(A) Purpose.
(1) Conditional zoning districts are applicable if the regulations and restrictions of a general use zoning district are inadequate to ensure the compatibility of the proposed development with the immediately surrounding neighborhood in accordance with the principles of the City’s Comprehensive Land Use Plan and the UDO. In these circumstances, a general zoning district designation allowing a use by right would not be appropriate for a particular property even though the use itself could, if properly planned, be appropriate for the property consistent with the objectives of the UDO and adopted land development plan, comprehensive plan, transportation and corridor plans, small area plans and other land use and transportation policy documents.
(2) The rezoning process established in this section provides for the accommodation of the uses by a reclassification of property into a conditional zoning district, subject to additional conditions which ensure compatibility of the proposed use with the use and enjoyment of neighboring properties. A conditional zoning district bears the same designation as a general use zoning district but is a conditional zoning district subject to additional conditions in which limited uses are permitted and that are contained in the ordinance approving the conditional zoning district. A conditional zoning district allows a particular use or uses to be established only in accordance with specified standards and conditions tailored to each individual development project. The districts also can be used to implement environmental mitigation measures to avoid or minimize the impacts of the project, as determined through the analysis required in § 160.02(A). This is a voluntary rezoning procedure that is intended for firm development proposals. It is not intended or suited for securing early zoning for tentative proposals that may not be undertaken for some time.
(3) Conditional zoning districts parallel general use zoning districts. Only those land uses (including uses by right, special uses and those uses identified as CD in Table 155-8 Table of Permitted Uses) permitted in a general use zoning district to which a conditional zoning district corresponds shall be allowed. All requirements of any corresponding general use district and all other requirements of the UDO apply to a conditional zoning district except to the extent that the approved rules, regulations and conditions included in the petition for rezoning are more restrictive than the general use district requirements.
(B) Process required.
(1) A person petitioning for rezoning of a tract of land may elect to request a conditional zoning district for that tract. The conditional zoning district application must specify the actual use or uses, and all other development regulations authorized by state law, which are intended for the property specified in the petition. The intended use or uses and development regulations must be permitted in the corresponding general use district.
(2) The Board of Commissioners is to approve or disapprove the application on the basis of the specific use or uses and development regulations requested. Development in a conditional zoning district requires approval of a single application similar to a general use district rezoning application.
(3) Property may be placed in a conditional zoning district only in response to a petition signed by the owners of all the property to be included or by an agent authorized by all of the owners to file the application. A petition for conditional zoning shall include:
(a) A master site plan prepared in accordance with Appendix A;
(b) Written supporting documentation that specifies the actual use or uses proposed for the property;
(c) Proposed rules, regulations, and conditions that, in addition to all predetermined requirements of this UDO, will govern the development and use of the property; and
(d) A statement analyzing the reasonableness of the proposed rezoning.
(4) During its initial review of a conditional zoning petition, the Planning Board shall consider whether or not a community informational meeting, to be organized and conducted by the petitioner, would be beneficial to making project information available to those most likely to be impacted by the proposed zoning change. If the Planning Board concludes that a community informational meeting should be held, the petitioner shall conduct such meeting in accordance with the following provisions.
(a) The community informational meeting shall be held prior to the date of the next Planning Board meeting at which the petition will be reviewed.
(b) Written notice of such a meeting shall be given to the property owners and organizations entitled to notice as determined by policies established by the city.
(c) The petitioner shall file a written report of the community informational meeting with the Zoning Administrator. The petitioner’s 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; a roster of the names, mailing addresses, and telephone numbers of the persons in attendance at the meeting; a summary of issues discussed at the meeting; and a description of any changes to the rezoning petition made by the petitioner as a result of the meeting.
(d) The purpose of the community informational meeting is to:
1. Provide specific information regarding the proposed development including but not limited to a description of the proposed use(s) of the property, the proposed density and intensity of land uses, the location and arrangement of the proposed land use(s) on the property, the proposed development schedule, and proposed regulations or conditions, in addition to those required by this Ordinance, that will govern the development and use of the property; and
2. To receive comments and input from citizens likely to be impacted by the proposed zoning change and subsequent development of the property.
