(A) Purpose. The "conditional zoning" district (CZ) approval process is established to address those situations when a particular use may be acceptable but the general zoning districts which would allow that use would not be acceptable. Such zones may be approved or changed only by the Planning Board or Board of Alderman in accordance with the regulations contained herein. The review process established herein provides for the accommodation of such uses by a reclassification of property into a "conditional" district.
(1) Rezoning of property to any conditional district is a voluntary procedure on the part of the property owner.
(2) Unlike requests for rezoning to a general zoning district, an application for a conditional zoning may be filed only by the owner of the property in question or the owner's authorized agent.
(B) Application process.
(1) Petitioning for a conditional zoning district is a voluntary procedure and can be initiated only by the owner(s) of the property(ies) in question or by his/her authorized agent. No conditional zoning district may be established until an application has been submitted and the Board of Alderman has approved such application. The Administrator shall schedule a meeting with the applicant, prior to any public information meeting (PIM) being advertised and/or held to review the conditional rezoning application.
(2) Furthermore, no application shall be considered complete unless it is accompanied by all items required by this section and a fee, in accordance with a fee schedule approved by the governing board for the submittal of an application for rezoning to a conditional district. Said fee shall be waived for any application submitted by any official or agency acting on behalf of the Town of Dallas, Gaston County or the State of North Carolina.
(3) The Administrator may require the petitioner to submit more than one copy of the conditional rezoning application in order to have enough copies available to circulate to other government agencies for review and comment. When dealing with the conditional zoning district process, it may be desirable to request additional information in order to evaluate a proposed use and its relationship to the surrounding area. Therefore, the Planning Board or Board of Alderman may request additional information as they deem necessary.
(C) Public involvement meeting.
(1) Before a legislative hearing may be held on a petition for a conditional zoning district, the petitioner must file with the planning department a written report of at least one community meeting held by the petitioner.
(2) Written notice of such a meeting shall be given to the property owners and organizations entitled to notice as provided by § 153.124.
(3) The report shall include among other things, a listing of those persons and organizations contacted about the meeting and the manner and date of contact, the date, time and location of the meeting, and a description of any changes to the conditional rezoning petition made by petitioner as a result of the meeting. In the event the petitioner has not held at least one meeting pursuant to this subsection, the petitioner shall file a report documenting efforts that were made to arrange such a meeting and stating the reasons such a meeting was not held. The adequacy of a meeting held or report filed pursuant to this section shall be considered by the Planning Board and/or the Board of Alderman but shall not be subject to judicial review.
(D) Submittal to Zoning Administrator. Before any property is rezoned to a (CZ) conditional district, the application must be reviewed by the Planning Board, and a legislative hearing first must be held by the Board of Alderman. Upon submission of a completed application, the applicant will be informed of the dates of the meetings and legislative hearing. The Planning Board review shall be held first and shall take place no sooner than five weeks after the complete application has been submitted to the zoning administrator. Notification of the legislative hearings shall be made as provided by § 153.124.
(E) Planning Board review. Once the Planning Board review has been concluded, the Planning Board shall have up to 45 days to render a recommendation on the conditional rezoning. Any recommendation shall be accompanied by a statement describing whether the action is consistent with an adopted comprehensive plan and any other officially adopted plan that is applicable and explaining why the Planning Board considers the action taken to be reasonable and in the public interest. Once a recommendation is received by the Planning Board, the Administrator will coordinate with the applicant to set a date for the legislative hearing to be held at a Board of Alderman meeting, to be followed by a decision.
(F) Board of Alderman action. Any legislative hearing held by the Board of Alderman pertaining to the Conditional Zoning must be set within 60 days of the date of recommendation. The Board of Alderman may open and continue this hearing and take action at a later date. The Board of Alderman will be apprised of the Planning Board's previous actions on the matter at hand. Any decision on a Conditional Zoning shall be accompanied by a statement describing whether the action is consistent with an adopted comprehensive plan and any other officially adopted plan that is applicable and explaining why the Board of Alderman considers the action taken to be reasonable and in the public interest.
(G) Conditions to approval of petition. Conditional Zoning shall be legislative in nature. In approving a petition for the reclassification of a piece of property to a conditional district, the Board of Alderman may agree to reasonable and appropriate conditions attached to approval of the petition. Such conditions shall be limited to those that address the conformance of the development and use of the site to Town Ordinances and an officially adopted comprehensive or other plan and those that address the impacts reasonably expected to be generated by the development or use of the site. The petitioner will have a reasonable opportunity to consider and respond to any additional requirements prior to approval or denial by the governing board. In no instance shall any of these conditions be less restrictive than any requirements that would otherwise pertain to that particular development if it were located in a general zoning district. The applicant must provide written consent to the mutually agreed upon conditions. Such conditions may exceed any performance criteria or minimum requirements listed elsewhere in this chapter that pertain to that development. Statements that:
(1) Analyze whether the rezoning is consistent with an adopted comprehensive plan and any other officially adopted plan;
(2) Other matters that the town deems appropriate; and
(3) Why it considers the action taken to be reasonable and in the public interest shall be prepared and accompany each final decision relative to the conditional rezoning request.
(H) Payment in lieu of open space dedication.
(1) If open space within a development is physically impractical due to unusual topographic conditions then the Board of Alderman may, at its discretion, accept either an equitable amount of land in another location, or a fee paid to the town in lieu of dedication, through conditional zoning.
