Thursday, September 28, 2023

Deep dive: Rezonings, conditional rezonings, and special use permits, what’s the difference?

From special use permits to rezoning requests, the zoning process can be tricky for residents to navigate. (Port City Daily/Michael Praats)

WILMINGTON — In Wilmington and New Hanover County, residents often hear about things like rezonings, conditional use zonings, and special use permits. But understanding what each one of these zoning ordinances actually does and how developers and property owners (or even a local government) can use them can be confusing.

Development is a fact of life in Wilmington — at least for the time being — and as the relatively small county continues to fill with more and more residents and subsequent vehicles on the roads, emotions run high. Nearly every other week local governments are taking votes on requests from developers and individual property owners. In addition, there are other projects that still require some government approval, but not from elected officials in public hearings.

By-right development

To start with, let’s take a look at by-right development as it is often the easiest to understand. Each locality has its own zoning maps that city or county planners decided, perhaps decades prior, what they would like to see in the locations around their jurisdiction.

This delineation of different areas has shaped growth in the city and county, but as time goes on plans often change and plans that were drafted in the ’80s might not be suitable for 2020.

By-right development is as simple as it sounds, a piece of property is zoned for the use that someone wishes to use that land for and may do so by right. For instance, most people who buy a piece of land zoned for residential do not need the county’s or city’s elected officials to give permission to construct a new home on it (although there are still local construction standards and requirements for building and occupancy permits, etc.).

While by-right development happens on a daily basis, it is not typically the type of development neighbors are concerned with or even know about a lot of the time.

But on the flip side of things, if you were to purchase a piece of property zoned residential with the hopes of building a new office park it would not be so easy.


6561 Greenville Loop Road is back up to be rezoned after previously being rezoned by Wilmington's City Council last year. (Port City Daily photo/Johanna Ferebee)
6561 Greenville Loop Road is back up to be rezoned after previously being rezoned by Wilmington’s City Council last year. (Port City Daily photo/Johanna Ferebee)

The first tool a developer of the aforementioned (hypothetical) office park could use to build a new office park would be to request a rezoning.

In the City of Wilmington, “Zoning changes within the city limits may be initiated by City Council or by an interested party by petition. A public hearing with the Planning Commission is required for all zoning changes. The Planning Commission will then make a recommendation to the City Council for another public hearing and a final decision.”

There are two types of rezonings that typically are requested, a general rezoning, and conditional zoning.

A general or conventional rezoning is just that, a request to change a district from one to another.

This is essentially a legislative decision that can affect neighboring property values and decisionmakers have to be careful they do not fall into the habit of ‘spot zoning’ which is illegal. If the governing board decides to allow a rezoning, that property is then added into the new zoning district and will be for perpetuity.

This is one of the easiest requests to understand, but it can have dramatic consequences for the future. Since the applicant has every right to sell their land once it is rezoned, there is no guarantee as to what will be built on it. What’s more is the fact that while a quiet business park might go in, if the landowners decide to sell that property in the future, the new owners would be allowed to build whatever is permitted by right in that zoning district.

A public hearing must be held before a rezoning can be approved and anyone from the public may speak in favor or against a request. Elected officials who are deciding on the outcome are also able to meet with both residents and developers prior to any vote and discuss the project beforehand — something that other types of changes do not permit.

A rezoning request is heard by both the Planning Commission/Board as well as the elected decision-making body (for example Wilmington City Council or the New Hanover County Board of Commissioners).

Conditional Zoning

As Wilmington becomes more and more built out, conditional zoning requests are becoming more and more popular as seen here in upcoming Planning Commission applications. (Port City Daily/Courtesy City of Wilmington)

The next type of rezoning is conditional zoning, which is a bit more complex than a general rezoning but offers the elected board a much clearer look at what could be built. It also offers neighbors more of a ‘sure thing’ when compared to a general rezoning.

“In a conditional zoning district, the development and use of the property are subject to the rules, regulations, and conditions of a predetermined ordinance. Particular uses are established only in accordance with specific standards and conditions of each individual development project. Some land uses have significant impacts on the immediate surrounding area as well as the entire community which cannot be predetermined and controlled by general district standards,” according to the City of Wilmington.

These types of rezonings are legislative processes much like a general rezoning and that means anyone from the community can speak in favor or against the request. Elected and appointed leaders are not forbidden from educating themselves about proposed projects.

“Conditional zoning district decisions are a legislative process subject to judicial review using the same procedures and standard of review applicable to general use district zoning decisions. In considering any petition for a conditional zoning district, the council shall act in accordance with section 18-120, action by city council,” according to the City of Wilmington’s code of ordinances.

Conditions can be placed on projects requesting a conditional rezoning and this is a tool used to ensure new projects are going to be ‘good neighbors’ Wilmington Planning Director Glen Harbeck said.

Conditions that could be placed on requests could include types of uses that would be permitted, noise restrictions, lighting restrictions, and more. The city also requires applicants to hold a community meeting before submitting a CD request as well as submit a detailed site plan.

Conditional rezonings require much more work on the front end of a request than a general rezoning does, but they also help neighbors and elected officials know what exactly would be located next door. Again, both the Planning Commission hears these requests and makes a recommendation to City Council, and holds public meetings on the request.

Special use permits (SUP)

Perhaps one of the most frustrating requests for residents and sometimes even developers and elected officials is the special use permit or SUP. These are always quasi-judicial in nature and require very strict proceedings.

Both New Hanover County and Wilmington allow special use permits, but they go about them in different ways. Wilmington recently changed its own ordinances to remove the Planning Commission from hearing any SUP since state statute essentially says City Council or the Board of County Commissioners cannot hear anything on the request besides sworn testimony from those with ‘standing’ (thus, in effect, recommendations from a planning board or commission can’t be considered).

So what exactly is a SUP?

According to the City of Wilmington, “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 those uses would not otherwise be acceptable. Controls exercised through the special use permit procedures can be established to minimize any adverse effects on surrounding properties.”

What most people might not understand about the special use permit process is the fact that the governing body has already decided a proposed use is permissible within a particular zoning district — provided it meets certain conditions.

There are four general criteria a petitioner must prove to the decision-making body when requesting an SUP.

  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)

It is easy to get lost in the jargon, but it becomes a little more clear when looking at actual examples.

In the City of Wilmington’s Historic District-Residental area, there are five uses permitted by right (technically four now since number one is ‘reserved’).

They are:

  • (1) Reserved.
  • (2) Offices for use by historic foundation controlling or owning a historic structure.
  • (3) Recreational facilities, neighborhood.
  • (4) Single-family, detached.
  • (5) Duplex.

But these are not the only things that one could do with a piece of property zoned for HD-R. There are an additional 13 uses that are already permitted in the district provided the applicant gets a special use permit. These uses include things like community centers, daycares, libraries, triplexes, and more.

If a property owner in an HD-R area wanted to build a new community center they would be required to meet all of the criteria set forth in the SUP process.

But what could neighbors and residents do to oppose it?

Well, if they want to have a chance at actually convincing a board not to approve the request, they better come prepared. Typically, this means hiring a lawyer and/or other experts to testify on the four different topics. It is a time-consuming task for everyone involved and decisions on SUP requests have led to many lawsuits.

Ultimately, the City of Wilmington is working to update its Land Development Code to try and reduce the number of special use permits by adding additional conditional uses for different zoning districts. This would be beneficial to residents since it would allow anyone, with or without ‘standing’ to speak on any proposed changes.

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