Inside Wilmington’s city limits, there are now just three types of land uses that require a special use permit: a residential group home, wind energy uses and a zoo.
That’s down from 22 uses, including marinas, libraries, colleges and day cares, that previously required a special use permit from city leaders. In August, the Wilmington City Council approved reducing the number of uses that require a permit.
Brian Chambers, the city of Wilmington’s assistant planning director, said the move to narrow the uses stemmed from what he called an “arduous” public hearing last year for a special use permit on the site of the former Holly Tree Racquet & Swim Club.
“Lots of residents came out to speak, and the meeting was very difficult to get through,” Chambers said.
Special use permits require a quasi-judicial process in which local government leaders act as judges and may consider only factual evidence, not opinions, from qualified experts or those with standing.
“You’re forcing the public to be an expert witness, and if they aren’t an expert witness, they now have to go hire their own attorney, their own engineer, their own appraiser, to combat the evidence that whoever is asking for a special use permit also provides,” Chambers said. “It’s a very difficult process for the public to take part in.”
Over the past year, special use permits have been a topic of conversation among local leaders in Wilmington and New Hanover County. Both entities have moved forward with adjustments to uses that require special use permits.
Special use permits denied by county leaders earlier this year have also become the center of a lawsuit filed by an affiliate of Greensboro-based developer The Carroll Companies.
New Hanover County leaders denied two special use permits for the developer’s Bayshore Townhomes project in September. The proposed project was set to include 242 row-style dwelling units, 62 multifamily units and 1,800 square feet of commercial space.
The lawsuit, filed in October, alleges that county commissioners violated the developers’ due process rights during the quasi-judicial special use permit process by failing to remain impartial, disregarding the petitioners’ sworn testimony and failing to follow procedures outlined in the county’s Unified Development Ordinance (UDO).
New Hanover County officials declined declined to comment on the lawsuit, citing the pending litigation.
This isn’t the first time a developer has sued local government leaders over a special use permit. In 2021, the N.C. Court of Appeals overturned the 2019 denial of a special use permit for a mixed-use development near the intersection of Market Street and Lendire Road, sending the project back to New Hanover County leaders for reconsideration.
In an email to the Business Journal, New Hanover County Planning Director Rebekah Roth said that special use permits “remain an important tool in the New Hanover County ordinance, with over half of the uses outlined being allowed with a special use permit in at least one district.”
The New Hanover County Board of Commissioners took action this summer to change the process for additional dwelling allowances from a special use permit process to a legislative process, which is used for land rezonings.
Chambers said special use permits were initially introduced into local codes to allow for uses that might have broader or negative impacts on the areas where they’re located, especially in residential neighborhoods. That could mean impacts from traffic, building height and noise, among other factors.
He views the special use permit as a precursor to conditional zoning, which allows local leaders to attach conditions to a rezoning. Many uses that previously required a special use permit from the city are now allowed by right with conditions or require conditional rezoning, Chambers said.
Special use permits are issued infrequently by the city of Wilmington and New Hanover County. Chambers said the city has issued four since 2022, while the county has considered four special use permits and approved just one this year.
When the city rewrote its Land Development Code in 2021, Chambers said, planning staff made an effort to reduce the types of uses requiring a special use permit.
Following the Holly Tree Racquet club hearing, staff initially recommended eliminating special use permits from the city’s code. That drew concern from city leaders who didn’t want to see the permits eliminated. Chambers said leaving the measure in the code might benefit the city in the future.
“There’s going to be all sorts of new uses, so let’s leave it in the toolbox, and if we need to use it, we have it available to us,” he said. “We don’t have to rewrite the code and add it all back in.”
