Tuesday, January 18, 2022

Quasi-judicial, fully confusing: Understanding special-use permits in Wilmington

Special-use permit applications are somewhat tricky to understand, especially for residents who want to speak out against projects

When Wilmington's City Council or Planning Commission votes on a controversial special use permit, it's not unusual for large crowds of residents to show up to speak their minds. But there are limits to what residents can say, and what council and commission members can consider. (Port City Daily photo / FIle)
When Wilmington’s City Council or Planning Commission votes on a controversial special use permit, it’s not unusual for large crowds of residents to show up to speak their minds. But there are limits to what residents can say, and what council and commission members can consider. (Port City Daily photo / FIle)

WILMINGTON — When it comes to land use and development, not everything is black and white, there are often times where possible land uses have not been considered which is why the City of Wilmington uses special-use permits. It can be a useful tool for handling unusual or unique situations, but not everyone fully understands the process involved.

According to the City of Wilmington’s Land Development Code, “Special use permits add flexibility to the zoning ordinance. Subject to high standards of planning and design, certain property uses may be allowed in several districts where these uses would not otherwise be acceptable. By means of controls exercised through the special use permit procedures, property uses which would otherwise be undesirable in certain districts can be developed to minimize any adverse effects they might have on surrounding properties.”

Unlike rezoning requests, special-use permit requests are considered quasi-judicial in nature, effectively turning city hall into a courtroom. Anyone wishing to speak in favor or against the request must be sworn in and can only speak on four different points, and must provide “substantial evidence.”

“All persons shall offer only competent material and substantial evidence in any presentation to the council. Competency shall be determined by the council in its decision,” according to the LDC.

This means anyone opposed to a project and claims permitting it would hurt property values of abutting properties would need proof of this, not just an opinion. For example: residents cannot complain that a project will generate “a lot of traffic” — instead, for their comments to be considered, they must refer to a traffic analysis done by a licensed engineer.

Residents who oppose a project are also limited to what they can speak about; those opposing a project must limit their evidence-backed comments to the four points that a SUP applicant (i.e. a developer or property owner) must prove.

Those four points are:

  1. That the use will not materially endanger the public health or safety if located where proposed and developed according to the plan as submitted and approved by the issuance of the special use permit
  2. That the use meets all required conditions and specifications
  3. That the use will not substantially injure the value of adjoining or abutting property, or that the use is a public necessity
  4. That the location and character of the use if developed according to the plan as submitted and approved will be in harmony with the area in which it is to be located and in general conformity with the city’s comprehensive plan, the CAMA plan, and adopted special area plans (i.e., corridor plans, neighborhood plans, Wilmington Vision 2020: A Waterfront Downtown Plan)

Because of these strict requirements, residents who have wanted to speak in opposition to certain requests have been limited in their ability to do so. It is up to the opposition to provide evidence of standing and limit discussion to concrete evidence relating to the four points above.

Even tighter restrictions apply to City Council and Planning Commission members when hearing SUP issues. Members aren’t allowed to discuss or research the issue beforehand; as Councilman Kevin O’Grady told Port City Daily, he was once cautioned by staff after attempting to “Google the location” of a permit location prior to a hearing.

On more than one occasion, council and commission members have expressed frustration that they cannot take into account residents’ more general comments, noting that the SUP process narrowly constrains what they can take into account when making their decisions.

A proposed change in the process

Recently, the Wilmington Planning Commission voted to continue a request that would remove the board from the special-use process. Current regulations require the commission to first hear from the applicant and vote on approving or denying the request prior to City Council making a final decision.

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

Despite it being a requirement in the city code that the Planning Commission make a formal recommendation to City Council, according to the request, the council cannot take the recommendation into account when casting their votes.


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