BRUNSWICK COUNTY — The Brunswick County Board of Commissioners oversaw its first special use permit, involving a quasi-judicial hearing process, since the state legislature handed them development authority from the planning board in July.
Commissioners met Aug. 17 and had to hear two rezoning cases that were appealed by residents and a special-use permit. The rezonings had technically been approved by the planning board but were appealed by neighboring residents and both passed 4-1.
The quasi-judicial hearing, a court-like proceeding based on evidence, questioning and expertise, formerly would have gone to the planning board first. However, due to the passage of House Bill 1222, commissioners are to make final developmental decisions with planning board recommendation only. Though, this does not apply to special-use, which are only heard by commissioners and come without recommendation.
READ MORE: New state law transfers development power from Brunswick planning board to commissioners
ALSO: State bills propose shake-up in Brunswick development process, some commissioners agree
Due to the law change, commissioners are on the hook to decide how to proceed on all major site plans, subdivisions and plats. While Pat Sykes and Randy Thompson spoke with Port City Daily previously, favoring the final decision outlined in the legislation, Sykes took issue, still, with further requirements added to the bill.
“We’re hurting our small business owners, constantly trying to throw more costs onto them,” Sykes said of one mandate that a traffic impact analysis be required for almost every proposal.
Everyone on the board was against this. House Bill 1222 stipulates TIAs are required for a preliminary subdivision plat with 25 or more lots, a major site plan, and planned development. Before, it was only mandated and required by North Carolina Department of Transportation for projects anticipated to generate at least 100 vehicle trips at peak hour or 1,000 vehicle trips per day, with developers footing the bill.
Chair Mike Forte thought new requirements would “kill mom and pop businesses.” Traffic studies can range anywhere from $7,000 to $25,000, depending on the scale of a project.
“We’re not talking monster corporations,” Forte said.
Case in hand: Salty Paws Dog Daycare, a business that would only expect a handful cars coming to them during morning and end-of-day business hours, went before commissioners this week to apply for a special use permit. Applicant Jennifer Anderson did not do a TIA because she said the business is not expected to significantly increase or impact traffic.
No more than 15 dogs would be there at a time, from 8 a.m. to 5 p.m., at the daycare and boarding business, proposed on 0.84 acres of land, outfitted with a yard for the dogs to run and climate-controlled indoor facilities. It’s zoned commercial low density and a “kennel,” which is what a dog daycare is classified as in the unified development ordinance, requires a special use permit in the zoning designation.
Staff explained the absence of a TIA made the application incomplete under state law, though the county unified development ordinance did not require one. Vice Chair Marty Cooke asked county attorney Bryan Batton if it was possible to approve the permit without the TIA. Batton explained, technically, the county needed to require it, but he did not answer about the legality of approving an incomplete application.
“I’m going to vote they don’t need one,” Sykes said in response. “I mean, who’s going to enforce it?”
Resident Samuel Varnum, who owns the building the daycare would be in and also a campground nearby, was confused and dismayed by the new legislation.
“What is the definition of reasonable?” he asked.
He was the only person sworn in and allowed to speak with standing. A quasi-judicial process only allows the applicant, government staff, residents and neighbors who will be impacted by the proposal to speak, as well as expert witnesses, all of whom must be sworn in. Varnum ultimately favored the business.
The commissioners took about 20 minutes hearing the presentation and understanding the quasi-judicial process, especially under the new restrictions. Forte apologized to Anderson for any confusion, noting it was their first time holding this type of hearing.
She was amenable: “I’m the first small business that’s coming through the process, so we’re just gonna all bear with it.”
Sykes asked county attorney Batton about the NCDOT’s interpretation of the new legislation, since traffic studies need to be approved to be accepted as a part of an application. County staff explained the agency doesn’t require a TIA for this use — as well as some others — which means they would not review it, even if completed.
Commissioners made it clear at the beginning of the proceedings they would approve the permit without a TIA, some calling the new rule an “overreach” by the state legislature.
Despite his concerns about restricting small businesses, Cooke still hesitated: “I don’t think we can circumvent state law.”
He later flipped the script to vote in favor, stating the General Assembly’s decision was unwarranted to decide what authority the local government should have. He reiterated the legislation is unfair to business owners.
“If they don’t like it, we’ll apologize later,” Cooke said.
Ultimately, the doggy daycare permit passed 4-1, with commissioner Frank Williams dissenting due to not having the TIA.
“If the General Assembly gets upset, that’s not the first time,” Forte said.
Commissioners floated several ideas and opinions past Batton to amend the state law as well. Sykes suggested discussing a bill amendment with local representatives, particularly addressing the traffic impact analysis requirements. Batton said TIAs in the county typically applied to large residential developments, which aren’t covered by special use permits unless it’s a group living facility or mobile home park.
He also asked commissioners if they would be interested in giving special use permit authority completely to the board of adjustment, which the commissioners were open to. Special use permits and quasi-judicial hearings are overseen by the board of adjustment in other municipalities like Leland and Southport; however, in Pender and New Hanover counties, commissioners oversee the process.
Batton told commissioners he would prepare language for them to review at the next meeting in regards to appealing TIA rules.
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