*Editor's note—Ord. No. 1225 hereby repeals and replaces Article VI, Section 3, authorizing uses permitted on review, adopted August 18, 2003, as part of the new zoning ordinance, Ord. No. 969, and as amended by Ord. No. 999, adopted February 7, 2005, and Ord. No. 1031, adopted June 19, 2006.
A. Generally.
1. Each zoning district enumerates certain uses permitted by right and certain conditional uses. A conditional use is a use that is not permitted by right, but which may be permitted in a zoning district, based upon the review of compliance with specific criteria, public hearing, and imposed conditions.
2. The City of Spearfish recognizes that diversity and the blending of compatible uses is essential to a healthy and dynamic community. Toward that end, the following procedure is established to properly integrate conditional uses with permitted uses in various zoning districts, which the common council finds to be in accordance with the objectives of the comprehensive plan.
3. Each category of conditional use is listed in individual zoning districts. If a use is not identified on the list of conditional uses, or if the zoning administrator is unable to make an interpretation that a proposed use is analogous to those listed, the use is not permitted in that particular zoning district.
B. Approving authority. Application for a CUP shall be approved or denied by the planning commission following a recommendation from the zoning administrator. A CUP shall be considered approved by the planning commission if the application receives an affirmative vote by a simple majority of the present and voting members.
C. Evaluation criteria. In either making a recommendation to approve or deny, or acting to approve or deny an application for a CUP, the following criteria shall be considered:
1. The proposed use shall comply with other ordinances. A CUP may not be issued to allow a use otherwise prohibited specifically identified as being eligible for a CUP;
2. The proposed use shall be eligible for a CUP based on the zoning district;
3. The proposed use shall comply with the setback, lot coverage, height and other requirements of the zoning district, unless the subject property is currently legally nonconforming or a request for a variance is simultaneously submitted with the application for a CUP;
4. The proposed use shall be compatible with the location, physical character, and topographic features of the property;
5. Buffering measures along parcel boundaries shall exist or be incorporated to mitigate any visual impact of outdoor use areas onto adjacent property;
6. If applicable, lighting from all sources shall be designed so that it does not unreasonably affect adjacent property;
7. The proposed use shall not create an unreasonable public safety issue relating to the property or its surroundings, nor increase the risks of an existing public safety issue;
8. The proposed use shall have adequate pedestrian and vehicular access, circulation and parking, including those related to bicycle transportation and transportation by persons with physical disabilities;
9. The proposed use shall not result in any unusual or unreasonable parking impacts.
10. The proposed use shall not result in an unusual or unreasonable number of vehicle trips per day as measured against the character of the neighborhood of the subject property and the street network serving it;
11. The proposed use shall not result in an unusual or unreasonable level of noise;
12. Adequate public services and utilities shall be available to accommodate the proposed use; and
13. Additional imposed conditions, if any, will mitigate any probable adverse impacts of the proposed use.
14. For applications for small wind energy systems (SWES) only, the specific conditional use permit criteria for the SWES has been met.
D. Application and approval procedure.
1. A property owner or a designated representative may apply for a CUP, using forms available from the zoning administrator. Fees shall be required as established by city council resolution. The zoning administrator shall review the application for completeness and select the date of the planning commission's public hearing.
2. The zoning administrator shall send, by first-class mail postmarked a minimum of ten (10) days prior to the date of the planning commission public hearing, a notice to the owner of record of each parcel situated within one hundred forty (140) feet of the subject property, exclusive of rights-of-way, of the nature of the request and the date, place, and time of the public hearing of the planning commission.
3. A minimum of ten (10) days prior to the date of the public hearing, the applicant shall post a sign on the property for which the CUP is requested, notifying the public of the date and time of the public hearing. Sign size and content shall be according to the site posting guidelines adopted by the city council. The applicant shall be responsible for acquiring the sign and following the procedures as indicated in the guidelines.
4. Prior to the public hearing, the zoning administrator shall review the merits of the application and forward his or her recommendation to the planning commission, together with any recommended conditions regarding the location, character or other features of the proposed use as the zoning administrator may deem advisable in the furtherance of the general purposes of this section. In his or her recommendation, the zoning administrator shall fully set forth the findings to support his or her recommendation and conditions.
5. The planning commission shall hold its public hearing, having given ten (10) days' notice of the date, place and time of the hearing in the city’s designated legal newspaper.
6. Within thirty (30) days of its public hearing, the planning commission shall issue its approval or denial fully, setting forth the findings to support its decision to approve or deny. The planning commission may approve the CUP application with added conditions it may deem advisable in the furtherance of the general purposes of this section or another city ordinance.
7. The findings of the planning commission shall be documented in a written statement that includes:
a. A listing of the criteria from Article VI, Sec. 3C., along with an explanation as to whether each criterion has or has not been met. In circumstances where an individual criterion does not apply, an explanation shall be provided of why it does not apply.
b. The voting record of the planning commission, the date of the planning commission’s action, and the signature of the planning commission chair.
E. Appeal. The planning commission’s action taken on a CUP may be appealed to the board of adjustment by any person aggrieved by the decision, or by any officer, department, board or bureau of the municipality affected by the decision, according to the following procedure:
1. Notice of appeal must be filed with the zoning administrator within ten (10) days of the decision of the planning commission. The notice of appeal shall specify the grounds of the appeal, which shall include specific reference to the planning commission's finding(s) alleged to be in error or how the city failed to regularly pursue its authority. If a notice of appeal is accepted by the zoning administrator, the approval of the CUP in question shall be stayed until the appeal is finally resolved by the issuance of the board of adjustment’s decision.
