Caldwell commissioners step out of special-use permit decisions

Caldwell County commissioners will no longer have the final say when certain development proposals come before the county.

The Board of Commissioners voted unanimously Monday to turn decisions on special-use permits over to the county Board of Adjustment, eliminating commissioners from a process that can involve potentially controversial projects such as cell towers and other land uses requiring additional review.

Until now, special-use permit applications went to the Planning Board for a recommendation before coming to commissioners for final approval or denial. Under the amended ordinance, the county planning director will review an application and make a recommendation directly to the Board of Adjustment, which will hold a hearing and make the final decision.

Commissioner Donnie Potter, attending his final meeting before leaving the board, questioned that consequence.

“How could these guys share their voices?” Potter asked, referring to commissioners.

“We’ve been split on — we’ve overrode them on like a Dollar General down Kings Creek one time. … I’m not so sure about this myself,” Commissioner Jeff Branch said.

Planning Director Mike Kirby said commissioners could retain authority if they wanted, but argued the current two-step process was redundant.

Special-use permits differ legally from rezonings and most other land-use decisions commissioners make. They are quasi-judicial proceedings, meaning the deciding board acts much like a court and must base its decision on competent evidence rather than public sentiment.

“A rezone is basically a legislative hearing,” Kirby said. “People can get up and say they don’t like it. You can listen to the constituents and say, ‘All right, they don’t like it, so we’re not going to approve it.’ Quasi-judicial hearings work different because everything’s based on evidence and fact.”

That distinction also limits how residents can participate.

Board of Adjustment meetings will remain open to the public on the fourth Tuesday of each month when needed. The meetings will be advertised, Kirby said, but only people with legal standing — generally the applicant, nearby property owners, the local government, and qualified witnesses — can offer evidence in the proceeding.

The following criteria will be reviewed by the Board of Adjustment for each request:

• The use does not materially endanger health or public safety
• The use meets all required standards and conditions
• The use will not be noxious or offensive by reason of vibration, noise, odor, dust, smoke or gas
• The use will be in harmony with the area in which it is located and in general conformity with the Caldwell County Comprehensive Plan

The adjustment board may impose reasonable and appropriate conditions it deems necessary to address impacts on such aspects as the surrounding property or traffic flow.

Commissioners also cannot privately urge Board of Adjustment members to approve or reject a project.

“You can’t,” county attorney Timothy “TJ” Rohr told commissioners. “You can’t say, ‘Oh, a voter called and said they don’t like this special-use permit, so I’m going to contact the Board of Adjustment and tell them to do that.’ You’re not allowed to do that. That’s like calling the judge.”

The same evidentiary restrictions already applied when commissioners decided special-use permits. Even under the old system, commissioners could not legally reject a project simply because residents opposed it.

If an applicant presented substantial evidence showing the proposal met the ordinance’s requirements, the county attorney said, the deciding board generally had to approve it.

“You’ve made the political decision that if they’ve presented that evidence, you have to approve it,” he said.

County planning staff said shifting the hearings to the Board of Adjustment should make the process more efficient by eliminating duplicative appearances and placing quasi-judicial cases before a board specializing in them. The county’s written proposal said the change is also intended to bring the ordinance into compliance with current state law.

Decisions by the Board of Adjustment can be appealed to Caldwell County Superior Court, something permit applicants have always been able to do.