5.01. General Application Processing.
A. Purpose and applicability.
1. To promote efficiency in processing applications for development, the city may from time to time create standardized development application forms and a consolidated list of required documents and information that must be provided prior to development approval.
2. Any applicant seeking approval of an application governed by this Section 155.5 must submit a complete application and comply with all requirements of this subsection.
B. Pre-application meeting. All applicants must attend an informal and nonbinding pre-application meeting prior to submitting an application, unless the requirement to attend a pre-application meeting is waived by the Zoning Administrator.
C. Application materials.
1. The city will furnish a standardized application form pertaining to each application type listed in this subsection.
2. The city will include with the application form a complete list of submittal requirements for the application to be considered complete. The list may include, but may not be limited to, the following submittal requirements:
a. List of persons, such as the property owner, an agent, or other entity who are required to sign or acknowledge the application;
b. Documents that constitute proof of ownership;
c. Property description and legal boundaries;
d. Requirements for plan scale and level of plan detail;
e. Information regarding property outside the boundaries of the subject property; and
f. Number and type of supporting technical documents and plans including:
(1) Legal surveys;
(2) Line drawings;
(3) Schematics;
(4) Architectural elevations;
(5) Topographical surveys;
(6) Hydrologic studies; and
(7) Other information directly related to determining whether the application complies with the requirements of this Zoning Ordinance.
3. The city may set fees associated with each application in a published fee schedule for the purpose of recovering costs related to reviewing the application except for Board of Zoning Adjustment Appeal (see subsection 6.01 below) which shall be $400.
4. The city may require a property owner who uses an agent, such as an engineer, architect, land planner, surveyor, or real estate professional, to submit an application to provide written and signed or acknowledged authorization for the agent to submit the application on the property owner's behalf.
D. Payment of indebtedness.
1. The applicant is responsible for providing proof that no delinquent taxes or fees are associated with property that is the subject of an application.
2. At any point in the application process, the Zoning Administrator may require that the applicant submit necessary documentation or proof that no taxes or fees are delinquent or outstanding on property that is the subject of an application. The Zoning Administrator may choose to accept an application without such documentation or proof if the applicant agrees to provide documentation or proof that no taxes or fees are owed prior to approval of the application.
E. Application determination of completeness.
1. No application shall be deemed complete and accepted for processing unless it is accompanied by all documents required by and prepared in accordance with the requirements of this subsection 5.01.
2. For a determination of completeness to be issued, an application must include the following:
a. A completed application form;
b. Every item, study, and document required by this subsection 5.01 for the type of application being submitted, or required for the plan for development;
c. Applicable fee(s), as specified in the fee schedule or any applicable ordinance; and
d. Evidence that the requirements of this Zoning Ordinance and other ordinances of the city are satisfied.
3. A determination of completeness shall not constitute a determination of compliance with the substantive requirements of this subsection 5.01.
4. Not later than the tenth business day after the date an application is submitted, the Zoning Administrator shall make a written determination whether the application constitutes a complete application.
a. The written determination shall include a determination of whether all information and documents required by this subsection 5.01 have been submitted.
b. The determination shall be provided to the applicant within such time period by electronic mail, United States Certified Mail, or regular mail at the address listed on the application, or by personal delivery to the applicant or the applicant's agent.
c. A determination that an application is incomplete shall specify the documents or other information needed to complete the application and shall state that the application will expire if the documents or other information is not submitted within 45 calendar days after the date the application was submitted.
5. An application filed on or after the effective date of this subsection 5.01 shall be deemed complete on the 11th business day after the application has been received, if the applicant has not otherwise been notified that the application is incomplete.
6. For purposes of this section, the applicant shall be deemed to have been notified if the city has mailed or delivered a copy of the determination as provided in subsection 5.01.E.4.
7. The processing of an application by any city employee prior to the time the application is determined to be complete shall not be binding on the city as the official date of acceptance of the application for filing. The date of filing shall be the date the Zoning Administrator determines that the application meets the requirements of this subsection 5.01.
8. The incompleteness of the application shall be grounds for denial regardless of whether a determination of incompleteness was provided to the applicant.
9. A development application shall expire on the 45th calendar day after the application is submitted to the Zoning Administrator for processing if the applicant fails to provide documents or other information necessary to meet the requirements of this subsection 5.01 as specified in the determination provided to the applicant. Upon expiration, the application will be returned to the applicant together with any accompanying documents. Thereafter, a new application for approval of the development application must be submitted. The Zoning Administrator may approve an extension of up to 30 days at the written request of the applicant.
10. No vested rights accrue solely from the filing of an application that has expired pursuant to this subsection 5.01, or from the filing of a complete or incomplete application that is subsequently denied.
F. Action by Zoning Administrator.
1. The date that the applicant furnishes a signed application to the Zoning Administrator or designee is considered the official date that application was received. The Zoning Administrator will process the application, including any required submittal dates and applicable requirements of this Zoning Ordinance in a manner consistent with Tex. Local Gov’t Code Chapter 245.
2. Once the Zoning Administrator accepts the application as a complete application, the Zoning Administrator or a designee will coordinate review of the submitted materials for conformance with the requirements of this Zoning Ordinance.
3. Following review of the application by all applicable departments, the Zoning Administrator or a designee will respond in writing to the applicant with a coordinated set of comments that list and describe any deficiencies the applicant must address in order for the application to be considered.
4. If approval by the Planning and Zoning Commission or City Council is required for an application to be approved, the Zoning Administrator will schedule the application on the next available agenda of the applicable body once all comments and deficiencies (see subsection 5.01.f.3) are addressed or as consistent with state law.
5.02. Dormant Projects and Vested Rights Petition.
A. Dormant projects.
1. This subsection 5.02 is adopted under Tex. Local Gov’t Code Chapter 245 to provide expiration dates for permits that lack an expiration date under applicable regulations. This subsection does not apply to a permit that is subject to an expiration date under the regulations applicable to the permit. For purposes of this subsection, a permit that is not subject to an expiration date is an "unexpired permit."
2. If an unexpired permit was approved prior to the effective date of this Zoning Ordinance, it shall expire five years after the date of its approval, unless the applicant submits evidence sufficient to show that progress towards completion of the project was made prior to expiration.
