Some land uses have a particular impact on the surrounding area that cannot be adequately controlled by general regulations. Their establishment shall be allowed only after review and approval of plans and shall be called special uses. Per G.S. 160D-102, special uses, because of special site or design requirements, operating characteristics, or potential adverse effects on surrounding property and the neighborhood, shall be permitted only upon approval by the board of aldermen in accordance with the standards and findings as set forth in section 42-90.

(Code 1978, § 12.91; Code 1995, § 156.050; Ord. of 1-10-1972; Ord. No. 2007-5, § 156.050, 11-26-2007; Ord. No. (2021)1, 6-28-2021)

(a)

Per G.S. 160D-705, in granting a special use permit, the board of aldermen may stipulate, such conditions and restrictions as agreed upon by the applicant. Reasonable and appropriate conditions and safeguards may be imposed upon the special use permits. Where appropriate, such conditions may include requirements that street and utility rights-of-way be dedicated to the public and that provision be made for recreational space and facilities. Conditions and safeguards imposed under this subsection shall not include requirements for which the town does not have authority under statute to regulate nor requirements for which the courts have held to be unenforceable if imposed directly by the town, including, without limitation, taxes, impact fees, building design elements within the scope of G.S. 160D-702(b), driveway-related improvements in excess of those allowed in G.S. 136-18(29) and G.S. 160A-307, or other unauthorized limitations on the development or use of land.

(b)

In granting a special use permit, the board of aldermen shall hold an evidentiary public hearing and make a quasi-judicial decision on the special use permit application.

(c)

Notice of evidentiary hearings conducted pursuant to this section shall be mailed to the person or entity whose appeal, application, or request is the subject of the hearing; to the owner of the property that is the subject of the hearing if the owner did not initiate the hearing; to the owners of all parcels of land abutting the parcel of land that is the subject of the hearing; and to any other persons entitled to receive notice. In the absence of evidence to the contrary, the town may rely on the county tax listing to determine owners of property entitled to mailed notice. The notice must be deposited in the mail at least 10 days, but not more than 25 days, prior to the date of the hearing. Within that same time period, the town shall also prominently post a notice of the hearing on the site that is the subject of the hearing or on an adjacent street or highway right-of-way. The board of aldermen may continue an evidentiary hearing that has been convened without further advertisement. If an evidentiary hearing is set for a given date and a quorum of the board is not then present, the hearing shall be continued until the next regular board meeting without further advertisement.

(d)

Members of the board of aldermen exercising quasi-judicial functions pursuant to this section shall not participate in or vote on any quasi-judicial matter in a manner that would violate affected persons' constitutional rights to an impartial decision maker. Impermissible violations of due process include, but are not limited to, a member having a fixed opinion prior to hearing the matter that is not susceptible to change, undisclosed ex parte communications, a close familial, business, or other associational relationship with an affected person, or a financial interest in the outcome of the matter.

(e)

Prior to granting the special use permit, the board of aldermen shall give due consideration to the following statements and make findings that they have been fulfilled:

(1)

The location, site, design, and operating characteristics of the proposed development or use will be compatible with and will not adversely affect the livability or appropriate development of abutting properties and surrounding neighborhood;

(2)

The proposed development or land use is in harmony in scale, bulk, coverage, function, and density with this ordinance;

(3)

The development or land use has adequate public facilities and utilities;

(4)

The development or land use will mitigate the generation of traffic created and the increased capacity of surrounding streets; and

(5)

The development or land use meets the purpose and intent of the adopted comprehensive plan(s) for the physical development of the zoning district to which it is located and the protection of the environment is provided.

Developers are encouraged to discuss their special use plans with the administrative officer before submission. The administrative officer shall assist the developer upon request by reviewing special use plans to ensure that the technical requirements of this section are met before submission to the board of aldermen.

