WILMINGTON — The Wilmington Planning Commission’s debate over special-use hearings turned into a proxy for how the public contributes in development decisions at the commission’s meeting last week.
READ MORE: City considers banishing special use permits after Holly Tree rec facility ‘disaster’
The commission voted 4-3 — Commissioners John Lennon, Richard Collier and Livian Jones dissenting — in favor of ridding its land code of special use permits. These devices are for uncommon land utilizations like zoos, universities, or assisted living facilities that need special approval in certain zoning districts.
After a grueling four-hour special-use permit hearing in February, city council directed the planning commission and staff to explore the ramifications of eliminating SUPs, and thus the quasi-judicial process required by law when granting them.
The issue was first brought before the planning commission last month, though unanswered questions left commissioners hesitant to decide.
This time around city attorney Meredith Everhart came to represent the council’s position.
“Quasi-judicial hearings are just more onerous for the individuals who are in the community, “ Everhart said. “They don’t know what they’re required to do at a quasi-judicial hearing. They don’t know what experts they’re required to bring with them. If they even know that they’re required to bring experts with them, they don’t know what to say. It’s just very confusing for everyone who’s involved, and it discourages a lot of public benefit to that extent — and it’s built that way.”
Staff recommended removing special-use permits for 22 items in Wilmington’s code and instead requiring property owners to seek conditional zoning. Doing so would benefit the community more so than property owners seeking the special use — without the expert testimony requirement, referred to as “standing,” more residents would be able to share their feedback, thus opening up the decision to more subjectivity.
The perceived imbalance associated with the move was unacceptable to Commissioner John Lennon.
“The argument that the development community has got to pay all the money for the experts and the public doesn’t have to pay anything, they can get up there and say whatever they want — that’s not good government,” he said.
Chair Jack Pollock was unsettled by the doubt cast on the value of public feedback.
“I do bristle when the objection to ‘but those people don’t have the professional expertise’ that has been used with me, and I wrestle with that,” Pollock said.
Lennon, along with Commissioner Jones, were also against making the change because of “one disaster” of a meeting.
Holly Tree Racquet and Swim Club won approval for its extensive expansion — Holly Tree Club eight outdoor tennis courts converted to pickleball, 10 indoor pickleball courts, the pool upgraded to a resort-style lap pool, and a new pool house, a new restaurant and bar and 400 more parking spaces — at a February council meeting, despite significant pushback from neighbors. Council spent a large chunk of the meeting ruling on who among the crowd could speak.
“It was very painful,” Jones said, noting she wasn’t in favor of making a change based on convenience. “I like the factual basis of it because we’ve all been in these meetings where somebody will get up and say, ‘I’ve already got water on my property. This being built here will put more water on my property.’ Well, you don’t have any stormwater regulations imposed on your property — that’s what the engineers are here to do.”
However, occurrences like the Holly Tree expansion are rare; Wilmington has only had four SUP applications since 2022.
Everhart pushed back on the notion the move was being done out of convenience.
“The responses that came out of that meeting, especially from the public were extremely negative; they felt like they were being cut out,” Everhart said.
Everhart said conditional zonings would still allow for expert testimony, both from city staff and an applicant’s development team.
Lennon, concerned with property rights, said these conditions would not be based purely on code, but rather the beliefs of council swayed by frustrated residents, Everhart said developers had the ability to refuse any condition. Lennon insinuated that refusal would come with a rejection of a project.
“Mandate may be a strong word, but imply might be another one,” Lennon said.
“It’s the process itself that made it so painful, and I think that that’s why things are not a requirement to use anywhere,” Everhart said, adding that several municipalities, like Charlotte, have chosen to do away with SUPs completely.
Assistant Planning Director Brian Chambers, who has been at the city for two decades, pointed out SUPs were a mechanism before conditional zonings were created: “You very well could have just had that option.”
What wasn’t in place 20 years ago: the North Carolina General Assembly’s prohibition on “downzoning,” or shrinking the allowed uses of a property, without property owner consent. Criticized for its usurping of local zoning control, S.B. 382, brought forth last year, has caused confusion among local boards who struggle to define downzoning and fear breaking the law.
Everhart said she discussed the matter with the UNC School of Government, which assured her the city’s elimination of SUPs would be a process change, not a downzoning.
“I cannot see anything damaged by this change,” Commissioner Ace Cofer said, though he noted he would like to see a provision where conditional zonings could expire, like SUPs do after three years, if not completed by the applicant.
Still, Lennon said he disagreed with Everhart’s assessment of the downzoning law, noting Wilmington would be the “guinea pig” for the enforcement.
Commissioner and city council candidate Richard Collier suggested the process stay the same, yet be put under the Wilmington Board of Adjustment’s purview, since the board already deals in quasi-judicial hearings. However, Chair Pollock suggested this would merely be a transfer of the problem and the notion didn’t pick up steam.
Per the commission’s vote, the elimination will move forward with its recommendation; council is scheduled to take up the matter June 3.
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