3. For purposes of this subsection, progress towards completion of a project includes any one of the following:
a. An application for a final plat or plan has been submitted and deemed complete;
b. A good-faith attempt has been made to file with the city or other regulatory agency an application for a permit necessary to begin or continue towards completion of the project;
c. Costs have been incurred for developing the project including, without limitation, costs associated with roadway, utility, and other infrastructure facilities designed to serve, in whole or in part, the project (but exclusive of land acquisition) in the aggregate amount of 5% of the most recent appraised market value of the real property on which the project is located;
d. Fiscal security has been posted with the city or other regulatory agency to ensure performance of an obligation required by that regulatory agency; or
e. Utility connection fees or impact fees for the project have been paid and account is in good standing.
4. If the first permit in a series of permits for a project expires based on dormancy of the project, then that permit cannot form the basis of a vested rights petition.
B. Vested rights.
1. Purpose and applicability.
a. This subsection 5.02 establishes requirements for determining whether a project is entitled to vested rights under Tex. Local Gov’t Code Chapter 245 or § 43.002. To the extent a project is entitled to vested rights, as determined under this subsection, a permit necessary to initiate, continue, or complete the project may be exempt from some requirements of this Zoning Ordinance.
b. The purpose of this subsection 5.02 is to:
(1) Establish a clear and consistent process for evaluating vested rights claims;
(2) Ensure that vested rights determinations are based on accurate and complete information, including the nature and scope of the original project for which vested rights are asserted, as well as any actual development that has occurred over time; and
(3) Recognize legitimate claims of vested rights under state law, while ensuring that new development complies to the greatest extent possible with current regulations.
2. Vested rights petition required.
a. A petition for vested rights shall be submitted by a landowner or a landowner's agent in order to request that an application for a permit be reviewed under ordinances, regulations, or rules other than those in effect on the date the application is filed.
b. The petition shall conform to the requirements of subsection 5.02.B.3.
3. Contents of vested rights petition. A petition for vested rights shall be submitted in a form approved by the Zoning Administrator and must include, at a minimum, the following information:
a. A permit application for development of the property, which must be submitted concurrent with the vested rights petition;
b. A conceptual development plan for the property, including the scope and intensity of development, as well as the nature of the land use. Construction-level detail shall not be required;
c. A summary of the basis on which the applicant claims vested rights;
d. The date on which the applicant claims that vested rights accrued;
e. Any permit or fair notice application that was submitted on the claimed date; and
f. A complete chronological history of the project for which vested rights are claimed, including:
(1) A list of permits for development of the property, along with supporting documents, that were issued or applied for after the date the application claims that vested rights accrued;
(2) A description of any permitted or unpermitted development that occurred on the property after the date the application claims that vested rights accrued;
(3) A description of existing development on the property, regardless of whether the development is permitted or unpermitted;
(4) A list of all annexations and zoning changes affecting the property, if any;
(5) Any covenants, conditions, or restrictions recorded in the deed records for the property; and
(6) Evidence of progress towards completion of the project (see subsection 5.02.A.3).
4. Completeness review for vested rights petition. A vested rights petition and associated permit are treated as a single application for purposes of completeness review and expiration.
5. Vested rights determination.
a. Not later than ten business days after acceptance of a complete vested rights petition, the Zoning Administrator shall review the petition under subsection 5.02.B.6 and render a determination consistent with the requirements of this subsection 5.02.
b. In acting on a petition, the Zoning Administrator may:
(1) Approve the petition and require the development applications necessary to initiate, continue, or complete the project to be reviewed in accordance with regulations in effect on the vesting date, except for those regulations exempt from vesting under state law;
(2) Deny the petition and require the development application associated with the project to be reviewed under current regulations of this Zoning Ordinance; or
(3) Approve the petition in part, according to the provisions of this subsection 5.02.
c. The Zoning Administrator may approve a petition in part if a project is entitled to some, but not all, of the rights asserted in the petition.
d. A vested rights determination may not waive or modify applicable regulations or provide relief not required by Tex. Local Gov’t Code Chapter 245 or § 43.002.
e. The Zoning Administrator shall provide a written determination to the applicant, which must state:
(1) Whether the petition is approved or denied, in whole or in part, and the basis for the decision;
(2) Findings of fact in support of the decision and information sufficient to identify the permit or fair notice application on which the petition is based; and
(3) If the petition is approved:
(a) A description of the project for which vested rights are recognized; and
(b) A vesting date.
6. Criteria for approval. A vested rights determination under this subsection does not affect the availability of a variance or other administrative remedy authorized in Section 155.6 Zoning Relief Procedures.
a. Chapter 245 petition.
(1) General standard. A permit application is entitled to development rights under Tex. Local Gov’t Code Chapter 245 if the permit is required to initiate, continue, or complete a project for which a prior application was submitted to the city. An application is not entitled to development rights if it is unrelated to or inconsistent with the original project, or if the original project has been completed, changed, or expired.
(2) Review criteria. In determining whether a petition meets the standard for approval under this subsection, the Zoning Administrator shall consider the following factors:
(a) The nature and extent of proposed development shown on the prior permit or other application that initiated the project for which vested rights are claimed;
(b) Whether the permit application submitted in connection with the vested rights petition is related to and consistent with the original project;
(c) The nature and extent of prior development of the property, including any permitting or construction activity that occurred subsequent to the vesting date requested by the applicant;
(d) Any prior vested rights determinations made for development of the property; and
(e) Whether the project has become dormant in accordance with the provisions of this subsection 5.02.
(3) The criteria in this subsection 5.02.B.6.a are intended to assist the Zoning Administrator in reviewing Tex. Local Gov’t Code Chapter 245 petitions, but do not limit the Zoning Administrator from considering other factors relevant to the determination of rights for a particular project.
b. Continuing use petition.
(1) General standard. A permit application is entitled to use rights under Tex. Local Gov’t Code § 43.002 to the extent that current regulations would prohibit:
(a) Continued use of the land in the manner in which it was being used on the date that annexation proceedings were instituted, if the use was legal at that time; or
(b) Beginning to use land in the manner that was planned before the 90th day before the effective date of the annexation if:
(i) One or more licenses, certificates, permits, approvals, or other forms of authorization by a governmental entity were required by law for the planned land use; and
(ii) A completed application for the initial authorization was filed with the governmental entity before the date the annexation proceedings were instituted.
