§ 58-82. Town council decision.

If the town council should find, after conducting a public hearing, that the proposed conditional use permit and, where requested, zoning change should be granted, the town council may impose such additional reasonable and appropriate special conditions upon such conditional use permit, as it may deem necessary. In no instance shall any of these conditions be less restrictive than any requirements which would pertain to that particular development found in the same zoning district. Any conditions should relate to the relationship of the proposed use to surrounding property, proposed support facilities such as parking areas and driveways, pedestrian and vehicular circulation systems, screening and buffer areas, preservation of open space, the timing of development and other matters that the town council may find appropriate or the petitioner may propose. The conditions may include architectural review or control and sign controls. The screening provisions of this article shall be minimum screening requirements as a condition for awarding a conditional use permit; however, the town council may impose additional reasonable screening requirements as a condition for awarding a conditional use permit as the council considers necessary to protect the health, safety and welfare in accordance with the purpose and intent of this article. The petitioner will have a reasonable opportunity to consider and respond to any additional requirements prior to approval or denial by the town council. The town council shall give due regard to the intent and purpose of this section and ensure that the public safety and welfare will be secured and substantial justice done.

(1)

Burden of proof. The applicant has the burden of producing competent material and substantial evidence, tending to establish the existence of the facts and conditions which the appropriate section of this article requires for the issuance of the conditional use permit.

(2)

Voting. When deciding conditional use permits, the town council shall follow quasi-judicial procedures. No vote greater than a majority vote shall be required for the council to issue such permits. For the purposes of this section, vacant positions on the council and members who are disqualified from voting on a quasi-judicial matter shall not be considered members of the council for calculation of the requisite majority.

(3)

Findings to be made by town council for all conditional uses other than conservation subdivisions. The town council shall issue a conditional use permit only after having made each of the following findings:

a.

The use will not materially endanger the public health or safety if located where proposed and developed according to plan.

b.

The use meets all required conditions and specifications.

c.

The use will not substantially injure the value of adjoining or abutting property, or the use is a public necessity.

d.

The location and character of the use, if developed according to the plan as submitted and approved, will be in harmony with the area in which it is to be located and will be in general conformity with this chapter and the town's land development plan.

e.

Additional review criteria, as stated in this chapter, shall also be considered and addressed where required.

(4)

Findings to be made by town council for all conservation subdivisions. The town council shall issue a conditional use permit only after having made each of the following findings:

a.

The proposed conservation subdivision is density neutral (i.e., allows for the same number of lots as that which could be platted under applicable subdivision requirements with a minimum lot size of 40,000 square feet).

b.

If applicable, the proposed conservation subdivision provides conservation lands along public roadways to minimize visual impacts of the scenic view from the road.

c.

The proposed conservation subdivision minimizes the impact on the most sensitive forestland, floodplain, and wetland resources and wildlife habitat.

d.

The proposed conservation subdivision minimizes the impact on the most productive farmland soils.

e.

The proposed conservation subdivision is in harmony with the area in which it is to be located and will be in general conformity with this chapter, chapter 46, and the town land use plan.

f.

The use will not materially endanger the public health or safety if located where proposed.

g.

The use will not substantially injure the value of adjoining or abutting property.

(5)

Appeal of town council decision on conditional use permit. Every conditional use permit decision of the town council shall be subject to review by the superior court by proceedings in the nature of certiorari. Any petition for review by the superior court shall be filed with the appropriate clerk of superior court within 30 days after the decision of the town council is filed in the office of the town clerk, or after a written copy thereof is delivered to every aggrieved party who has filed a written request for such copy with the clerk at the time of the hearing of the case, whichever is later. The decision of the town council may be delivered to the aggrieved party either by personal service or by registered mail or certified mail return receipt requested.

(Ord. No. 87-04-08, § 6.4, 4-8-1987; Ord. No. O-2004-22, 8-9-2004; Ord. No. O-2006-01, 2-13-2006)