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§ 4.407  CONDITIONAL USE PERMIT (“CUP”) OVERLAY DISTRICT.
   (a)   Purpose and intent.
      (1)   Purpose and intent. This purpose of this section is to set forth the standards for the zoning commission and city council to evaluate proposed conditional uses and provide the procedures for considering and approving conditional use permit applications. Conditional uses are those uses which are generally compatible with the permitted land uses in a given zoning district, but which require individual review of their proposed location, design and configuration, and the imposition of conditions in order to ensure the appropriateness of the use at a particular location within a given zoning district.
      (2)   Relation to base zoning district. The conditional use permit is a zoning overlay that supplements the primary underlying zoning district classification by adding the specified use not otherwise allowed by right in the base zoning district. The zoning designation of property with a conditional use permit shall consist of the base zoning symbol and the overlay symbol as a suffix.
      (3)   Conditional use permit amendment to zoning ordinance. Every conditional use permit approved under the provisions of this section shall be considered as an amendment to the zoning ordinance as applicable to the property involved.
      (4)   Status of conditional permitted uses.  The following general rules apply to all conditional uses:
         a.   Conditional use permits in residential districts shall be limited to those uses designated "CUP" in the Residential District Use Table in § 4.603.
         b.   Approval of a conditional use permit shall authorize only the particular use or category of related uses for which the conditional use permit is issued.
         c.   A conditional use shall not be enlarged, extended or otherwise modified unless approved by the city council or approved administratively as applicable.
         d.   The use of property for the purposes described in a conditional use permit shall not commence until a certificate of occupancy has been issued.  A certificate of occupancy shall not be issued until all or approvals which may be required by the codes and ordinances of the city, including, but not limited to, a building permit, a certificate of occupancy and subdivision approval have been satisfied.
   (b)   Application for conditional use permit.
      (1)   An application shall be filed with the planning and development department on a form prepared by that department and accompanied by a site plan. An application shall not be accepted for filing until the information required by the application and the site plan is provided and the appropriate filing fee has been paid or a request for a site plan to be required and considered through the site plan public hearing process.  The zoning administrator shall determine the completeness of the application and the required application fee has been paid.
      (2)   The application shall include any additional information as determined by the zoning administrator.
         a.   The application will be scheduled for a public hearing before the zoning commission with appropriate notifications, once all comments from the zoning administrator have been addressed.
         b.   The zoning commission and the city council may request additional information to be included in the application.
      (3)   An application for a conditional use permit may be withdrawn at any time, but if the application has been recommended for denial by the zoning commission in compliance with Chapter 3, any new application requesting substantially the same use on all or part of the same described land shall not be considered within one year of withdrawal. No application for a conditional use permit shall be considered for one year after a final decision denying the application by the city council nor shall an application for a planned development district be accepted for one year after denial of a conditional use permit for a substantially similar use.
   (c)   Procedure.
      (1)   Public hearing required. The zoning commission and the city council shall hold a public hearing on all applications for conditional use permits. The procedures for public hearings for a request for approval of an application shall be in accordance with Chapter 3, Article 5.
      (2)   Written notice. Written notice of the public hearing before the zoning commission shall be in conformance with Chapter 3, Article 5.
      (3)   Zoning commission recommendation. All recommendations by the zoning commission shall be forwarded to the city council for the setting and holding of a public hearing thereon. At the public hearing the zoning commission shall review the application and receive from the applicant, the city staff, and others who have an interest in the matter, facts and opinions concerning the proposed use and the proposed conditions to which such use would be subject. The zoning commission may recommend approval to the city council with or without conditions or modifications or recommend denial of the application.
      (4)   City council. Upon receipt of the recommendation of the zoning commission, the city council may approve the application or deny the application with or without prejudice. Approval of a conditional use permit shall be by ordinance.
   (d)   Standards.
      (1)   Factors for consideration. When considering applications for a conditional use permit, the zoning commission in making its recommendation and the city council in rendering its decision on the application shall on the basis of the site plan, if applicable, and other information submitted, evaluate the impact of the conditional use on, and the compatibility with surrounding properties and the neighborhoods to ensure the appropriateness of the use at a particular location.  The zoning commission and the city council shall consider the following:
         a.   The proposed use is consistent with the Comprehensive Plan;
         b.   The proposed use is compatible with the existing and adjacent uses;
         c.   The proposed use meets all supplemental use standards specifically applicable to the use as set forth in Chapter 5;
         d.   The proposed use is compatible with and preserves the character and integrity of adjacent development and neighborhoods;
         e.   The proposed use is not materially detrimental to the public health, safety, and welfare, or results in material damage or prejudice to other property in the vicinity.
      (2)   Conditions. In approving the application, the zoning commission may recommend and the city council may impose such conditions as are reasonably necessary to mitigate adverse effects of the proposed use in accordance with these standards and the purpose and intent of this section. Conditions and modifications may include, but are not limited to:
         a.   Regulation of period of time the use will be allowed;
         b.   Limitation of building  size  or  height;
         c.   Increased  open  space;
         d.   Limitations  on  impervious  surfaces;
         e.   Enhanced  loading  and  parking  requirements;
         f.   Additional  landscaping,  curbing, sidewalk, vehicular access and parking improvements;
         g.   Placement or orientation of buildings and entryways;
         h.   Buffer yards, landscaping and screening;
         i.   Signage restrictions and design;
         j.   Maintenance of buildings and outdoor areas; and
         k.   Development in accordance with a submitted site plan.