(2) Review criteria.
(a) In determining whether a petition meets the standard for approval under this subsection , the Zoning Administrator shall consider the nature and extent of development that:
(i) Occurred on the property prior to initiation of annexation proceedings, including photographs or other evidence substantiating the use; or
(ii) Was proposed in one or more required applications that have been approved by a governmental entity.
(b) The criteria in subsection 5.02.B.6.b are intended to assist the Zoning Administrator in reviewing continuing use petitions, but do not limit the Zoning Administrator from considering other factors relevant to the determination of rights for a particular project.
7. Effect of vested rights determination. If the Zoning Administrator approves a vested rights petition, any permit required to initiate, continue, or complete the project shall be entitled to the development or continuing use rights recognized by the vested rights determination, unless the project becomes dormant under this subsection 5.02 or other applicable regulations.
8. Administrative guidelines.
a. The Zoning Administrator may adopt guidelines to assist in reviewing applications.
b. Guidelines adopted under this subsection 6.b for review of vested rights petitions may be used to help address common questions that arise in determining vested rights, including but not limited to:
(1) Whether a permit application is required to continue, complete, or initiate the project for which vested rights are claimed;
(2) Whether the project for which vested rights are claimed has been completed, changed, or expired; and
(3) Whether progress towards completion of a project has been made under subsection 5.02.A.3.
(4) Guidelines adopted under this subsection 5.02.B.8.b shall be posted on the city's website and made available to the public, but need not be adopted by administrative rule.
9. Appeal of vested rights determination.
(1) Right to appeal. An applicant may appeal the Zoning Administrator's decision on the application for vested rights determination to the City Council. An appeal under this subsection 9 stays acceptance by filing of any related development applications.
(2) Process. The application for appeal shall be made in writing to the City Secretary and shall state the basis for requesting the appeal. The appeal shall be made within ten business days of the date of the letter. The City Secretary shall schedule a hearing before the City Council within 30 calendar days of the date the appeal is submitted.
(3) Appeal of Council decision. A person dissatisfied with the decision of the City Council may appeal the decision to a court within Johnson County. The person shall file the appeal with the court within 30 days of the decision of the City Council. If no appeal is filed, the decision of the Council shall be final.
5.03. Alternative Compliance.
A. Purpose and applicability.
1. Purpose.
a. This subsection 5.03 establishes a provision for alternative compliance associated with the review and approval of a development, including improvements to existing structures or site features, as required in subsection 5.03.A.2.
b. The purpose of the alternative compliance process is to ensure that:
(1) A proposed development complies with the purpose and intent of this Zoning Ordinance as stated in subsection 1.02;
(2) A proposed project meets requirements that are appropriate for lots or sites and site-specific development challenges by applying a flexible approval procedure. A development may be interpreted under this subsection 5.03 to include redevelopment of lots or sites with existing improvements and encumbrances that may pose unique challenges to complying with the requirements of this Zoning Ordinance; and
(3) To allow for different standards that are in agreement with the city's comprehensive plan and that produce a substantially equivalent effect as the requirements of this Zoning Ordinance.
2. Applicability.
a. A request for alternative compliance, as specifically cited within this Zoning Ordinance, may be submitted for review and approval along with the site plan for a project, or along with the project's initial development application (as applicable for the project).
b. Alternative compliance requests must be clearly delineated graphically or in narrative format, as appropriate, on the site plan (or on the project's initial development application), including a reference to the specific section within this Zoning Ordinance that allows consideration of an alternative standard (see Table 20: Approval for Alternative Compliance).
c. The applicable zoning district standards for a project shall not be reduced or varied using the alternative compliance process unless the standard is specifically cited as qualifying for alternative compliance in this Zoning Ordinance.
d. Review and approval. Using the criteria listed in subsection 5.03.B, the Zoning Administrator will decide a request for alternative compliance submitted for the following:
Table 20: Approval for Alternative Compliance
Subsection Number | Subsection Title |
3.05 | Location and arrangement of buildings |
4.01.C | General landscaping requirements |
4.05.B.6 | Single-family detached residential and duplex design feature elements |
4.06.B.7 | Alternative compliance for design standards |
B. Alternative compliance evaluation criteria.
1. The requested alternative compliance standard is consistent with the recommendations and policies of the city's comprehensive plan.
2. The proposed alternative standard does not reduce a standard unless it is, to the greatest extent practical, equally mitigated or improved by increasing the standards of other requirements.
3. The proposed standard does not attempt to modify the land uses allowed in the zoning district in which the subject property is located, or to add a land use not normally allowed in the zoning district.
C. Alternative compliance appeal.
1. The applicant may appeal the Zoning Administrator's decision within 30 calendar days of the Zoning Administrator providing a written decision to the applicant.
2. The appeal will be placed on the next available agenda of the City Council. The City Council may either affirm, reverse, or modify the Zoning Administrator's decision.
5.04. Public Hearings and Notification Requirements for Zoning-Related Applications.
A. Applications requiring public hearing and notification for zoning-related applications.
1. Request to change the zoning designation of a property or district (rezoning or zoning change) see subsection 5.05;
2. An amendment to the text of this Zoning Ordinance, see subsection 5.05;
3. Request for a Planned Development District, see subsection 5.08;
4. Request for a specific use permit, see subsection 5.09;
5. Amortization of nonconforming uses, see subsection 5.10;
6. Appeal of zoning-related decisions, see subsection 6.01;
7. Variance from a zoning regulation, see subsection 6.02; and
8. Special exception from a zoning regulation, see subsection 6.03.
B. Review bodies and the associated public hearings per zoning application type. Public hearings shall be conducted for each review body per plan or application type according to the following table.
Table 21: Review Bodies and the Associated Public Hearings per Zoning Application Type
Application Type | City Council | Planning and Zoning Commission | Board of Adjustment |
Application Type | City Council | Planning and Zoning Commission | Board of Adjustment |
Rezoning | Hearing | Hearing | |
Zoning text amendment | Hearing | Hearing | |
Planned Development District | Hearing | Hearing | |
Specific use permit | Hearing | Hearing | |
Amortization of nonconforming uses | Hearing | ||
Appeal of zoning-related decision | Hearing | ||
Variance from zoning regulation | Hearing | ||
Special exception from zoning regulation | Hearing | ||
C. Required public notice for zoning-related plans and applications. Public notices shall be required according to the following table.