2. At its next meeting, the planning commission shall set a public hearing before the board of adjustment.
3. The zoning administrator shall compile the record and forward it to the board of adjustment no later than ten (10) days before the public hearing.
4. The record shall be a public document and will consist of the CUP application, staff report, minutes of the planning commission meeting where the CUP was considered, findings of fact and conclusion of law adopted by the planning commission, and any relevant attachments or exhibits.
5. The zoning administrator shall send, by first-class mail postmarked a minimum of ten (10) days prior to the date of the board of adjustment public hearing, a notice to the following:
a. Each person who provided his or her mailing address while offering testimony during the planning commission hearing when the CUP was first approved.
b. Each owner of record of each parcel situated within one hundred forty (140) feet of the subject property, exclusive of rights-of-way.
c. The notice shall include the date, place, and time of the public hearing of the board of adjustment. The notice shall include a statement that copies of the record of the planning commission’s decision are available for review and photocopying at the office of the zoning administrator.
6. It shall require a two-thirds (2/3) vote of the members of the board of adjustment to reverse or modify the decision of the planning commission.
F. Denial. If an application for a CUP is denied, reapplication shall not be permitted for a period of one (1) year, unless the zoning administrator determines that the nature of the application has materially changed.
G. Review. Upon receipt of a written complaint filed by a party directly affected and upon a determination by the zoning administrator that the complaint states sufficient cause to review a CUP, or at the zoning administrator’s independent determination that sufficient cause exists to review a CUP, the zoning administrator may request that the planning commission conduct a format review of a CUP. A written complaint shall contain a detailed description of an impermissible use not allowed by the existing zoning or not permitted by the CUP.
H. Revocation. A CUP may be revoked by the planning commission only for cause, consisting of failure to maintain the standards or conditions under which the CUP was issued, and according to the following procedure:
1. A notice of intent to revoke a CUP shall be sent by the zoning administrator to the person that holds the CUP. The notice shall be in writing and sent via certified mail or hand delivery, and shall specify the area or areas of failure to meet requirements and maintain conditions that may have been imposed and provide a deadline for compliance.
2. If, prior to the deadline, proof of compliance is made by the holder of the CUP, the CUP shall be continued in force.
3. Upon notice of intent to revoke, the holder of a CUP has the right to request a public hearing. If such a request is made, the planning commission shall hold a public hearing on the matter and make a final determination on the revocation.
4. If, upon receiving a notice of intent to revoke, the holder of a CUP requests a public hearing, the zoning administrator shall send, by certified mail postmarked a minimum of ten (10) days prior to the date of the planning commission revocation public hearing, a notice of the date, place, and time of such public hearing to such holder and to each owner of record of each parcel situated within one hundred forty (140) feet of the subject property, exclusive of rights-of-way.
5. If, following notice, the holder of a CUP does not assert his or her right to a public hearing, the CUP shall be deemed to be revoked on the thirty-first (31st) day following the notice.
I. Expiration. A CUP shall automatically expire if:
1. The use for which it was approved ceased for a period of two (2) years; or
2. The use for which it was approved has not been undertaken and completed according to the terms and conditions of the CUP within one (1) year of approval or within one (1) year of the time specified in the CUP for completion, whichever is later. A CUP is considered approved upon the effective date of the planning commission’s or board of adjustment’s approval, whichever is later.
J. Amendments. A CUP may be amended. Amendments are considered major or minor and are addressed in the following manner:
1. Major amendments must be reviewed by the planning commission, under the provisions of this section. The notice, hearing, criteria, fee and other provisions apply as though the application is for a new CUP. A major amendment is one where:
a. A new conditional use is proposed;
b. The applicant proposes any change to specific conditions approved by the planning commission in the initial approval or as modified by the board of adjustment;
c. The structure or site is substantially enlarged by increasing the gross square footage by more than twenty percent (20%); or
d. The zoning administrator determines that the amendment is major.
2. Minor amendments may be reviewed and approved by the zoning administrator. A minor amendment is one where the zoning administrator determines that the proposed amendment or modification to the site will not have a significant adverse impact on neighboring properties, the street network, or the appearance of the property, and is otherwise in conformance with the spirit of the initial approval. The zoning administrator shall consider the criteria outlined in this section to determine if the proposed amendment or modifications still meet the requirements of a CUP.
K. Transfer.
1. A CUP may be transferred from the original holder to a new holder, subject to the conditions and restrictions of the original CUP. Any proposed change in use must be submitted to the zoning administrator as an amendment. To transfer to a new holder, a letter providing the new CUP holders contact name(s), address and telephone number, shall be submitted to the zoning administrator who shall then update the CUP record accordingly.
2. Conditional use permits (formerly known as “use permits” or “uses permitted on review”) issued before the effective date of this section shall be governed by the approvals and conditions given at the time of approval. However, any proposed amendments or revocation proceedings shall be governed by this section.
(Ord. No. 1225, 12-21-15; Ord. No. 1277, 4-2-18; Ord. No. 1303, 12-2-19)