(A) Generally. A conditional use is a use of property, structure or building within a zoning district other than a principally permitted use, which is expressly permitted by the chapter. Conditional uses are generally considered undesirable or incompatible uses, therefore necessitating special or additional regulations than would otherwise be required in a specific zoning district.
(B) Conditional use versus variances.
(1) An application for a variance seeks permission to do something which is not in conformance with the zoning chapter. A variance is an overriding of the legislative judgment, justified by the existence of either an unnecessary hardship or a practical difficulty in physically or practically meeting the exact terms or specifications of the zoning chapter.
(2) In contrast, an applicant for a conditional use does not seek to “vary” the chapter. The permission he or she seeks is one permitted by the chapter, but with special conditions attached to ensure protection of the health, safety and welfare of the neighborhood and the general public.
(3) Accordingly, while the applicant for a variance must show both an unnecessary hardship or practical difficulty and consistency with the public interest, a conditional use petition generally involves only the latter issue.
(C) Authority to grant. The authority to review plans and grant conditional use permits shall rest with the Board of Zoning Appeals.
(D) Types of conditional use exceptions. Land uses which create safety, traffic, noise or other undesirable problems, and therefore require conditional use permits include:
(1) Uses deemed necessary for the convenience of the community’s residents which require special deliberation as to locale because of their inherent tendency to create noise, traffic or density problems;
(2) Uses which are necessary but incompatible uses within a specific zoning district; and
(3) Uses customarily sited in residential zones but which, because they attract great numbers of people, require special deliberation regarding conditions that must be attached to their permitted use and due consideration of their effect upon neighboring property owners.
(E) Factors of consideration. Before granting a conditional use permit, the Board of Zoning Appeals shall consider the following factors.
(1) Concept of highest and best use. If there are other valid reasons for denying a conditional use permit, the denial may be sustained even if the proposed use is the highest and best use which can be made of the land in question. While a conditional use permit is not generally utilized as a relief from hardship, the impact and financial consequences may properly be considered by the Board.
(2) Traffic congestion. Evidence that a proposed use will create a traffic hazard, undue congestion or some other severe or adverse impact on area traffic may justify denial of a conditional use permit.
(3) Public convenience and welfare. The Board of Zoning Appeals must consider regulations provided in the zoning chapter, including those necessary to protect the public health, safety, welfare and convenience. The applicant must show that the proposed uses will not be offensive to the community health, safety, welfare or convenience. On the other hand, evidence that a particular service is needed may indicate that the permit is reasonably necessary for the public convenience.
(4) Public safety. A conditional use permit may be denied if the proposed use would violate any specific health or safety regulations.
(5) Regulation of competitive uses. The Board of Zoning Appeals shall not deny a permit solely for the purpose of limiting the number of similar businesses in an area. However, the Board may invoke reasonable minimum distances between similar businesses for some legitimate reasons such as safety or traffic.
(6) Effect on neighboring property values. The intended use shall not cause a depreciation of value of adjacent property. In fact, such a finding may support the conclusion that the permit will conflict with the public interest. Future development of a given area should also be considered.
(7) Impact on Comprehensive Development Plan. The issuance or the denial of a conditional use permit may have a direct and significant effect upon the community’s planning scheme. This impact should not be of an adverse nature.
(8) Checklist of development standards. The basic checklist of development standards that may receive special consideration includes, but is not limited to, the following items; which are general criteria to which specific standards may be applied by the Board of Zoning Appeals: ingress and egress to the site and to structures; parking and loading facilities; refuse and other service areas; utility services and facilities; appropriate screening and buffering; yards and open space; health and safety standards; and compatibility with surrounding uses.
(9) Environmental impact statement. The Board of Zoning Appeals may require the applicant for a conditional use to perform an environmental impact study of the area in which the use is proposed. This condition may especially be applied to such examples as confined feed lots, mining or mineral extraction, landfills, stock yards, sewage treatment plants, chemical manufacturing and the like. An environmental impact study shall, if required, be conducted to meet the accepted standards of federal regulatory bodies such as FHWA (Federal Highway Administration).
(10) Legitimate conditional use. The Board of Zoning Appeals shall review the particular facts and circumstances of each application and determine through findings of fact that the proposed use is a appropriate conditional use as established under the provisions of this chapter.
(F) Conditional permit. The Board of Zoning Appeals shall have the authority to impose specific conditions on any conditional use permit. A conditional use permit may be denied where the applicant fails to comply with specific conditions made a part of the permit by the Board, or fails to comply with a reasonable request of the Board for furnishing specific information related to the proposed use.
(G) Filing and notification requirements. Filing and notification requirements for a conditional use are the same as prescribed for variances in § 157.051.
(H) Public hearing. The Board of Zoning Appeals shall hold a public hearing within a reasonable length of time after receipt of an application for a conditional use from the applicant. However, the public hearing shall not be held sooner than ten days after its receipt.
(I) Board action and findings.
(1) Either at the public hearing or within a reasonable length of time thereafter, the Board shall either approve, conditionally approve or disapprove the request. The Board shall further make a finding that the reasons set forth in the application are justifiable and that the development and zoning standards proposed are in conformance with the requirements and intent of the zoning chapter.
(2) No conditional use shall be granted by the Board except at a regular meeting thereof. Before granting a conditional use the Board shall make a determination in writing of its findings for each application. Such findings shall be based upon the Board’s review of the factors of consideration listed in division (E) above.
(Ord. 1997-1, § 130.2(Q), passed 1-22-1997)