Table 22: Type of Notice Required
Application Type | Published Notice | Mailed Notice |
Application Type | Published Notice | Mailed Notice |
Rezoning | Required | Required |
Zoning text amendment | Required | |
Planned Development District | Required | Required |
Specific use permit | Required | Required |
Amortization of nonconforming uses | Required | Required |
Appeal of zoning-related decision | Required | Required |
Variance from zoning regulation | Required | Required |
Special exception from zoning regulation | Required | Required |
D. Types of notice.
1. Published notice and mailed notice of public hearings for zoning changes involving real property.
a. Published notice.
(1) Notice of a public hearing to occur before the Planning and Zoning Commission and City Council will include the purpose, time, and place of the public hearing and will be published in the official newspaper of the city before the 15th calendar day prior to the date of the public hearing in accordance with Tex. Local Gov’t Code § 211.006.
(2) The notice must include a brief description of the request, identification of the property that is subject to the request, and the date, time, and location of the public hearing.
b. Mailed notice (also referred to as "written notice").
(1) Written notice of a public hearing to occur before the Planning and Zoning Commission shall be sent to all owners of property, as indicated by the most recently approved city tax roll, that is located within the area of application and within 200 feet of the boundaries of the area subject to the rezoning or SUP request.
(2) The written notice must be sent before the tenth calendar day prior to the date of the public hearing and include a brief description of the request, identification of the property that is subject to the request, and the date, time, and location of the public hearing.
(3) Said written notice must be served by using the last known address as listed on the most recently approved tax roll and depositing the notice, postage paid, in the regular United States Mail.
(4) If written notice as required is not sent before the tenth calendar day prior to the date of the public hearing, then the public hearing must be delayed until this notice requirement is met.
2. "Published notice" of public hearing for text amendments.
a. For requests involving proposed changes to the text of the zoning regulations, notice of the Planning and Zoning Commission and City Council public hearing shall be accomplished by publishing the purpose, time, and place of the public hearing in the official newspaper of the city before the 15th calendar day prior to the date of the public hearing.
b. Changes in the zoning text that do not change zoning district boundaries (i.e., that do not involve specific real property) do not require mailed/written notification to individual property owners.
3. "Published notice" and "mailed notice" of Board of Adjustment hearings.
a. For an appeal of a city administrative or interpretative decision, consideration of a variance request, or consideration of a special exception, the Board of Adjustment shall fix a reasonable time for the hearing, give the public notice by written notice in the mail addressed to all owners of real property located within 200 feet of the affected property, and by publication of notice of such hearing in the city's official newspaper.
b. Both the written/mailed and published notice shall be given at least ten days prior to the date for the hearing.
c. At the hearing, any party may appear in person or by attorney or by agent.
4. Special notice. Pursuant to Tex. Local Gov’t Code § 211.007(d), the City Council may, by a two-thirds vote, prescribe the type of notice to be given of the time and place of a public hearing held jointly by the City Council and the Planning and Zoning Commission.
5.05. Zoning Text and Map Amendments.
A. Two types of zoning amendments.
1. Zoning Map amendment (rezoning).
a. A rezoning is a change or modification to the boundaries of any zoning district shown on the City's Official Zoning District Map.
b. A zoning map amendment shall not zone any single lot into two or more zoning districts.
2. Zoning text amendment. A text amendment changes the text of this Zoning Ordinance and does not include changing or modification to the boundary of any zoning district.
B. Approval authority and report requirement for zoning amendments.
1. City Council approval required. The City Council may, from time to time, amend, supplement or change by ordinance the boundaries of zoning districts or the text of this Zoning Ordinance.
2. Planning and Zoning Commission report required. Before taking action on any proposed rezoning or text amendment, the City Council must receive a report and a recommendation from the Planning and Zoning Commission concerning the proposed rezoning or text amendment.
C. Planning and Zoning Commission report and public hearing.
1. Pursuant to Tex. Local Gov’t Code § 211.007, the Planning and Zoning Commission shall make a preliminary report and hold a public hearing on that report before submitting a final report to the City Council.
2. The Planning and Zoning Commission shall not hold a public hearing until notice has been given consistent with subsection 5.04.
D. City Council public hearing required.
1. The City Council must hold a public hearing before approving or adopting any proposed rezoning or text amendment.
2. The City Council shall not hold a public hearing until notice has been given consistent with subsection 5.04.
3. Three-fourths City Council vote required. A rezoning request shall not become effective except by a three-fourths vote of the full membership of the City Council if either of the following is true:
a. The Planning and Zoning Commission votes to recommend denial of the rezoning.
b. A written and signed protest against a proposed rezoning has been filed before the date of the public hearing with the City Secretary for any one of the following types of protesters:
(1) Interior protesters. The property owners, duly signed and acknowledged, of 20% or more of the lots or land area included within a proposed amendment boundary.
(2) Exterior protesters. The property owners, duly signed and acknowledged, of 20% or more of the lots or land area within the public hearing notification area.
E. Denial with prejudice. The City Council shall, unless otherwise stated in the motion, make all denials of zoning changes with prejudice. If the request is denied with prejudice, no additional application shall be accepted which involves all or any part of the same property within a period a six months after denial by the City Council, except;
1. At the request of the City Council; or
2. Upon written request by the applicant, the City Council may waive the six month waiting period and permit a new application to be filed. Such request for waiver shall not be set for a public hearing unless required by a majority vote of the City Council; or
3. Where the property involved is temporarily classified to the IH, Interim Holding District.
5.06. Certificate of Occupancy.
A. Certificate of occupancy required.
1. Certificate of occupancy shall be required for any of the following:
a. Occupancy and use of land without a Building consistent with the Use Chart, except for agricultural uses;
b. Occupancy and use of a building hereafter erected or structurally altered;
c. Change in use of an existing building to a use of a different classification;
d. Change in use of land to a use of a different classification;
e. Change in ownership of a business;
f. Any change in the use of a nonconforming use; and
g. Any use in existence with an annexation request.
2. Certificate of occupancy required from Building Official. No such use, or change of use, shall take place until a certificate of occupancy has been issued by the Building Official.