(Code 1978, § 12.92; Code 1995, § 156.051; Ord. of 1-10-1972; Ord. No. 2007-5, § 156.051, 11-26-2007; Ord. No. (2021)1, 6-28-2021)

(a)

Generally. It is recognized that there are some uses which, because of their very nature, are recognized as having serious objectionable operational characteristics, particularly when several of these are concentrated, under certain circumstances thereby having a deleterious effect upon adjacent areas. Special regulation of these uses is necessary to ensure that these adverse effects will not contribute to the blighting or downgrading of the surrounding neighborhood. These special regulations are itemized in this section. The primary control or regulation is for the purpose of preventing a concentration of these uses in any one area; for example, not more than one such use within 1,000 feet of each other which would create such adverse effects.

(b)

Radio and television transmitting and receiving stations and towers. All such facilities, when permitted as a special use, shall provide at least one foot of side, rear and front yard for every two feet of tower and/or building height.

(c)

Day care facilities. All day care facilities shall comply with the following:

(1)

There shall be sufficient paved driveway to accommodate at least two motor vehicles at one time for the purpose of loading and unloading passengers in addition to any required off-street parking for the owner/operator and employee(s);

(2)

All children's outside play areas shall be enclosed with at least a four-foot high fence and located only within the side and/or rear yards, provided the yards are not adjacent to a street. The horizontal/vertical spacing in the fence shall be a maximum of four inches and at a minimum the fence must comply with the guard opening limitations for spacing established in the N.C. BLDG CODE § R312.2 (2006 or more restrictive subsequent amendment);

(3)

Provide a minimum of two off-street parking spaces, plus one off-street parking space for each employee;

(4)

Day care facilities allowed in zoning districts other than residential districts shall comply with the district dimensional requirements of the zoning district; and

(5)

For day care facilities located within any residential zoning district, the following provisions must be complied with:

a.

Minimum lot size of 10,000 square feet land area;

b.

The required minimum setbacks shall be as follows:

1.

Front yard: 30 feet from any public or private street;

2.

Rear yard: 35 feet;

3.

Side yard: 20 feet; and

4.

Corner lots shall provide a minimum of 30 feet from both (all) streets.

c.

Subject property must abut and have direct access to a minor collector or minor arterial or higher street classification, as identified on the functional classification map; and

d.

All outside pets shall be enclosed in a separately fenced area.

(d)

Sexually oriented businesses.

(1)

Generally. Sexually oriented businesses are some of the uses which, because of their very nature, may have serious objectionable characteristics, particularly when several of them are concentrated in one area, thereby having a deleterious effect upon adjacent areas, or when the uses are proposed to be located in or near sensitive areas or land uses. Special regulation of sexually oriented businesses is necessary to ensure that these adverse effects will not contribute to the blighting or downgrading of the surrounding neighborhood. These special regulations and applicable criteria are contained in this section. Sexually oriented businesses shall be allowed only in the C-3 Heavy Commercial District, subject to the following:

a.

Sexually oriented businesses shall not be located within 1,000 feet of another sexually oriented business. The measurement shall be taken from the exterior walls of the buildings containing such regulated use.

b.

No sexually oriented business shall be located within 500 feet of any area zoned for residential use or from the property line of residential units, religious worship activity, nursery school, day care facility, any recreation and amusement not regulated herein, and any public or private school regardless of the zoning district, and shall be measured from the property lines containing such regulated use.

c.

Buffering complying with the standards of section 42-191(7) shall be placed around the entire perimeter, including road frontage, for all sexually oriented businesses.

d.

No nude or seminude service or entertainment of any kind shall be allowed outside the building of such use.

(2)

Adult activities.

a.

Definitions. For the purpose of this subsection, the following definitions shall apply unless the context clearly indicates or requires a different meaning:

Adult bookstore means an establishment having a substantial or significant portion of its stock in trade, books, magazines and other periodicals which are distinguished or characterized by their emphasis on matter depicting, describing or relating to specified sexual activities or specified anatomical area, or an establishment with a segment or section devoted to the sale or display of such material.

Adult motels and hotels means a place where motion pictures not previously submitted to or not rated by the Motion Picture Association of America are shown in rooms designed primarily for lodging, which the motion pictures have as the dominant or primary theme matters depicting, describing, or relating to specified sexual activities.

