Well, Isn't That a Special Use? Navigating the Special Use Permit Process in North Carolina

by Ward and Smith, P.A.

North Carolina statutes provide that cities and counties may issue special use permits in accordance with the principles, conditions, safeguards, and procedures specified in their zoning regulations.  A special use permit will allow an owner to develop its property for a use that could otherwise be considered harmful in some zoning districts, thus requiring a detailed review by the governing board to ensure such projects are carefully designed to minimize the impact on surrounding properties.  Some local governments even require a special use permit for all new development.

Special Use Permit Ordinances

A typical special use permit ordinance will require the local government's permit-issuing authority, before issuing the permit, to find that the developer has met the four standards approved by the North Carolina Court of Appeals in Kenan v. Board of Adjustment:

  • The proposed use does not materially endanger the public health or safety;
  • The proposed use meets all required conditions and specifications of the local government's ordinance;
  • The proposed use will not substantially injure the value of adjoining property, or the proposed use is a public necessity; and,
  • The proposed use will be in harmony with the area in which it is located and otherwise be in general conformity with the local government's comprehensive plan.

Some ordinances will also address the statutory right of the local government to impose "reasonable and appropriate conditions and safeguards" on the permit. 

The Special Use Permit Process

A special use permit ordinance may provide that the permit will be granted by the planning board, the board of adjustment, or the governing board.  After a developer submits an application for a special use permit, the application will generally go through a staff review (often "technical review committees") and may also go through a planning board review (provided the planning board is not the permit-issuing authority). 

North Carolina law requires a local government to notice a public hearing on a special use permit application at least 10 days, but not more than 25 days, prior to the public hearing.  Notices must be mailed to the applicant, the owner of the property if not the applicant, the owners of all property abutting the subject property, and anyone else entitled to receive notice under the zoning ordinance.

Quasi-judicial process

The law requires that special use permit hearings are quasi-judicial proceedings.  This essentially means that the permit-issuing authority must hold a proceeding that resembles a court proceeding, and must base its decision solely on competent evidence presented by the applicant and others who are entitled to participate in the public hearing.  Anyone providing testimony must be sworn in prior to testifying.  Additionally, members of the permit-issuing authority may not gather their own evidence prior to the hearing and members who have undisclosed ex parte communications regarding the matter or have a "fixed opinion prior to hearing the matter that is not susceptible to change" must recuse themselves.

Evidence to meet the standards

In order to present the evidence necessary to meet the standards, an experienced developer applying for a special use permit will bring a team of professionals to the hearing such as:

  • Engineers to discuss the design of the project and the safeguards to be put in place to assure the proposed use will not endanger the public health or safety;
  • An appraiser to provide evidence that the use is in harmony with the area in which it is to be located and will not substantially injure the value of adjoining properties; and,
  • An attorney to corral the other professionals and ensure the applicant complies with the requirements of the special use ordinance.

The standard that receives the most scrutiny tends to be the requirement that the project not substantially injure the value of adjoining properties.  Developers will attempt to meet this standard with the testimony of an appraiser, which generally goes as follows: 

My name is Joe Appraiser, and I am an MAI certified appraiser with 20 years' experience appraising similar projects in this area.  I have reviewed the project as proposed and it is in harmony with the property uses and architecture in the area and it will not reduce the values of properties in the area.  Here is my written report. 

If unchallenged (or challenged by incompetent evidence), such a presentation by the appraiser may be enough for the board to vote that the standard has been met. 

The problem with this "cookie cutter" appraiser testimony is that permit-issuing authorities may grow weary of seeing report after report issued by the same appraiser for different projects with only the names, addresses, and site plans changed.  Often, owners of residential properties located near the proposed project will "testify" at public hearings with vague, unsupported accusations of negative impact on their property values.  However, if property owners opposing the development do present testimony at the hearing from their own qualified appraisers showing that the owners' properties are worth more without the project than with it, a developer may regret not having its appraiser present more detailed testimony that addresses adjacent property values pre- and post-project. 

Reasonable and appropriate conditions

If allowed by the ordinance, a permit-issuing authority may require that "reasonable and appropriate conditions" be placed on the permit, so long as those conditions, in addition to being reasonable and appropriate, address the standards in the ordinance and are supported by evidence gathered at the hearing.  Such conditions may include interconnectivity requirements, construction of sidewalks, low-impact development storm water facilities, and other requirements that ensure a carefully designed project that meets both the requirements and the spirit of the ordinance.

A written decision

Like all quasi-judicial proceedings, the permit-issuing authority must reduce its decision to writing.  Boards generally solicit motions from its members on each of the standards (detailing why the board believes each standard has been met), followed by a separate board vote on whether or not each standard has been met.  A majority vote in favor of each standard means the permit is issued; a failed vote on any one standard means the permit is denied.  In either case, the board must reduce its decision to a writing reflecting the board's determination of the contested facts and deliver the same to the applicant within a reasonable time.

Appeal rights

Final decisions on special use permit applications may be appealed to superior court within thirty days after the written decision is delivered to the applicant.  An appeal may be filed by the applicant or owner (in the event the permit is denied, or if it feels unreasonable or inappropriate conditions have been attached to the permit), or by "any other person who will suffer special damages as the result of the decision."  Such "other person" may include an adjacent property owner who presented competent evidence that his property or its value would be injured by the proposed project but the permit was nonetheless issued.


Navigating the special use permit process may appear overwhelming to a property owner seeking to maximize the development of its property, but being familiar with the process will go a long way to ensure a successful development.  A developer willing to align itself with qualified professionals and to work with local government staff to present a development that will exist in harmony with adjacent property owners will find the process is not as tough as it may first appear.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Ward and Smith, P.A. | Attorney Advertising

Written by:

Ward and Smith, P.A.

Ward and Smith, P.A. on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.


JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.