B. Procedure for new or altered buildings.
1. Written application. Written application for a certificate of occupancy for a new building or for an existing building which is to be altered may be made at the same time as the application for the building permit for such building.
2. Timing of certificate issuance. A final certificate of occupancy will not be issued prior to final inspection of the building.
5.07. Site Plan Requirements.
A. Purpose.
1. Through site plan review, the standards of this Zoning Ordinance, subdivision regulations, other applicable sections of the City's Code of Ordinances, and technical requirements such as building code, fire code, and engineering design standards can be uniformly implemented by the city for townhome, multi-family, and nonresidential uses.
2. The purpose of the site plan process is to:
a. Ensure compliance with adopted city development regulations and other applicable regulations that apply to the property for which the city has enforcement responsibility;
b. Promote safe, efficient and harmonious use of land through application of city-adopted design standards and guidelines;
c. Promote the vision established by the comprehensive plan;
d. Ensure adequate public facilities to serve development;
e. Coordinate and document the design of public and private improvements to be constructed;
f. Prevent or mitigate adverse development impacts, including overcrowding and congestion;
g. Aid evaluation and coordination of land subdivision, including the granting of easements, right-of-way, development agreements and provision of surety;
h. Identify and address environmental concerns (floodplain, drainage, trees, topography, etc.); and
i. Promote the public health, safety and welfare.
B. Applicability.
1. Processing and timing.
a. A site plan is required for an application for:
(1) Townhome and duplex development consisting of five or more connected units;
(2) Multi-family development consisting of five or more units;
(3) Development in conjunction with a specific use permit (SUP), unless the Zoning Administrator waives the requirement for a site plan; and
(4) Any nonresidential use.
b. Site plans related to building permit applications. No building permit shall be issued for any applicable developments or any construction or development activity shall occur unless a site plan is first approved by the Zoning Administrator or City Council (in the case of a specific use permit (SUP)).
c. Exempted development. The following types of development are exempted from the requirements of this subsection 5.07 Site Plan Requirements.
(1) Agricultural buildings;
(2) Single-family detached residential; and
(3) Temporary buildings as permitted by subsection 3.03 Use Chart.
2. Public hearings. A public hearing on a site plan is not required unless a site plan is prepared in conjunction with a specific use permit (SUP) application.
3. Effect of approval.
a. No building permit or certificate of occupancy will be issued unless all construction and development conforms to the site plan as approved by the city.
(1) While the site plan remains valid (see subsection 5.07.B.3.b), the city shall not apply any additional requirements concerning building placement, streets, drives, parking, landscaping or screening.
(2) Except where authorized by ordinance, a site plan may not be used to approve a variance to development regulations.
(3) Where an approved plan conflicts with an adopted regulation and no zoning variance or zoning special exception is expressly approved, the regulation shall apply.
b. Site plan lapse.
(1) The approval of a site plan is effective for a period of two years from the date of approval (see subsection 5.01.F).
(2) Expired site plans.
(a) Upon expiration of a site plan, the applicant must submit a new site plan subject to the then existing regulations.
(b) Site plan approval shall expire upon completion of the improvements shown on the plan. Permits must remain valid during the construction process.
(c) Subsequent additional development, site modifications and redevelopment shall be considered a new project subject to the ordinances, laws, and regulations in effect at the time additional development or modifications are proposed.
C. Site plan required supporting documents. The following plans may be required with a site plan application as determined by the Zoning Administrator:
1. Dimensional control plan;
2. Façade plan or elevation drawings (see subsection 4.05 Design Standards or subsection 4.06 Overlay Regulations);
3. Landscape plan (see subsection 4.01 Landscaping Requirements);
4. Final plat or replat;
5. Engineering plans or construction plans;
6. Traffic impact analysis;
7. Flood study; or
8. Other approvals as required by ordinance or resolution (see checklist provided by the Zoning Administrator).
D. Approval process. The Zoning Administrator will review an application for a site plan consistent with subsection 5.01 above, including the following specific procedures:
1. Upon receiving a completed application for a site plan (see subsection 5.01.E Application Determination of Completeness), the Zoning Administrator will distribute the site plan to the relevant city departments and officials (as well as outside agencies, as appropriate); and
2. The Zoning Administrator will:
a. Approve the application for a site plan;
b. Consolidate all comments received into a single itemized list and return the comments to the applicant with instructions for revising the site plan; or
c. Deny the application consistent with state law, with a written list of all items that are not in compliance with the regulations listed in subsection 5.07.
3. The Zoning Administrator will process the resubmittal of an application consistent with subsection 5.07.D.2 or, if there is a conflict between subsection 5.07.D.2 and state law, as consistent with state law.
4. If an application or resubmittal satisfies all requirements of regulations listed in subsection 5.07, the Zoning Administrator will issue written approval of the application (see subsection 5.07.B.3 Effect of Approval).
E. Revocation of site plan approval. The City Council may revoke approval of a site plan if it determines that the conditions of the approval have not been met or if the plan contains, or is based upon, incorrect information or if it is determined that it was obtained using fraud or deceit.
5.08. Planned Development (PD) Process.
A. Planned Development (PD) steps for creation and development.
1. Pre-application conference.
a. Before submitting an application for a Planned Development (PD) District, the applicant must provide the Zoning Administrator with an informal PD design statement and PD concept plan drawn to approximate scale, showing streets, lots, public areas, and other significant features.
b. The Zoning Administrator may require a pre-application conference with the applicant to review the proposed PD design statement and PD concept plan with other city departments.
2. PD application for rezoning.
a. Procedures and requirements.
(1) Unless modified by the Zoning Administrator in a manner consistent with state law and the ordinance of the city, the Zoning Administrator will process a PD application in accordance with the following subsections:
(a) Subsection 5.01 General Application Processing;
(b) Subsection 5.04 Public Hearings and Notification Requirements for Zoning-Related Applications; and
(c) Subsection 5.05 Zoning Text and Map Amendments.
(2) The PD application shall consist of a PD design statement and a PD concept plan.
(3) The Zoning Administrator may also require that the applicant provide other supporting documents as necessary to meet the submission requirements of this Zoning Ordinance.