Adult motion picture theater means an enclosed building used for presenting material distinguished or characterized by an emphasis on matter depicting, describing or relating to specified sexual activities or specified anatomical areas for observation by patrons therein.

Specified anatomical areas means any of the following:

(1)

Less than completely and opaquely covered human genitals, pubic region, buttock and female breast below a point immediately above the top of the areola; and

(2)

Human male genitals in a discernibly turgid state, even if completely and opaquely covered.

Specified sexual activities means any of the following:

(1)

Human genitals in a state of sexual stimulation or arousal;

(2)

Acts of human masturbation, sexual intercourse or sodomy; or

(3)

Fondling or other erotic touching of human genitals, pubic region, buttock or female breast.

b.

Uses. The following uses are permitted under C-3 as special use and subject to the provisions of this section:

1.

Adult bookstores;

2.

Adult motion picture theater housed in a permanent indoor structure;

3.

Clubs and other places of entertainment operated as a commercial enterprise providing nude or semi-nude entertainment such as "topless" dancing;

4.

Eating and drinking establishments including drive-in curb service providing nude or semi-nude entertainment such as "topless" dancing;

5.

Any physical culture establishment, masseur, massage parlor, health salon or club not otherwise permitted by section 42-63; and

6.

Adult motels and hotels.

c.

Location of uses.

1.

No use permitted under this section may be located within 1,000 feet of another use permitted under this subsection which will be measured from the exterior walls of the buildings containing such regulated use.

2.

No use permitted under this subsection may be within 500 feet of any area zoned for residential use which will be measured from the exterior walls of the buildings containing such regulated use.

(3)

Expiration due to unused permit, cessation of use. Any (specific) special use permit granted becomes null and void if not exercised within the time specified in such approvals or, if no date is specified, within one year from the date of such approvals. Any (specific) special use permit granted is no longer valid when the use is discontinued or ceases for a continuous period of six months, unless the applicant/owner can show that such discontinuation or cessation occurred due to circumstances inevitably outside of his direct control.

(e)

Open-air farmer's markets. The following specific provisions are minimum provisions and shall apply to approved open-air farmers' markets. The applicant is the responsible party for continued compliance upon issuance of a special use permit by the board of aldermen. The contents of this section shall not be construed as to limit the board's authority to impose any additional restrictions or conditions necessary for protection of the public health, general welfare, and interest.

(1)

The applicant shall be a local producer of the products offered for sale. For purposes of this section, the term "local" shall mean any resident of the town or the immediate surrounding area. The applicant and/or their immediate family members shall also be the vendors.

(2)

The market shall be set up on self-owned property or if agreed to by a property owner other than the vendor and if proof of the property owner's consent is submitted with the application, the market may be set up on another's property. The establishment of proof can be accomplished by submission of either a notarized statement signed by all current tax record owners of the property signifying their consent or a copy of a properly recorded lease agreement signed by the parties involved.

(3)

Sales shall be limited to seasonal or perishable produce, products made largely or entirely from such produce, and may include flowers, plants or other self-made crafts. No resale of produce or items shall be permitted.

(4)

No fresh meat, poultry or fish shall be sold.

(5)

Any scales used in conjunction with the items offered for sale shall be certified by the state department of agriculture and must be approved as "Legal for Trade."

(6)

Buffering and landscaping shall be provided and maintained in accordance with the provisions of section 42-191(7) and article IX of this chapter. The market shall not be operated within any landscaping area otherwise required by this subsection.

(7)

On-site trash receptacles shall be provided and shall comply at all times with chapter 40, article II (set forth in section 40-76(j)), the town's solid waste management provisions, which states that all trash receptacle areas that include dumpsters or three or more trash receptacles shall be located on concrete slabs, or other suitable stable and packed material as approved by the town engineer, and be fenced with a solid fence on at least three sides to shield from public view. All receptacle areas must include a gate that can be locked. All fencing shall be plumb with the ground and extend at least one foot in height above the top of the receptacles.

(8)

Hours of operations shall be limited to the hours between dawn to dusk. The proposed hours and days of operations shall be stated in the application.

