yet less strict process, and input is allowed from anyone that wants to speak on the zoning, not just those with standing. That can make conditional zonings more subject to the pressures of residents, who typically show up more to oppose projects rather than praise them.
While many of the city’s planning commissioners weren’t against making the change, they spent two hours of Wednesday’s meeting questioning its impact and if it was their only option. Lennon was the loudest detractor, saying he didn’t think the plan as presented was “well thought out.”
“I’m respectful of council, but because there’s one bad meeting experience, we want to throw this out,” Lennon said.
Wilmington has only had four SUP applications since 2022.
The commission unanimously voted to continue the amendment until next month’s meeting. They want staff to provide more information — on other towns and legal implications in the wake of the state’s new ban on downzoning — and alternatives to complete elimination.
“I don’t think that throwing out the baby with the bath water all the time is the right way to go — I think there’s some options,” commissioner Richard Collier said.
Not all municipalities use special use permits — Charlotte being the model city staff based its current change request on — because of similarities with conditional zonings. Though SUPs can be more efficient and less rooted in anecdotal testimony. Because conditional zonings happen more often than SUPs, the public is accustomed to the looser conditional zoning hearings.
Almost every quasi-judicial decision is met by confusion from the public over rules, often leading to frustrations when people are told they can’t offer their input. That is what happened back in February with Holly Tree’s SUP request.
Holly Tree Club submitted plans to convert eight outdoor tennis courts to pickleball, add 10 indoor pickleball courts, upgrade the pool to a resort-style lap pool, and install a new pool house. Plans also include the addition of an upscale restaurant and bar located in the renovated clubhouse and 400 more parking spaces to accompany the new offerings.
The club is located in the middle of an area zoned for single-family residences, where commercial offerings are normally not barred, but the club was established in 1994 before the city’s land code.
Holly Tree’s proposal was not well-liked by surrounding residents, concerned about increased noise and traffic; however, some didn’t have “standing” to speak. Council cleared three of five people, though council member Charlie Rivenbark took up for the residents before the hearing began.
“I’ve always had an issue that the applicant pops in with a hydrologist, engineer, appraiser,” he said, “and whether the residents have standing or not — most people don’t understand how this works — they’re at a severe disadvantage at this point.”
City resident Dan Bailey, the only person to speak during the amendment’s public hearing in front of the planning commission Wednesday, similarly discussed the layman’s plight.
“It’s become a pay-to-play process,” Bailey said. “This gentleman [Commissioner Lennon] over here said: ‘Well, they can just bring their expert witnesses.’ You know how much that costs?”
Though this was before Bailey’s remarks, Lennon warned against turning the facts-based quasi-judicial hearing into a free-for-all.
“When we say ‘public engagement,’ what we mean is giving people 10 minutes at the microphone to voice opinions,” Lennon said. “And I don’t want to — I’m not diminishing that; I think people should be able to express that. But that shouldn’t drive rezoning decisions.”
Commissioner Danny Adams agreed decisions should be made based on well-informed analysis, but said that was not exclusive from public participation.
“The whole reason we exist is because we’re content and subject-matter experts,” Adams said. “For us to be able to offer our guidance, no matter what voices we hear, whether they’re qualified or not, they live adjacent to the property — I think that us as a body, we have the ability to kind of parse that out.”
Adams said he was in favor of a more standardized and inclusive process regarding land use. Chair Jack Pollock agreed, saying he didn’t think the public would lose out due to the change.
Commissioner Livian Jones pointed out the county has found a compromise; its planning board reviews the material of a SUP to ensure its completion and compliance before it heads to county commissioners. The compliance meetings are available to anyone who wishes to speak on a project and the planning board can offer suggestions on whether residents meet standing before they appear before commissioners for the official hearing.
Commissioner Ace Cofer said he preferred land-use decisions be vetted before they head to council, either by them or the board of adjustment. Commissioner Ron Woodruff agreed.
Though the commission looked poised to pass the amendment with their recommendation, Lennon pointed out he noticed every commissioner expressed reservations and the need for a “dress rehearsal” before heading to a decision-making board. Lennon wanted staff to bring back more information.
“Even if our quote-unquote recommendation is to continue and to request staff to come back with something more comprehensive, and council chooses to move ahead [with the original amendment,] I’m fine with that,” Lennon said.
Staff were directed to return with legal analysis of the change, a run-down of Charlotte’s decision to eliminate SUPs along with other peer cities, and alternatives to completely eradicating the SUP.
Reach journalist Brenna Flanagan at brenna@localdailymedia.com.
Want to read more from PCD? Subscribe now and then sign up for our newsletter, Wilmington Wire, and get the headlines delivered to your inbox every morning.