(4) The PD designation shall not be used solely to obtain zoning variances from development standards.
b. PD design statement. The PD design statement shall be a written report consisting of at least the following elements:
(1) Title of PD or development;
(2) List of property owners and developers, including proposed developers that may be involved in later phases of the PD;
(3) Statement of the general location and relationship to adjoining land uses, both existing and proposed;
(4) Selection of one conventional zoning district as a base zoning district to regulate all uses and development regulations not identified as being modified (multiple base zoning districts may be selected to accommodate a mixture of land uses in different geographic areas);
(5) A description of the proposed sequence of development;
(6) Documents, tables, maps, or other description of the PD concept plan, including the following:
(a) Description of land use zones, including open space areas and density of proposed residential areas;
(b) Approximate allocation or proportion of land uses proposed;
(c) Proposed transportation network including typical street sections, medians, sidewalks, trails, and paths and their relationship to adopted city transportation plans;
(d) Proposed connections to existing city transportation corridors;
(e) Proposed stormwater management areas, including number of acres in the drainage area and delineation of applicable flood levels;
(f) General description of building types and architectural and design requirements;
(g) Any proposed regulations or restrictions not found in this Zoning Ordinance for the proposed base zoning district as well as any requested variances or waivers;
(h) A conceptual scaled layout of lots and buildings;
(i) The following physical characteristics: elevation, slope analysis, soil characteristics, tree cover, and drainage information;
(j) A topographic map with minimum five foot contour intervals; and
(k) A statement of utility lines and services to be installed, including lines to be dedicated to the city and which will remain private.
(7) The Zoning Administrator may require that the applicant prepare a Traffic Impact Analysis (TIA) report in order to assist the city in determining whether the PD will be supported with adequate levels of roadways and intersections concurrent with the demand created by the PD, and provide recommendations for addressing any roadways that are currently inadequate to support the impacts of the PD.
c. PD concept plan.
(1) The PD concept plan is a graphic representation of the development plan for the PD.
(2) In addition to the items listed in subsection 5.08.A.2.b(6), the PD concept plan should depict the entire PD at build-out and depict the integration of the proposed phases of the PD, as applicable, with surrounding development, including relationship between land uses, open space, transportation connections, schools and other public facilities, employment centers, retail, and other services.
(3) The Zoning Administrator may create a checklist of all items required for a complete PD concept plan and may waive or require any additional items based on the nature and scale of the proposed PD.
d. Effect of approval.
(1) The City Council may approve the PD on the condition that the applicant execute a development agreement or other mechanism approved by the City Attorney to upgrade or extend public facilities such as water, wastewater, stormwater, roadway, parks and trails, or other facilities directly impacted by development of the PD.
(2) Upon final approval by the City Council, the PD will become a part of the Official Zoning District Map.
(3) The ordinance shall adopt the PD design statement, PD concept plan, and other relevant supporting materials, and these materials will become a part of the official records of the city.
(4) The ordinance adopting the PD shall control the use and development of the property, and all building permits and development requests shall be in accordance with the plan unless the PD is modified by City Council (see subsection 5.08.C).
(5) City Council approval of the PD District, PD design statement, and PD concept plan is required prior to approval of any plat, site plan, or other development permit within the PD.
B. Expiration and extension of PD.
1. If, after two years from the date of approval of a PD, no progress towards completion has been made within the PD consistent with one or more actions listed in subsection 5.02.A.3, the PD design statement and PD concept plan will expire.
2. The property will remain zoned as PD on the Official Zoning District Map, but the PD design statement and PD concept plan will no longer be valid.
3. If the PD expires, a new PD design statement and PD concept plan must be submitted and approved by City Council prior to approval of any plat or site plan on the property.
4. The Zoning Administrator may grant a two year extension of validity for the PD design statement and PD concept plan. At the end of the two year extension, a second extension may be granted by the Zoning Administrator for up to one year.
5. An extension shall be granted if a development application for the PD has been submitted and is undergoing the development review process or if the Zoning Administrator determines that the project has demonstrated progress towards completion consistent with or more actions listed in subsection 5.02.A.3.
C. PD modifications.
1. Minor PD amendment and adjustment. The City Manager's designee may approve or defer a minor amendment to City Council provided all of the following conditions are satisfied:
a. The project boundaries are not altered;
b. Uses are not being modified or removed from the PD;
c. The allocation of land to particular uses is not modified by more than 10% and the relationship of uses within the project is not substantially altered;
d. The density of housing is not increased more than 10%;
e. Gross floor area is not increased or decreased by more than 10%;
f. The number and quality of amenities are not reduced;
g. The amount of open space and trails is not reduced by more than 5% and access to open space and trails is not reduced, either through creation of physical access barriers, removing linkages or physical access points, or by modifying the placement of uses and buildings relative to the open space.
2. City Manager's designee approval.
a. Upon receiving a request to modify an approved PD, the City Manager's designee will determine if proposed amendments to an approved PD satisfy the above criteria listed in subsection 5.08.C.1.
b. If the City Manager's designee determines that the criteria listed in subsection 5.08.C.1 are not satisfied, an application for an amended PD shall be submitted for full review and approval according to the procedures set forth in this subsection 5.08.
5.09. Specific Use Permit (SUP).
A. General description and authorization.
1. The uses listed under the various districts as "S" in the Use Chart require approval of a specific use permit (SUP) prior to approval of a certificate of occupancy.
2. With consideration given to setting, physical features, compatibility with surrounding land uses, traffic, and aesthetics, the City Council may authorize an SUP for a use indicated by "S" in the Use Chart if the Council finds that the use as approved is compatible with existing or planned land uses.
B. Application. Application and public hearing procedures for an SUP are consistent with the following subsections:
1. Subsection 5.01 General Application Processing;
2. Subsection 5.04 Public Hearings and Notification Requirements for Zoning-Related Applications;
3. Subsection 5.05 Zoning Text and Map Amendments;
4. Subsection 5.07 Site Plan Requirements, unless waived by the Zoning Administrator.
C. Criteria for specific permit approval.
1. Specific use permit criteria. The City Council shall use the following criteria to evaluate an SUP:
a. Whether the proposed use shall be in harmony with the policies of the comprehensive plan.
b. Whether the proposed use shall be in harmony with the general purpose and intent of the applicable zoning district regulations.
c. Whether the proposed use shall not adversely affect the use of neighboring properties.
d. Whether the proposed use shall not generate pedestrian and vehicular traffic that is hazardous or in conflict with the existing and anticipated traffic in the neighborhood.
e. Whether utility, drainage, parking, loading, signs, lighting access and other necessary public facilities to serve the proposed use shall meet the adopted codes of the city.