(e) In the event the petitioner has not held at least one meeting pursuant to this section, the petitioner shall file a report with the Zoning Administrator documenting efforts that were made to arrange such a meeting and stating the reasons such a meeting was not held.
(f) The adequacy of a meeting held or report filed pursuant to this section shall be considered by the Board of Commissioners but shall not be subject to judicial review.
(5) Review and approval process. The review and approval process for conditional zoning district petitions involves a legislative hearing and legislative decision by the Board of Commissioners. The review of conditional zoning district petitions shall be undertaken in accordance with the provisions of §§ 160.02 through 160.10, as modified by this section.
(a) In the course of evaluating the proposed use, the Board of Commissioners may request additional information deemed appropriate to provide a complete analysis of the proposal.
(b) Conditional zoning district decisions are subject to judicial review using the same procedures and standard of review applicable to general use district zoning decisions.
(c) Conditional zoning district decisions shall be made in consideration of identified relevant adopted land use plans for the area, including, but not limited to, land development plans, comprehensive plans, strategic plans, district plans, small area plans, transportation and corridor plans and other land development policy documents.
(d) If the conditional zoning district application is approved, the Board of Commissioners shall authorize the requested use with reasonable conditions as mutually agreed to in writing by the applicant and Board of Commissioners and determined to be desirable in promoting public health, safety and general welfare.
(6) Conditions to approval. Specific conditions applicable to the conditional zoning districts may be proposed by the petitioner or the city or its agencies, but only those conditions mutually agreed to in writing by the city and the petitioner may be incorporated into the zoning regulations or permit requirements.
(a) The conditional district rezoning application shall specify the use or uses that are intended for the property, as well as any additional conditions on the use of the property that the applicant may propose be conditions of the rezoning. Conditions and site-specific standards imposed in a conditional zoning district shall be limited to:
1. Those that address conformance of the development and use of the site to ordinances and officially adopted plans and
2. Those that address the impacts reasonably expected to be generated by the development or use of the site.
(b) Any such conditions should relate to the relationship of the proposed use to surrounding property, proposed support facilities such as parking areas and driveways, pedestrian and vehicular circulation systems, screening and buffer areas, the timing of development, street and right-of-way improvements, water and sewer improvements, stormwater drainage, the provision of open space, the mitigation of environmental impacts, and other matters that the Board of Commissioners may find appropriate or the petitioner may propose.
(c) Such conditions to approval of the petition may include dedication to the city or state, as appropriate, of any rights-of-way or easements for streets, water, sewer or other public utilities necessary to serve the proposed development.
(d) No condition shall be less restrictive than the standards of the general use district or the standards of any overlay district that applies to the property.
(e) No condition shall be made part of the application, or shall be attached to approval of the conditional zoning district, which specifies the ownership status, race, religion or character of the occupants of housing units, the minimum value of improvements, or any illegal exclusionary device; or which states that the use of the property will not be subject to regulations or restrictions set forth in the UDO which would apply to the property in any event, such as the regulations for an overlay district which covers the property.
(f) If for any reason any condition for approval is found to be illegal or invalid or if the petitioner should fail to carry out any condition in the written and signed agreement, the approval of the site plan for the district shall be null and void and of no effect and proceedings shall be instituted by the city to rezone the property to its previous zoning classification or to another zoning district.
(g) The conditions shall be agreed upon, put in writing, and signed by both the petitioner and City upon final approval of the rezoning by the Board of Commissioners.
(h) After the city has delivered to the newspaper the notice of public hearing for the application, the applicant shall make no changes in the conditions that are less restrictive than those stated in the application, including, but not limited to, smaller setbacks; more dwelling or rooming units; greater height; more access points; new uses; and fewer improvements. However, more restrictive conditions or additional conditions may be added to the application if the conditions are received by the Planning and Inspections Department in writing and signed by all owners of the property at least ten working days before the date scheduled for final Board of Commissioners action on the application.
(7) Effect of approval. If a petition for conditional zoning is approved, the development and use of the property shall be governed by the predetermined ordinance requirements applicable to the district’s classification, the approved site plan or master plan for the district, and any additional approved rules, regulations and conditions, all of which shall constitute the zoning regulations for the approved district and are binding on the property as an amendment to this Ordinance and to the zoning map.
