Two years after it was passed, New Hanover County’s special use permit ordinance continues to confuse.

In October 2011 the county commissioners approved a special use permit ordinance that replaced outdated, cumbersome 1969 legislation. The new ordinance was designed to specify what types of uses could locate by right in each zoning classification and what uses would need a special use permit. It also described the special use permitting process.

The ordinance was designed to be a much more useful tool for planners and for prospective businesses looking to locate or expand in the county.

Now the county is taking a second look at the 2011 ordinance, prompted by planners’ realization that portions of it are still unclear and by the urging of business groups who say that the ordinance’s lack of specificity is discouraging potential new business from coming to New Hanover County. 

Some others, such as local conservationists, don’t see the need for changes to the 2011 ordinance.

The county planning board took up the issue at its quarterly work session Nov. 1. Its planning staff presented a draft amendment developed to make the two-year-old ordinance clearer.

An informal coalition of local business groups, however, was not satisfied with what the county planners presented at the work session, and the county says its staff is continuing to revise the document. The proposed amendment was to have appeared on the planning board’s agenda early next month but could be held if planners don’t feel the revised draft is ready for review at that time.

A special use permit is required for any development that might be compatible with a zone in which it wishes to locate but which would require special consideration of its potential impacts on its surrounding area, said the county’s planning and zoning director Chris O’Keefe.

“Common things we would be looking at include the amount of parking available, traffic generation and noise,” O’Keefe said.

While some in the business community would like to see the 2011 ordinance scrapped or completely redrafted, the three groups – the Wilmington Chamber of Commerce, Wilmington Business Development and Coalition for Economic Advancement – agreed instead to approach the county and ask that the ordinance language and timetable be amended to make it clearer.

At particular issue, the groups say, are vague definitions of what kinds of businesses would need a special use permit, unclear documentation requirements for a permit application and an uncertain timetable for an applicant’s hearing before the commissioners. As currently written, they believe, the 2011 ordinance discourages businesses – especially manufacturers – from locating in New Hanover County.

“We’re seeing layoffs at Invista and at Corning. DAK Americas, right across the river, has closed. We’re hemorrhaging jobs; we can’t wait to make [the ordinance] perfect,” said Wilmington attorney Hal Kitchin, chairman of the Wilmington Chamber of Commerce’s board.

Some constituents, however, don’t see the need for more specific language in the ordinance.

“I don’t think the special use permit needs to be changed; they just adopted it two years ago,” said Kemp Burdette, executive director of Cape Fear River Watch, a conservation organization.

“I think what [the county] is asking for is spelled out. It allows them some flexibility. It would be very difficult for the county to say, in every single instance, ‘We need X, Y and Z information.’ Each case is different. And as I remember, there were timeline details in the [2011] special use permit.”

Having heard feedback from various sectors of the public since the 2011 ordinance was implemented, the county’s planning board and planning staff had also realized that portions of the ordinance were unclear and wanted to improve them, O’Keefe said.

County manager Chris Coudriet said the planning staff – under O’Keefe’s direction – has worked for several months on an amendment to the ordinance.

“We made good honest efforts to make the process much more clear but not to change the policy aspect,” Coudriet said. “In my opinion, what is modified should largely be informed by what’s happening with the [county’s comprehensive] planning process. But we have an administrative responsibility to make it an ordinance that is easy to use, understand and to be predictable in the process and the timeline.”

Both county planners and the business representatives emphasized that the current amendment effort was not prompted by Titan Cement, which is hoping to build a plant on the site of the former Ideal Cement Co. plant in Castle Hayne. That site is in a heavy industrial zone, but because of the nature of a new plant’s operations, it likely would need a special use permit.

If Titan applies for a special use permit, it will be required to meet the requirements of whatever ordinance is in force at the time, county officials said.

Planning and zoning manager Shawn Ralston said the team did an “in-depth analysis,” looking at similar ordinances used by a wide mix of other counties across the U.S.

“We found that, in the majority of counties, there was some level of higher review for heavy industry,” she said.

Kitchin described the business coalition’s efforts to help create a clearer ordinance.

“We [went] as a team to the county [planning] staff as well as some commissioners,” Kitchin said. “We told them what we think needs to be done. We submitted revisions we think ought to be made. In our meetings with county staff, we believed they understood where we were coming from: tweaks to make the ordinance more effective and less scary to the business community.”

“In most other counties, a business is told upfront ‘If you apply for a special use permit we’re going to need these specific things from you: a site plan, engineering drawings, etc.’ You know, once you submit that, you will have a hearing before the county commissioners within 60 days,” Kitchin said.

“The way ours works is that you submit an application, and the [planning] staff reviews it and sends you a request – ‘We want this kind of study, we need this other documentation.’ They can ask you for anything they want. Until you have replied to their request, you’re not on the hearing calendar. That’s a problem.”

After hearing the draft of the proposed update, however, Kitchin said he and other business representatives don’t think the draft amendment solves the perceived problems.

“Staff thought they were addressing our concerns. In fact, we think they didn’t do a very effective job of it,” he said.

Scott Sullivan, chairman of the Coalition for Economic Advancement and partner in Cameron Management, also said the draft amendment did not provide adequate clarity.

“On emissions, for instance, you have federal and state standards. According to the ordinance, who knows what the county would require? It’s another layer of rules and regulations,” he said.

“There’s really not that much difference between the two [versions of the ordinance]” Sullivan continued.

“We were invited to participate in the amendment, but our ideas were dismissed. If I were a business, [New Hanover County] would not be on my list. I would have no idea where [my application] is going.”

Kitchin said he likes the special use permit process Pender County enacted in June 2010 as part of its Unified Development Ordinance.

The ordinance has a broad list of uses permitted by right in its general industrial zone, said the county’s planning director Kyle Breuer. If an applicant company is required to get a special use permit, the ordinance lists 11 documents it must submit and commits that, once those documents are in the county’s hands, the board of commissioners will hold a public hearing within 60 days.

Kitchin said a change he did support in New Hanover County’s draft amendment was the creation by planners of a much more explicit Table of Uses tied to the county’s two industrial zones. The defined uses are based on NAICS (North American Industry Classification System) codes, which are industry standards for descriptions, Kitchin said.

“A manufacturer can look at the table to see if a special use permit is required,” he said. “That’s a good change.”

Ralston said that the revised Table of Uses details 71 kinds of businesses that are permitted by right in I-2, the heavy industry zone, and 19 kinds of businesses that would require a special use permit. In the county’s I-1 light industry zone, 46 uses are permitted by right and 27 uses require a special use permit, she said.

Since the planning board work session earlier this month, O’Keefe said, he and his staff are continuing to work on the draft.

“The planning board has made some suggestions. They want the process we’re asking people to go through to be made as clear as
possible,” he said.

Originally, the amendment was supposed to appear on the planning board’s Dec. 5 meeting agenda. O’Keefe said that if the draft is not finished in time, the board’s review of it could be delayed. Once the county’s planning board reviews the amendment, members could approve it and pass it along to the commissioners for action, or they could send it back to the planning staff for additional work.

“There is some concern, perhaps, that we did not make [the amendment] as clear as we thought we had,” Coudriet said.

“That’s not what we meant to do. We are in listening mode.”