   Conditions imposed shall be complied with before a certificate of occupancy is issued for the use of the land or any structure which is part of the conditional use permit; and such conditions shall not be construed as conditions precedent to the approval of the zoning amendment, but shall be construed as conditions precedent to the granting of a certificate of occupancy.
      (3)   Waivers and variances. The city council may waive or modify specific standards otherwise made applicable to the conditional use as reasonably necessary to mitigate adverse effects of the proposed use in accordance with the standards and purpose of this section.  Conditions imposed by the city council may not be waived or varied by the board of adjustment.
   (e)   Site plan requirements.
      (1)   Site plan requirements. The site plan submitted in support of a request for a conditional use permit shall contain sufficient information delineating the characteristics of the site, changes in those characteristics as may be proposed by the development, how the development will relate to public services and facilities, and what protection features are included to ensure that the development will be compatible with existing and allowable development on adjacent property and to mitigate development-related adverse impacts. The site plan shall show at least the following items of information:
         a.   A current plat of the site including all easements;
         b.   Description of the proposed use(s);
         c.   Height, square footage, and setbacks of structures;
         d.   Required yards and open space;
         e.   Driveway widths and locations, roadway adjustments, traffic control devices, and access restrictions to control traffic flow or divert traffic as may be needed to reduce or eliminate development-generated traffic on neighborhood streets, as approved by Transportation and Public Works (TPW).  A traffic impact analysis may be necessary as determined by TPW;
         f.   Off-street parking and loading areas;
         g.   Refuse and service areas including access and screening;
         h.   Utilities with reference to location, availability, and compatibility;
         i.   Note indicating that the development will comply with the below development standards of Chapter 6 unless otherwise provided on the site plan.
            1.   Exterior construction material and building design;
            2.   Location and dimensions of signs;
            3.   Lighting, including shielding and ambient light level not to exceed one foot candle when adjacent to one- or two-family residential zoning districts or uses;
            4.   Landscaping requirements.
         j.   An analysis of the existing land uses within 300 feet and the relationship of the proposed development to the existing land uses;
         k.   Locations of floodplains and provisions for drainage, as approved by TPW;
         l.   Any sustainable construction methods or design to be used in the development;
         m.   Surface type of streets, alleys, and sidewalks, existing and proposed; and
         n.   Any requested waivers to development standards shall be listed and clearly identified on the site plan.
   (f)   Amendments.  An amendment is a request for a modification of any condition of a previously approved and currently valid conditional use permit.
      (1)   Review and Evaluation. Any revisions to the conditional use permit after the approval by the city council shall be submitted to the zoning administrator for distribution, review and evaluation by city staff prior to resubmission and consideration by the zoning commission and city council where applicable.
      (2)   Minor amendments. A conditional use permit is eligible for a minor amendment if the request conforms to the provisions of this section, is in keeping with the intent of the comprehensive plan, and there have not been more than two minor amendments previously granted pursuant to this subsection. Minor amendments to an approved site plan, which will not cause any of the following circumstances to occur, may be authorized by the zoning administrator:
         a.   For all zoning districts other than mixed-use, form-based or urban residential:
            1.   A change in the character of the development;
            2.   A 5% or greater increase in the gross floor areas of structures;
            3.   Any substantial and material changes in such external effects on adjacent property as noise, heat, light, glare and vibration;
            4.   A substantial and material reduction in the originally approved separations between buildings;
            5.   Any adverse changes in traffic circulation, safety, drainage or utilities;
            6.   A 5% or greater increase in the height of structures;
            7.   A 10% or greater reduction in the originally approved setbacks from property lines;
            8.   A 5% or greater increase in ground coverage by structures;
            9.   A 5% or greater reduction in the ratio of off-street parking and loading space (provided that the minimum requirements of Chapter 6, Article 2 are met);
            10.   A change in the size, height, lighting, flashing, animation or orientation of originally approved signs. The decision of the Zoning Administrator as to whether requested changes are minor shall be final and non-appealable.
         b.   For all mixed-use, form-based or urban residential districts:
            1.   A change in the character of the development;
            2.   A 5% or greater reduction or increase in the gross floor areas of structures;
            3.   Any substantial and material changes in such external effects on adjacent property as noise, heat, light, glare and vibration;
            4.   A substantial and material increase in the originally approved separations between buildings;
            5.   Any adverse changes in traffic circulation, safety, drainage or utilities;
            6.   A 5% or greater reduction or increase in the height of structures;
            7.   A 10% or greater increase in the originally approved front yard setbacks from property lines;
            8.   A 5% or greater reduction or increase in ground coverage by structures;
            9.   A 5% or greater increase in the ratio of off-street parking and loading space unless provided in structured parking (provided that the minimum requirements of Chapter 6, Article 2 are met); and
            10.   A change in the size, height, lighting or orientation of originally approved signs.
The applicant for a minor amendment shall submit a site plan that is consistent with the requirements of subsection (e) above. The submittal shall include the site plan approved with the original application and a revised copy with annotation of the requested changes. The revised site plan shall be prepared to scale the zoning administrator to indicate acceptance of the revised site plan and, if applicable, shall include appropriate signature and seals of the design professional (i.e. architect, engineer, and surveyor) that prepared the site plan. The site plan shall be processed only upon payment of the applicable fee. If approved, the site plan shall be recorded with the ordinance approving the conditional use permit in the office of the city secretary and kept on file in the planning and development department.