(a) If a petition is approved, only those uses and structures indicated in the approved petition and site plan shall be allowed on the subject property. A change of location of the structures may be authorized pursuant to division (B)(8) below provided that the change in building layout does not result in an increase in the number of structures.
(b) 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. A conditional zoning district shall be identified by the same designation as the underlying general district followed by the letters “CD” (for example, “R-20 (CD)”).
(c) No permit shall be issued for any development activity within a conditional zoning district except in accordance with the approved petition and site plan for the district.
(d) Any violation of the approved site plan or any rules, regulations and conditions for the district shall be treated the same as any other violation of the UDO and shall be subject to the same remedies and penalties as any such violation.
(8) Alterations to approval. Except as provided in division (B)(8)(a) below, changes to an approved petition or to the conditions attached to the approved petition shall be considered a change to the conditional zoning district and shall be processed as a new conditional zoning application in accordance with the procedures set forth in this section.
(a) The Zoning Administrator shall have the delegated authority to approve administrative minor modifications to an approved site plan. The Zoning Administrator shall have no authority to amend the conditions of approval of a petition. Any decision by the Zoning Administrator must be in writing stating the grounds for approval or denial. Minor modifications shall be limited to changes that the Zoning Administrator determines would not:
1. Change the gross square footage of nonresidential development by more than 5%;
2. Change the lot coverage by more than 5%;
3. Change any use or density;
4. Adjust the landscaping requirements by more than 10%; or
5. Adjust the required parking more than 5%.
(b) The Zoning Administrator, however, shall always have the discretion to decline to exercise the delegated authority either because he or she is uncertain about approval of the change pursuant to the standard or because a rezoning petition for a legislative hearing and Board of Commissioners consideration is deemed appropriate under the circumstances. If the Zoning Administrator declines to exercise this authority, the applicant may file a rezoning petition for a legislative hearing and Board of Commissioners decision in accordance with the provisions delineated in §§ 160.02 through 160.10.
(c) Any request for an administrative modification shall be pursuant to a written letter, signed by the owners of all of the property affected by the proposed change, detailing the requested change. Upon request, the applicant shall provide any additional information as deemed necessary by the Zoning Administrator. Upon an approval of an administrative modification, the applicant shall file a sufficient number of copies of the revised site plan as deemed necessary by the Zoning Administrator.
(9) Review of approved Conditional Zoning Districts. It is intended that property shall be reclassified to a conditional zoning district only in the event of firm plans to develop the property. Therefore, no sooner than two years after the date of approval of the petition, the Planning Board may examine the progress made toward developing the property in accordance with the approved petition and any conditions attached to the approval.
(a) If the Planning Board determines that substantial progress has not been made in accordance with the approved petition and conditions, the Planning Board shall forward to the Board of Commissioners a report which may recommend that the property be rezoned to its previous zoning classification or to another zoning district. If the Board of Commissioners concurs with the Planning Board’s recommendation, the Board of Commissioners may initiate the rezoning of the property in accordance with the procedures delineated in §§ 160.02 through 160.10.
(b) If the Planning Board determines that substantial progress has been made to develop the property, the Planning Board may recommend that an extension of time be granted. The Board of Commissioners, after reviewing the recommendation of the Planning Board, may approve an extension of time not to exceed an additional 12 months. Approval of such a time extension by the Board of Commissioners may be made without conducting a formal public hearing.
(c) If, after the expiration of the extended time period, the Planning Board determines that no substantial progress has been made and the Board of Commissioners concurs with that determination, the Board of Commissioners shall proceed to: conduct a legislative hearing on the matter to evaluate whether or not another extension of time is warranted; or initiate the rezoning of the property to its previous zoning classification or to another zoning classification using the procedures delineated in §§ 160.02 through 160.10.
(d) For purposes of this section, examples of substantial progress may include: the approval of construction plans for streets, utilities and other infrastructure; the initiation of land preparation activities such as clearing and grading; the initiation of the construction of the principal building(s); and the initiation of the construction of streets, utilities, other infrastructure or required site amenities.
(Ord. passed 7-25-2011; Ord. 21-O-04, passed 6-28-2021)