FEBRUARY 11 – GLENDALE, AZ | FOR IMMEDIATE RELEASE
Rihanna, Barbadian chanteuse and founder of Fenty, brings a ‘jam-packed’ show to the deserts of Arizona on Sunday, February 12th. Pre-show festivities, including an all-male sportsball revue and release of a captive eagle, will kickoff at 6PM. Also programmed is your annual dose of cognitive dissonance, as the nation collectively busts a gut laughing at a billion dollars worth of beer and Doritos commercials, while we simultaneously gut budgets across the country for education, healthcare, and housing. God Bless ‘Merica. But alas, we digress.
You’re obviously here because you have questions about TBB’s 2023 land use SUPerstar – the Special Use Permit (SUP). And, boy do we have answers!
Chapel Hill’s Land Use Management Ordinance (LUMO) regulates and governs the ways people can use their land (planners call these “uses“). In the LUMO, each of the Town’s zoning districts (i.e., Residential-1/R-1) includes a list or table summarizing the types of permitted (allowed) uses (or activities). Zoning district uses may be permitted “by right.” This means a property owner does not need special permission to use their land in that manner, as long as they comply with the all the standards for that zoning district in the LUMO. Sometimes, the property owner might be required to apply for a Zoning Compliance Permit (ZCP), demonstrating that they are meeting standards, but it’s a relatively simple process. Uses “permitted by right” are (generally speaking) those that “fit” with the district’s other uses and aren’t likely to generate any impacts or conditions interfering with other peoples’ rights to use and enjoy their properties. If you’re looking for a deeper dive, Section 3.7 of the LUMO contains use permissions for all districts outside of Blue Hill district; Blue Hill uses can be found LUMO Section 3.11.3.4.
A second type of use is called a “special use.” These are activities or uses that could be appropriate in the zoning district but also have the potential to generate adverse impacts. Because of these potential impacts, the proposed use needs to be discussed, reviewed, and assessed before permission is granted to use the property in that way. Permission is sought and approved (or denied) through a “special use permit” or “SUP.” Note that “SUP” is typically pronounced by saying each letter and not like one would say “Sup Dogs.” Although maybe they’re big into planning? You never know…
An example is helpful to understand the difference between a permitted or by-right use and a special use. Chapel Hill’s LUMO includes a use called, “single-family detached dwelling.” If you own property that is zoned R-1, R-2, R-4 (residential districts), CC (a commercial district), O-1 or O-2 (office districts), you can build a single-family detached home without any special permission from the Town. In fact, this use is permitted by-right in most of the Town’s zoning districts.
Now, say you want to build an independent senior living facility on the same property. If, as described above, your property is zoned CC, O-1, or O-2 you do not need special permission for that use (independent senior living facility) as long as you comply with the zoning district’s other standards and regulations. But, if your property is zoned in one of the residential categories (R-1, R-2, or R-4), a special use permit (SUP) must be issued by the Town before you can build your facility. So, how does one acquire an SUP? Great question.
special use: “uses that, because of their inherent nature, extent, and external effects, require special care in the control of their location, design, and methods of operation in order to ensure protection of the public health, safety, and welfare” (Chapel Hill LUMO)
If you need an SUP, you must first submit an application and the required supporting materials and evidence. Town staff will review your application and materials and provide a recommendation to the Town Council. Town Council then considers your application and either approves or denies the SUP. Because an SUP permit is considered by the State of North Carolina to be a quasi-judicial proceeding (meaning Council is essentially in the role of a court when reviewing SUPs and, therefore, must follow a strict set of policies and procedures). Council can only consider evidence that would be admissible in court. When deciding on an SUP, Council may not consider any evidence outside of the quasi-judicial proceeding, limiting the public’s ability to participate. The SUP applicant, the Town, and witnesses with a “special interest” in the property are the only parties allowed to give evidence and each must swear an oath before testifying.
Additionally, Town Council may only consider four discrete factors when deciding on an SUP. This is different than other types of development review where council has full discretion to act (i.e., rezoning requests, when property owners request a different zoning designation for land). This essentially means that, if a property owner requests a rezoning, Council can approve or deny it, for just about any reason. In contrast, Council must, as in they are legally required to, approve any SUP meeting the four standards. If a special use meets these standards and the Town denies an SUP, the Town risks being sued. The four standards for approving an SUP include:
(1) That the use or development is located, designed, and proposed to be operated so as to maintain or promote the public health, safety, and general welfare;
(2) That the use or development complies with all required regulations and standards of this chapter, including all applicable provisions of articles 3 and 5, the applicable specific standards contained in the supplemental use regulations (article 6), and with all other applicable regulations;
(3) That the use or development is located, designed, and proposed to be operated so as to maintain or enhance the value of contiguous property, or that the use or development is a public necessity; and
(4) That the use or development conforms with the general plans for the physical development of the town as embodied in this appendix and in the comprehensive plan.
A recent example from Chapel Hill illustrate the SUP process. In November 2022, Town Council approved an SUP for a Harris Teeter gas station at Chapel Hill North despite the fact that there’s an existing gas station about 300′ from the proposed new station and no Councilmembers appeared enthusiastic about the request. Because of limits on Council’s discretion to approve or deny SUPs, Town Council had to approve the permit, albeit reluctantly, or risk being sued by Harris Teeter.
The quasi-judicial SUP proceeding also precluded full public participation. While an adjacent property owner could testify about the potential impacts of a gas station (ex. lights from the gas pumps shining onto your property), a concerned citizen without a “direct interest” could not testify about potential leaks from underground tanks or the environmental impact of auto dependence.
Currently, there are only a few projects in Chapel Hill using special use permits , including Carraway Village on Eubanks Road and the transformation of University Mall into UPLACE. Related, the Dunkin’ on Franklin Street is seeking a modification to a previously approved SUP to add a drive-through (a modification must be requested and approved/denied by Council if an SUP grantee wants to make substantial changes to a building/property that was granted an SUP).
Many communities in North Carolina are moving away from SUPs because of limits on public participation and recent changes in state law. Instead, a different development approval process called “conditional zoning” is more commonly used. But this is SUPer Sunday Bowl 2023, not Conditional Zoning Bowl, so you’re going to have to investigate that one on your own. Or refer to this detailed – and hilarious – introduction to zoning.
Oh, and don’t forget to catch Rihanna (and the other stuff) at 6:00 PM February 12, 2023, on Fox!