2. Specific conditions. In granting an SUP, the City Council may impose conditions, including limits of time, which shall be complied with by the owner or grantee before a certificate of occupancy may be issued by the Building Official for use of the building on such property pursuant to such SUP; and such conditions may not be construed as conditions precedent to the granting of the certificate of occupancy.
3. Compliance with written requirements. No SUP shall be granted unless the applicant, owner and grantee of the SUP accepts and agrees to be bound by and comply with the written requirements of the SUP and any conditions and supporting materials approved and adopted by City Council, including, but not limited to, the site plan and other conditions and restrictions approved by the City Council.
4. Expiration of SUP.
a. Following approval, an SUP may continue in operation and be transferred between owners, operators, or businesses at the same location unless one or more of the conditions listed in subsection 5.09.C.4.b is present.
b. An SUP will expire under one or more of the following conditions:
(1) The applicant does not apply for a building permit within one year from the time the SUP is approved;
(2) The building, premise, or use associated with the SUP is voluntarily vacated or abandoned for a period of six months or longer;
(3) The building, premise, or use associated with the SUP is destroyed to an extent that is 50% or less of the most recent appraised value by fire or other cause, and the building, premise, or use is not reconstructed or reestablished within one year of the occurrence of the event that destroyed the building, premise, or use; or
(4) The building, premise, or use associated with the SUP is destroyed to an extent greater than 50% of the most recent appraised value by fire or other cause.
c. The City Council, upon recommendation of the Planning and Zoning Commission, may approve a request to delay expiration of an SUP by up to one year.
d. If the SUP expires under any scenario listed in subsection 5.09.C.4.b, a new SUP must be approved prior to a certificate of occupancy being issued on the property.
5. Modification of SUP.
a. No building, premise, or use associated with the SUP may be enlarged, modified, structurally altered, or otherwise significantly changed unless City Council approves a modification to the SUP according to the procedures listed in subsection 5.09.B.
b. Any person possessing an SUP that is found to be in violation of this Zoning Ordinance, another ordinance of the city, or the conditions associated with the SUP must, upon notification by the city, cease the violation within 30 days or modify the SUP consistent with this subsection 5.09.
c. If a violation does not cease following notice given by the city, the City Council is authorized, by a simple majority vote, to suspend or revoke the SUP.
6. The Board of Adjustment shall not have jurisdiction to hear, review, reverse, or modify any decision, determination, or ruling with respect to the granting extension, revocation, or modification or any other action taken relating to such SUP.
5.10. Amortization of Nonconforming Uses.
A. City Council initiation of amortization case. The City Council, by majority vote, may request that the Board of Adjustment consider establishing a compliance date for a nonconforming use.
B. Board of Adjustment decision.
1. Once requested by the City Council, the Board of Adjustment may require the discontinuance of a nonconforming use under any plan whereby the full value of the use's structure and facilities can be amortized within a definite period of time, taking into consideration the general character of the neighborhood and the necessity for all property to conform to the zoning regulations.
2. The value of any structures and facilities that are configured for use by a conforming use in the zoning district where the property is located may be excluded from the determination of a reasonable amortization period.
3. All actions to discontinue a nonconforming use shall be taken with due regard for the property rights of the persons affected when considered in the light of the public welfare, the character of the area surrounding the nonconforming use, and the goal of conservation and preservation of conforming properties.
C. Public hearing process.
1. The Board of Adjustment shall hold a public hearing to determine whether continued operation of the nonconforming use is in the public interest. Any interested party may submit testimony or evidence either for or against amortization.
2. Upon receiving a request from the City Council, the Zoning Administrator shall schedule a public hearing before the Board of Adjustment.
3. In determining whether the continued operation is in the public interest, the Board of Adjustment shall consider the following factors:
a. The character of the surrounding neighborhood;
b. The degree of incompatibility of the use with the zoning district in which it is located;
c. The manner in which the use is being conducted;
d. The hours of operation of the use;
e. The extent to which continued operation of the use may threaten public health or safety;
f. The environmental impacts of the use's operation, including but not limited to the impacts of noise, glare, dust, and odor;
g. The extent to which public disturbances and nuisances may be created or perpetuated by continued operation of the use;
h. The extent to which traffic or parking problems may be created or perpetuated by continued operation of the use;
i. Any other factors relevant to the issue of whether continued operation of the use will adversely affect nearby properties;
j. The extent the nonconforming use impacts the value and marketability of the abutting and surrounding properties or neighborhood;
k. Whether the property is readily suitable for development or operation of a conforming use.
4. If the Board of Adjustment determines that cessation of the nonconforming use is in the public interest, the Board of Adjustment shall, consistent with state law, provide a compliance date for the nonconforming use under a plan whereby the owner's actual investment in the use before the time that the use became nonconforming can be amortized within a reasonable time period. The following factors shall be considered by the Board of Adjustment in determining a reasonable amortization period:
a. The owner's capital investment in structures, fixed equipment, and other assets (excluding inventory and other assets that may be feasibly transferred to another site and excluding structures, fixed equipment, and other assets that are readily suitable for use by a conforming use) on the property before the time the use became nonconforming;
b. Any costs that are reasonably and directly attributable to accomplishing the ordered compliance date, including demolition expenses, relocation expenses, termination of leases, and discharge of mortgages;
c. Any return on investment since inception of the use, including net income and depreciation;
d. The anticipated annual recovery of investment, including net income and depreciation;
e. A reasonable closeout and termination period for the nonconforming use.
5. The Board of Adjustment may request financial documentation from the owner relating to the factors listed.
6. If the owner does not provide documentation, the Board of Adjustment is authorized to make its determination of a compliance date based upon any reasonably available public records as well as testimony at the public hearing.
7. Failure by owner to provide the requested financial documents and records shall not prevent the Board of Adjustment from setting a compliance date.
D. Ceasing operations. If the Board of Adjustment establishes a compliance date for a nonconforming use, the use must cease operations on that date and it may not operate thereafter unless it becomes a conforming use.