      (3)   Major amendments. Any proposed amendment other than those provided for in subsection (f)(2) above shall be considered a major amendment of a previously approved and currently valid conditional use permit. A new conditional use permit authorization shall be approved in the same manner and under the same procedures as are applicable to the issuance of the original permit.
   (g)   Duration.
      (1)   Period of conditional use.  Conditional use permits shall be in effect for the duration of the use, or for a time period specified in the conditions of approval, or a time period is specified in Chapter 5, Supplemental Use Standards, or until the time a revocation of the permit is effectuated.
      (2)   Renewal.
         a.   Public hearing renewal.  A conditional use permit that is not eligible for administrative renewal shall be scheduled for public hearings before the zoning commission and the city council when an application is filed and accepted as complete by the zoning administrator.  The property owner or representative must file a complete application for renewal with the zoning administrator not later than 90 days before the expiration date of the conditional use permit. The conditional use may continue to operate during the public hearing renewal process provided that an application for renewal was submitted 90 days before the date of expiration. Notice of the public hearing shall be provided as would be required for a new application of a conditional use permit. The zoning commission shall make a recommendation to the city council regarding the proposed renewal based on staff reports, field inspections and evidence presented at its hearing of the following:
            1.   Documentation of any health and safety concerns including but not limited to:
               (i)   Police records, and municipal or other court records as applicable, for time period since council approval;
               (ii)   Code compliance records for time period since city council approval;
               (iii)   Any state license required for operation of the use.
   (h)   Discontinuation of use.  In the event the use under the conditional use permit is discontinued for six months, the use of the same shall thereafter conform to the regulations of the base zoning district of such property unless a new and separate conditional use permit is granted by the city council for continuation of the use.
   (i)   Expiration.  A conditional use permit shall expire and be considered invalid if any of the below apply:
      (1)   A building permit, if any, a plat for unplatted property or a certificate of occupancy is not issued within 180 days of the date of approval or the building permit subsequently expires, provided however, the zoning administrator may authorize an extension the conditional use permit for an additional 180 days for the issuance of a building permit, to plat the unplatted property or to obtain a certificate of occupancy.
      (2)   The termination date in the ordinance approving the conditional use permit has passed.  Continued operation of the conditional use permit shall require re-approval through the public hearing process.
   (j)   Revocation. If the zoning administrator determines based on inspection or reasonable investigation by the city, that there are reasonable grounds for revocation of a conditional use permit, a public hearing shall be set before the zoning commission and the city council.
      (1)   Circumstances that  warrant revocation of an approved conditional use permit include but shall not be limited to the following:
         a.   There is a conviction of a violation of any of the provisions of the zoning ordinance, the ordinance approving the conditional use or any ordinance of the city that occurs on the property for which the conditional use permit is granted;
         b.   The building, premise, or land uses under the conditional use permit is enlarged, modified, structurally altered, or otherwise significantly changed without the approval of a separate conditional use permit for such enlargement, modification, structural alteration or change;
         c.   Violation of any provision of the site plan encompassing the property for which the conditional use permit was issue for, terms or conditions of a conditional use permit;
         d.   The conditional use permit was obtained by fraud or with deception.
      (2)   Revocation process. The revocation process shall be conducted as for a zoning district change including notice to holder of the conditional use permit and property owners within 300 feet, a public hearing and recommendation by the zoning commission, and a public hearing and ordinance amendment consideration by the city council. The city council may revoke the conditional use permit, deny the revocation and allow the use to continue, deny the revocation and amend the conditional use permit to attach conditions to assure that the terms, conditions and requirements of the conditional use permit be met.
      (3)   Effect of revocation. Upon the effective date of the revocation, it shall be unlawful to undertake or perform any activity that was previously authorized by the conditional use permit. The property subject to the conditional use permit may be used for any permitted use within the base zoning district.
   (k)   Effect on existing special exceptions.  Special exceptions for certain land uses in existence upon the effective date of the adoption of the conditional use permit, shall continue for the term granted by the board of adjustment. Upon the expiration of the term for the special exception, a request to continue the use shall conform to the requirements for a conditional use permit.
(Ord. 23609-03-2019, §1, passed 3-19-2019)
Editor’s note:
   Section 4 of Ord. 22703-05-2017, adopted May 2, 2017, repealed § 4.407, Stockyards Design (“SYD”) Overlay District, derived from § 1 of Ord. 22083-02-2016, adopted February 2, 2016. See also Code Comparative Table.