(9)

No accessory structure, other than for secure storage, shall be permitted on a permanent basis. Any tents or shelters used in conjunction with the market shall be in compliance with all fire regulations. All setups and displays must be removed by the end of the designated sale day. No overnight storage of vehicles, tables, storage containers, display items or support structures shall be permitted. The applicant shall be responsible to insure all debris is removed at the end of each day.

(10)

Traffic generated by the market shall not impede the normal flow of traffic on any public or private right-of-way.

(11)

A detailed site plan shall be submitted with the application, complying with the pertinent provisions of section 42-167 and shall also indicate compliance with the following standards:

a.

This use is exempt from the district provisions of section 42-192; however, no portion of the market shall be located closer than 15 feet to any right-of-way line and/or property line, and shall not be located closer than ten feet to an internal drive;

b.

Off-street paved parking shall be provided at the rate of one space per 200 square feet of display area or, a minimum five spaces, whichever is greater. The parking spaces shall be permanently maintained by the applicant, arranged in such a manner so that ingress and egress to/from the spaces shall be by forward motion of the vehicle and meet all requirements of section 42-260; and

c.

Generally the provisions of section 42-191 (yard regulations) shall not apply; however, the provisions of sections 42-191(4), Corner visibility, and 42-191(8), Location of accessory buildings in any district, shall be met.

(12)

One on-site advertising sign shall be permitted provided that the sign area and location comply with the sign regulations for the district if the market is located in the C-1P, C(P), and C-3 zoning districts; signage for markets approved in the RR zoning district shall comply with the sign regulations for the C-1 zoning district. Prices must be posted for all items sold and individual pricing signs shall not exceed four square feet in area.

(13)

The site shall provide access to restroom facilities that comply with all provisions of the N.C. State Building Code.

(14)

The provisions of this section shall not be construed to apply to any bona fide farm operation exempt from this regulation under section 42-5.

(15)

All applicable federal, state, and local regulations shall be complied with, including the requirement for posting of the state sales tax license.

(f)

Mixed use building.

(1)

Mixed use buildings are allowed uses in the O & I Office & Institutional, C-1 Local Business, CB Central Business, C(P) Planned Commercial and C-3 Heavy Commercial Districts;

(2)

Residential uses within a mixed use building shall not exceed 40 percent of the total floor area, with a minimum of 60 percent of the floor area of all structures devoted to the nonresidential uses as allowed within the specific zoning district of the property;

(3)

The facade of the buildings approved for mixed use in a nonresidential district shall be of a commercial design;

(4)

There shall be no ancillary, accessory or incidental residential use of the property outside the mixed use building;

(5)

All "for sale" residential units are subject to the condominium development provisions of section 36-73;

(6)

The development must be served by public or community water and sewer;

(7)

The subject property must have direct vehicular access to a paved public right-of-way;

(8)

Off-street parking shall be provided in accordance with article X of this chapter for the nonresidential use, and 1½ spaces for each residential unit. Shared parking shall be encouraged and permitted when it can be substantiated that the hours of operation of the nonresidential use are restricted to daylight hours and will not adversely affect the residential parking needs;

(9)

The minimum lot area per residential unit shall be 1,000 square feet, not including the lot area utilized by the nonresidential use. The site plan must provide the calculations indicating compliance with this provision;

(10)

Sidewalks are required in accordance with the standards of section 36-107(f); and

(11)

A fee in lieu of dedication for on-site parks, recreation and open space is mandatory. This fee is to be calculated based on the tax assessed raw land value of the equivalent land area required for parks, recreation and open space under the provisions of section 36-107(h).

(Code 1978, § 12.93; Code 1995, § 156.052; Ord. of 1-10-1972; Ord. of 5-13-1991; Ord. of 1-10-1994; Ord. of 10-10-1994; Ord. of 9-22-1997; Ord. of 11-25-2002(01), § 156.052(E); Ord. of 3-13-2006, § 156.052(E); Ord. No. 2007-5, § 156.052, 11-26-2007; Ord. No. 2009-19, § 156.052, 12-14-2009; Ord. No. (2015)3, § 1, 2-23-2015; Ord. No. (2021)1, 6-28-2021)