Tuesday, January 18, 2022

Planning Commission could be removed from special-use permit requests, public involvement restricted

Currently, the Planning Commission is part of the process applicants have to go through in order to acquire a special use permit, but that could soon be changing.

This week the Wilmington Planning Commission will hold public hearings for the 1-million-square-foot development; two commissioners worked on the project, but won't discuss possible conflicts of interest. (Port City Daily photo | Benjamin Schachtman)
The Wilmington Planning Commission has submitted a request to change how special use permit applications happen in Wilmington. (Port City Daily photo | Benjamin Schachtman)

WILMINGTON — The City of Wilmington’s Planning Commission will decide next week whether to remove itself from the special-use process, leaving the process solely in the hands of City Council.

Currently, Wilmington – like many other governmental bodies – utilizes a system of boards and committees to guide decisions made on behalf of residents — when it comes to zoning requests, it is typical for three different boards to put eyes on plans before a final vote on a special-use permit (SUP) is taken.

In early 2018, the Planning Commission also voted to remove itself from the process of allowing taller buildings, up to 75 feet. The plan, approved by City Council in April of last year, allows developers to apply directly to city council using a development agreement instead of a SUP.

So what are special use permits?

“Each zoning district includes permitted uses and development standards that go with them; if a use is permitted and meets the objective development standards, such as setbacks and building height, it is approved by staff. If it does not, it is denied. Special use permits add flexibility to the land development code by allowing certain uses that do not always fit neatly into the ‘yes’ category or ‘no’ category; they are a way to allow certain uses only upon finding that the specified standards will be met,” according to the request.

Residents of Wilmington will recognize these from The Avenue and CenterPoint developments which were both granted special-use permits to build up to 75-feet tall.

One of the reasons for the request is due to the nature of special-use permits which are quasi-judicial hearings.

According to the request, “When making decisions about special use permits, City Council must make a quasi-judicial decision and follow the same quasi-judicial procedures that apply to a board of adjustment; they are not legislative rezoning decisions. While it is common in North Carolina for special use permit applications to receive an informal review before an advisory board such as the Planning Commission, the process poses some potential legal concerns.

“First, only the evidence presented during the City Council hearing and made part of the record can be considered in determining a special use permit request; evidence presented during the Planning Commission review must not be considered. The recommendation of the Planning Commission may not be admissible as evidence. An applicant for a special use permit must present to City Council ‘competent, material, and substantial evidence, meeting all the conditions in the zoning ordinance,'” it concludes.

When these hearings take place, anyone who wishes to speak in favor or opposition of the projects have to be sworn in, and only evidence, not conjecture, can be used in decision making.

Planning Commission and public invovlement

So if the Planning Commission’s recommendation cannot be taken into account, what does it matter if they are involved?

One of the things the Planning Commission does is bring attention to pending projects and requests before City Council makes a decision. These Planning Commission meetings are regularly scheduled and the agendas for these meetings available for review online beforehand; this allows neighbors, residents, and anyone with a vested interest to speak in favor or against the request during the open meetings.

Removing the Planning Commission from the process limits the public involvement in the process; to accommodate this, the proposed amendment would require a community meeting prior to the City Council hearing the request.

But this does not bring the same visibility to a project that the Planning Commission does. If approved, the applicant would be required to hold a community meeting and notify all property owners within 300 feet of the requested special-use permit — that’s less than a city block, meaning the footprint for notified parties could be rather small.

If you are not within 300 feet, it is unlikely you would get the chance to go speak with the applicant before it makes its way to city council.

Even if you did manage to get a community meeting notice, nothing that is said during that meeting is admissible during its time before City Council.

In theory, a developer could promise you things at these community meetings with no intention of fulfilling them — and, under the regulations of the SUP, you could be prohibited from speaking about the conversation to your elected officials during the public hearing.

The Wilmington Planning Commission will hear and make its decision on the request on Jan. 9 during its first meeting of 2019.

The full text of the amendment can be found online.

Michael can be reached at Michael.p@localvoicemedia.com or on Twitter @Michael_Praats

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