(2) The following formula shall be used to determine the fee:
(Assessed Value of On-Site Property) x ((Yearly Adjusted Inflation Rate) (# of Years since Last Revaluation) +1) = Payment in Lieu of Open Space Dedication Fee |
(a) Assessed value of on-site property equals the value of the required amount of land to be dedicated as a percentage of the assessed valuation of the site prior to subdivision. (i.e. If the total acreage is 100 and the total assessed value equals $500,000 and the required open space dedication is 15 acres, then the Assessed Value of the Open Space Dedication would be 15% of $500,000 or $75,000.
(b) Yearly adjusted inflation rate is based upon prevailing inflation rates as reported annually in the Wall Street Journal or other reliable financial reporting medium. (i.e. 3%)
(c) Number of years since last revaluation is the total number of years since the last revaluation was conducted by the taxing authority.
Example:
Assessed Valuation: $75,000
Inflation Rate: 3%
Yrs Since Last Revaluation: 6
Cost of Off-Site Open Space= $88,500
(75,000) x ((0.3x6)+1) = $88,500
(2) Payments in lieu of dedication shall be approved as part of the schematic. Any disagreement in the amount of required payment shall be resolved by conducting a professional appraisal of the fair market value of the property. The professional appraiser shall be mutually agreed upon by the town or appointed by the town should an agreement not be reached. All payments made in lieu of dedication shall be made at the time of construction document approval. Failure to submit the required fee along with such applications will delay approval of such submissions until payment is rendered. All funds received for payment in lieu of dedication shall be used for the acquisition, development, or redevelopment of public open space within the same general area of the new development; within the town.
(I) Effect of approval; zoning map designation. If a petition for a conditional district is approved, the district that is established and all conditions which may have been attached to the approval are binding on the property as an amendment to the zoning map. Subsequent development on the property in question shall be in accordance to the standards for the approved conditional district, the site plan, and any conditions attached to the approval. The applicant shall be responsible for all expenses involved in the dedication of rights-of-way when such dedication is a condition of the rezoning. Following the approval of the petition for a conditional zoning district, the subject property shall be identified on the Zoning Map by the appropriate district designation. The future land use map shall be deemed amended when an inconsistent rezoning is approved by the Board of Aldermen.
(J) Binding effect.
(1) The Administrator may approve minor changes in the detail of the approved application. A “minor change” to the approved conditional use permit shall be deemed to be a change which:
(a) Will not alter the basic relationship of the proposed development to adjacent property;
(b) Will not increase the gross floor area of any nonresidential use by the smaller of ten 10% or 10,000 square feet (Note: Such limitations shall be cumulative and shall be based on the gross floor area of the conditional use permit as originally approved);
(c) Will not decrease the off-street parking ratio below the minimum number of parking spaces required by this chapter or reduce the yards provided at the periphery of the site, by the lesser of ten feet or 10% of the current existing yard measurement;
(d) Will not increase the height of any structure to the extent that additional usable floor space could be added;
(e) Will not result in an increase in the number of dwelling units constructed;
(f) Will not alter the uses permitted.
(2) Further changes to the development may be made only by the Planning Board or Board of Alderman in accordance with this chapter.
(3) No certificate of occupancy for a use listed in a conditional district shall be issued for any building or land use on a piece of property unless the building is constructed or used, or the land is developed or used, in conformity with the conditions approved. In the event that only a segment of a proposed development has been approved, the certificate of occupancy shall be issued only for that portion of the development constructed or used as approved.
(K) Change in CD Zoning. Once a petition for rezoning to a conditional district has been approved by the Board of Alderman, any request to materially change (i.e., any change other than a "minor change" as defined in § 153.072(I)) the parallel conditional district shall be considered a new zoning change request. All procedures pertinent to new conditional rezoning requests as outlined in this chapter shall be followed.
(L) Petition resubmission.
(1) If a request for conditional zoning is denied, a similar application for the same property or any portion thereof shall not be filed until the expiration of a 12-month period from the date of denial. This waiting period shall not be applicable where the application for a conditional zoning is determined by the Administrator to be substantially different from (i.e., not similar to) the original application.
(2) Notwithstanding, the Administrator may allow resubmission of a similar application within said 12-month period if it determines that since the date of action on the prior petition:
(a) There has been a significant change in the zoning district classification of an adjacent piece of property; or
(b) The governing board has adopted a plan that changes public policy regarding how the property affected by the proposed conditional rezoning should be developed; or
(c) Construction or expansion of a road, water line, sewer line, or other such facilities has occurred to serve the property and can accommodate comfortably the intensity of development allowed under the proposed classification; or
(4) There has been some other extraordinary change in conditions or circumstances, outside the control of the petitioner, which justifies waiver of the 12-month restriction on a new petition; this, however, shall not include a change in the ownership of the subject property.
(L) Petition withdrawal. An applicant who has submitted a complete application for a conditional rezoning may withdraw the application prior to a final decision being rendered.
(1) If a petition is withdrawn once a legislative hearing has been advertised (via paper, mail, or on-premises sign), a similar petition submitted by that property owner (or his agent) shall not be accepted by the Administrator within 180 days of the date of withdrawal. (Note: The purpose of this is to allow petitions to be withdrawn without penalty prior to the posting of any legislative hearing notices or submittal of such notice to the newspaper of general circulation).
(2) If said petition is otherwise withdrawn within two business days of a public hearing where a final decision may have been otherwise rendered, a similar petition submitted by that property owner/or his agent shall not be accepted by the Administrator within one year of the date of withdrawal.
(M) Appeals. An appeal to the decision of the Board of Alderman shall be filed with the Clerk of Superior Court in the nature of certiorari in accordance with G.S 160D-1402 within 30 days after the Board of Alderman's decision.
(Ord. passed 12-8- 1985; Am. Ord. passed 1-14-2020; Am. Ord. passed - - )