E. Definition. For purposes of this subsection 5.10, OWNER means the owner of the nonconforming use at the time of the Board of Adjustment's determination of a compliance date for the nonconforming use.
F. Finality of decisions.
1. Decision to deny a request to establish a compliance date. A decision by the Board of Adjustment to deny a request to establish a compliance date is final unless appealed by an aggrieved party to district court within ten calendar days.
2. Decision setting a compliance date. A decision by the Board of Adjustment setting a compliance date is final unless appealed by an aggrieved party to district court within ten calendar days.
(Ord. 04-2022-34, passed 4-12-22)
5.11. Concept Plans
A. Purpose. The purpose of a concept plan is to provide City Council an opportunity to consider various development related aspects of a proposed development at the rezoning phase prior to any plat or site plan submittal. Concept plans are intended to determine how a future project could conform to the city’s zoning code, Future Land Use Plan, subdivision code, Master Thoroughfare Plan, and other applicable plans and regulations. Approval of a concept plan shall not allow development to reduce the minimum requirements for the requested zoning district and shall not constitute approval of any variance or deviation to the minimum requirements of the zoning code.
B. Applicability.
1. Approval of a concept plan is required for every proposed planned development, in accordance with subsection 5.08.
2. For all other zoning requests, approval of a concept plan is encouraged for any property that is intended for development, subject to the requirements listed in subsection 5.11.C below.
C. Content.
1. A concept plan that is voluntarily submitted shall, at a minimum, contain adequate information to address the evaluation criteria listed in subsection 5.11.D.
2. An application for a concept plan shall provide the following:
a. Payment of the application fee of $45;
b. Letter of intent providing a narrative of the proposal; and
c. Conceptual representation of each proposed use and a generalized representation of proposed site improvements.
3. An applicant for a concept plan is encouraged to include any of the following information that may be helpful in assessing the impacts of the proposed development:
a. Conceptual representation of vehicular and pedestrian impacts to neighboring properties, including proposed connections to existing and planned driveways and roadways;
b. Conceptual representation of vehicular and pedestrian circulation within the site, including right-of-way widths or proposed street sections up to the connection with the public right-of-way;
c. Identification of all areas to be dedicated to the city or to have public easements, such as open space and drainage areas;
d. Proposed number of dwelling units, which may be a range or expressed in overall density, the total acreage for residential uses, and the approximate square footage of buildings, by type, for non-residential uses;
e. Location and type of proposed screening between the site and all adjacent property;
f. Indication of boundary or size of each phase of development, if separate phases are proposed;
g. Description of how essential public services, including water, sewer, and drainage, will be provided;
h. General location of the proposed parking areas;
i. A graphic rendering of the existing site conditions, which depicts significant natural, topographical and physical features of the subject property including contours, location of water features and floodplain on or affecting the subject property, and existing drainage patterns;
j. Vicinity map (does not need to be scaled) indicating the area in which the property is located; and
k. Other information the applicant and/or owner might wish to include.
D. Review criteria. When considering a concept plan included with a zoning request, the Planning and Zoning Commission and City Council may consider the following criteria:
1. Conformance with the natural site topography and landforms, including natural drainage patterns and floodplain boundaries;
2. The impact of the proposed development on the safety, convenience, and ease of vehicular traffic flow and pedestrian movement to and from the site;
3. The impact of the proposed development on existing streets, utilities, parks, schools, and other public facilities;
4. The impact of the proposed development on adjacent land uses and the surrounding area;
5. Conformance with all applicable city requirements and regulations.
E. Expiration and extension of concept plan.
1. If no progress towards completion of the project has been made following approval of a concept plan, as progress is defined in subsection 5.02.A.3, the concept plan shall expire after two years from the date of approval or the most recent action as defined in subsection 5.02.A.3.
2. The property will remain zoned as approved on the Official Zoning District Map, but the concept plan will no longer be valid.
3. If the concept plan expires, a new concept plan meeting the minimum requirements of the zoning district and the criteria listed in subsection 5.11.C must be submitted and approved by City Council prior to approval of any plat or site plan on the property. City Council may, if requested by the applicant following expiration of the concept plan, vote to allow the property to develop without an approved concept plan and be subject to the minimum requirements of this code.
4. The City Manager's Designee may grant a two year extension of validity for the concept plan. At the end of the two year extension, a second extension may be granted by the City Manager's Designee for up to one year.
F. Concept plan modifications. Modifications to the concept plan require approval by City Council, unless approved as an administrative amendment.
1. Administrative amendment. The City Manager's Designee may approve or defer an administrative amendment to City Council as follows:
a. Additions to buildings shown or described on the concept plan, which do not increase the gross floor area of all buildings collectively by more than 10%;
b. Minor relocation or reorientation of buildings, lot lines and/or easements;
c. Relocation of points of access, if such relocation will not hinder traffic circulation on adjacent public rights of way as determined by the city's engineer. If access points were previously determined by an approved Traffic Impact Analysis (TIA), the City Manager's Designee may require that an updated TIA be submitted that provides analysis of the modified access points;
d. Relocation of internal access and circulation that does not impact access or traffic flow to and from streets that are external to the development;
e. Relocation or rearrangement of parking areas where the overall supply of parking is not substantially altered;
f. Reduction of established square footage or density limitations;
g. Increase of landscaping or building setbacks;
h. Relocation of or increase in open space if the change furthers the goals of this ordinance or the city's adopted Parks Master Plan; and
i. Modification of the location or size of proposed structural stormwater controls based on an engineered stormwater design.
2. City Manager's Designee approval.
a. Upon receiving a request to modify an approved concept plan, the City Manager's Designee will determine if proposed amendments to an approved concept plan satisfy the above criteria listed in subsection 5.11.F.1.
b. City Council approval of a new or modified concept plan may be required if the proposed development layout, character, or other conditions affecting the development are substantially altered, as determined by the City Manager's Designee.
c. The City Manager's Designee shall determine whether a request for amendment shall be approved administratively, or defer the decision to City Council at its next available meeting, within 30 days of receiving a request for amendment of the concept plan.
(Ord. 04-2022-34, passed 4-12-22; Am. Ord. 02-2023-09, passed 2-28-23; Am. Ord. 10-2023-74, passed 10-24-23)