Pursuant to KRS 100.203(8), Planning Commission or the Urban County Council may, as a condition to granting a map amendment, restrict the use of the property affected to a particular use, or a particular class of use, or a specified density within those permitted in a given zoning category; impose architectural or other visual requirements or restrictions upon development in areas zoned historic; and impose screening and buffering restrictions upon the subject property. In recognition that the aforementioned powers may be useful in accomplishing the purposes set forth in Section 1-3, but at the same time in recognition that such powers should be thoughtfully and sparingly used, the method whereby such restrictions or conditions may be imposed, modified, removed, amended and enforced is set forth below.
(a) Criteria and Terms. A binding restriction or condition may be imposed whenever one (1) or more of the specifications of this Zoning Ordinance for the proposed zoning category, if exercised by the applicant, would impair the integrity and character of the area in which the subject property is located or adjoining areas, unless restrictions or conditions as permitted in this Article are imposed in addition to those imposed in the Zoning Ordinance. Such restriction or condition may include, but shall not be limited to, time limitations, requirements that one (1) or more things be done, or restrictions or conditions of a continuing nature, so long as the same are limited to the matters set forth in this section 6-7. No restriction or condition may be imposed which shall deprive the applicant of a reasonable use of the land or create an unnecessary hardship on the applicant.
(b) Procedure. Imposition of binding restrictions or conditions may be considered at any point in the Zoning Map Amendment procedure. However, before the Commission recommends such a restriction or condition or the Urban County Council adopts the same, it shall make findings of fact and conclusions of law which are supported by substantial and competent evidence; which are not arbitrary or capricious; and which demonstrate that the effect of the proposed Zoning Map Amendment on the public health, safety and welfare in the area in which the subject property is located and adjoining areas has been considered. The Council may also designate certain conditions or restrictions as amendable only by Council action. Any such condition or restriction so designated may only be amended, modified or removed by Council action as set forth under Subsection (c)(1) of this section. Conditions or restrictions not so designated may be amended, modified or removed by the Planning Commission as set forth under Subsection (c)(2) of this section. Only when the Urban County Council holds its own public hearing or reviews the record and the transcript of the Commission hearing may the Council impose a binding restriction or condition not recommended by the Commission, or modify or remove a restriction recommended by the Commission or designate certain conditions as amendable only by Council action. Any binding restriction or condition finally imposed after completion of the Zoning Map Amendment process shall be included in the Urban County Council ordinance adopting the Zoning Map Amendment, a copy of which the Urban County Council Clerk shall furnish to the Divisions of Building Inspection and Planning.
(c) Amendment. Modification, removal or amendment of conditions or restrictions shall be as follows:
(1) Restrictions or Conditions Designated by the Urban County Council. The Urban County Council shall have final authority to consider and act upon requests for modification, removal or other amendment of a duly imposed binding restriction or condition so designated by the Council at the time of their adoption.
(a) Findings Required. The request may be granted by the Council only if it is found that there has been a major change of an economic, physical or social nature on the subject property or within the area in which the subject property is located, which was not anticipated at the time the binding restriction or condition was imposed, and which has substantially altered the basic character of such area making the restriction or condition inappropriate or improper. The burden shall be on the applicant to establish said finding by a clear preponderance of the evidence.
(b) Procedure. The procedure for review, notice and action on requests to modify, remove or amend an imposed restriction or condition shall be the same as for a zone map amendment, except that a full public hearing by the Urban County Council shall be required in all cases. The Council's decision to modify, remove or amend a duly imposed binding restriction or condition shall be final action; and any person or entity claiming to be injured or aggrieved by that action may appeal to Fayette Circuit Court within thirty (30) days after such final action pursuant to KRS 100.347.
(2) All Other Restrictions or Conditions. The Planning Commission shall have final authority to consider and act upon requests for modification, removal or other amendment of all other restrictions or conditions in accordance with the procedure and requirements set forth in Subsection (c)(1) of this section, except that no Council action shall be required. In the case of a request to modify, remove or amend a Neighborhood Design Character Overlay (ND-1) zone restriction(s), the application shall follow the procedure as set forth above, but shall be reviewed by the Planning Commission for adherence to the requirements set forth in Subsection (c)(2)(a) of this section. In addition, notice shall be given to the members of the Urban County Council, to the Mayor and to the Council Clerk at least fourteen (14) days in advance of the public hearing. Members of the Urban County Council may appear and speak at the public hearing. The Planning Commission's decision to modify, remove or amend a duly imposed binding restriction or condition shall be final action, and any person or entity claiming to be injured or aggrieved by that action may appeal to Fayette Circuit Court within thirty days after such final action, pursuant to KRS 100.347.
(a) Findings Required for ND-1 Overlay Zone. The request may be granted by the Planning Commission only if the request for modification, removal or amendment is found to meet the following:
(1) The granting of the modification, removal or amendment to an ND-1 Overlay restriction will not adversely affect the public health, safety or welfare, will not alter the essential character of the overlay district, will not cause a hazard or a nuisance to the public, and will not allow an unreasonable circumvention of the requirements of the ND-1 Overlay restrictions. In making these findings, the Planning Commission shall consider whether:
(a) The requested modification, removal or amendment arises from special circumstances that do not generally apply to land in the same ND-1 Overlay District;
(b) The strict application of the provisions of the restriction would deprive the applicant of the reasonable use of the land or would create an unnecessary hardship on the applicant;
(c) The circumstances are the result of actions of the applicant taken subsequent to the adoption of the ND-1 Overlay restrictions from which relief is sought; and
(d) The general intent and preservation goals of the ND-1 Overlay District are being met.
(2) The Planning Commission shall deny any request for modification, removal or amendment to an ND-1 Overlay restriction arising from circumstances that are the result of willful violations of the restriction by the applicant subsequent to the adoption of the ND-1 Overlay zone from which the amendment is sought.
(b) The burden shall be on the applicant to establish said finding by a clear preponderance of the evidence.
(c) The decision of the Planning Commission shall be recorded in minutes and records and issued in written form to the applicant, the Division of Planning and the Division of Building Inspection to constitute proof of the change.
(d) Enforcement. Binding restrictions or conditions imposed under this Article shall be enforced through subsequent development plans, subdivision plans, building permits, occupancy permits and other enforcement powers and shall be in addition to requirements imposed by such plans or permits and other laws or regulations.
(e) Judicial Review. Imposition of binding restrictions or conditions pursuant to this Article shall be upheld on review if supported by substantial, reliable and probative evidence found within the record as a whole.
(Code 1983, § 6-7; Ord. No. 37-87 , § 1, 3-17-1987; Ord. No. 282-2008 , § 1, 12-9-2008; Ord. No. 122-2011 , § 10, 9-29-2011)
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