Special Use Permits - Questions and Answers

By Robin L. Tatum

Cities and counties generally classify property within their jurisdictions into zoning districts. In these zoning districts, certain uses are allowed as a matter of right, but others are only allowed if certain conditions are met. In the latter case, a project may only proceed if a "Special Use Permit" or a "Conditional Use Permit" is obtained. These permits (collectively referenced herein as "SUPs") can be issued either by a local governing body (e.g., city council or county board of commissioners) or a local board of adjustment. If you are seeking to obtain an SUP, or you are advising a local board which is ruling on an SUP, certain questions are likely to arise. Having the correct response and planning accordingly will make it more likely you will lawfully achieve the result desired, and will be able to maintain that result through the appellate process. The attorneys at Poyner & Spruill are available to assist with all aspects of the SUP process. However, some of the more common questions and answers are set forth below.

An SUP is an authorization from a local government to use property for a specific purpose. Special uses are only allowed upon proof that certain conditions exist as set forth in the applicable zoning ordinance. Therefore, an SUP allows the use, but also protects the rights of neighbors and the community at large.

[Who Decides if an SUP Should be Granted?

The North Carolina General Statutes allow local governing boards or boards of adjustment to make SUP decisions. However, when any local board makes an SUP decision, it acts as a "board of adjustment" and must follow board of adjustment procedures. There is one exception: a 4/5 vote is required for a board of adjustment to grant or deny an SUP; however, the General Statutes expressly state that governing boards cannot require greater than a majority vote. See N.C. Gen. Stat. § 160A-381 (cities); § 153A-340 (counties). This presumably prevents applicants from having to obtain a disproportionately large number of votes from local governing boards with many members.

How are SUP Decisions Reached?

SUP decisions are "quasi-judicial" in nature. This means that the local board making the decision acts as the judge and jury and must follow all requirements for a fair trial. Applicants must be given the opportunity to present evidence, cross-examine witnesses and inspect documents. All witnesses must be sworn for their testimony to be considered. A decision should not be based solely on inadmissible evidence even though the Rules of Evidence and Civil Procedure do not specifically apply. Therefore, a decision rendered without regard to these particular safeguards is subject to attack. Additionally, if a board has enacted its own procedures, these must be followed as well.

What Must an Applicant Prove to be Granted an SUP?

Although ordinances differ from place to place, there are usually four general findings that must be made in order for an SUP to be issued. These can be summarized as follows: (1) the use will not materially endanger the public health, safety and welfare; (2) the use meets all required conditions and specifications in the zoning ordinance; (3) the use will not substantially injure the value of adjoining property (or that the use is a public necessity); and (4) the location and character of the use will be in harmony with the area in which it is to be located. In addition to these general factors, many ordinances also have more specific requirements which are tailored to the specific use, e.g., a quarry or hotel. Thus, a review of all ordinance requirements is necessary.

The applicant has the initial burden to show, by the production of substantial, competent and material evidence, that the required factors and standards in the ordinance have been met. If this is accomplished, "prima facie" the applicant is entitled to have the permit issued. However, if contrary evidence is produced by opponents of the SUP, the permit may be denied. If there are facts presented to the local board which would support either the granting or denying of the permit, the board's factual findings are binding on appellate courts upon review.

Finally, in making an SUP decision, only the factors in the ordinance may be considered; new requirements cannot be created to justify denial. However, the General Statutes and many local ordinances do allow the issuing body to impose additional "reasonable" conditions and safeguards on SUPs as appropriate.

Is a Written Decision Required?

As a general rule, written findings are required whenever an SUP is allowed or denied. This gives notice to the parties and the reviewing court as to why a decision was rendered. Such findings are required even if the applicable zoning ordinance does not address them.

Can an SUP Decision be Appealed?

Appeal of a decision to grant or deny an SUP is accomplished by filing a Petition for Writ of Certiorari with the Superior Court. The appeal must be filed within 30 days of the later of: 1) the date the decision is filed in the appropriate local office; or 2) the date the decision is received by the aggrieved party. Review is limited to the "record," which means the reviewing court cannot look at evidence that was not presented to the local board. Therefore, it is of the utmost importance to make sure that all evidence to support your desired outcome is a part of the record. From the local board standpoint, it is also imperative that the evidence supports the grant or denial of the SUP.

Who Can Appeal an SUP Decision?

Once an SUP decision is made, only "persons aggrieved" can seek an appeal. If the permit is denied, this necessarily includes the applicant. However, neighbors and adjoining property owners only have "standing" as aggrieved parties if they can establish special damages distinct from the rest of the community. This includes proof that the aggrieved person suffered a reduction in the value of their property.

What is the Standard of Review?

The Superior Court sits as an appellate court when reviewing SUP permits. The review is limited to: 1) reviewing the record for errors of law; 2) insuring the appropriate procedures were followed; 3) insuring due process was followed; 4) insuring the decision was supported by competent, material and substantial evidence in the record; and 5) insuring the decision was not arbitrary and capricious. The appellate courts are bound by this same limited standard. The "whole record" is considered in appellate review of SUP decisions.

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