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DIVISION 3.
SPECIAL ZONING REVIEW--FULL NOTICE PROCEDURE
SPECIAL ZONING REVIEW--FULL NOTICE PROCEDURE
Special zoning reviews which require the full notice procedure involve PDSD director decisions on development applications in resource overlay zones, applications for variances before the board of adjustment and certain special exception uses that are decided by the zoning examiner, the "zoning examiner special exceptions", and mitigation plans for certain restaurants serving alcohol. This procedure provides broad notice to parties who may be affected by the development. It is the responsibility of the applicant to provide full and complete information on the project in a timely manner and the responsibility of the affected parties to provide comments to the applicant and/or the city in a timely manner. This procedure applies to applications as specified in the LUC and include the following.
(Ord. No. 10387, § 4, 4-10-07; Ord. No. 10655, § 4, 4-21-09, eff. 7-1-09)
An application for and review of a special zoning request that requires full notice procedure shall comply with the following.
(1) Pre-application conference. A pre-application conference with city staff to review requirements for the proposal under this chapter, the LUC, development standards and other applicable policies and regulations is required on all full notice procedure applications.
(2) Neighborhood meeting. The applicant shall offer to meet at a specified time and place to discuss the proposed project with the persons and entities entitled to notice of the application. The offer shall be made at least ten (10) days prior to the date of the meeting. The meeting shall occur at least fifteen (15) and not more than sixty (60) days prior to the submittal of the application. The neighborhood meeting shall be held at a location near the property that is the subject of the application. Notice of the meeting shall also be provided by the applicant to the office of the council ward in which the subject site is located. Documentation of the offer to meet and a summary of the meeting shall be submitted with the application.
(3) Application. Applications shall conform to the requirements set forth in the LUC, this chapter and appropriate development standards. An application is accepted or rejected within seven (7) days of the date of receipt unless the applicant consents to additional time. An application may, in the discretion of the director, be conditionally accepted.
(4) Public notice of the application. Applications for full notice procedure shall be provide public notice as follows.
a. Mailed notice.
1. Shall be sent to the applicant, public service agencies affected by the application, all property owners within the subject site and within three hundred (300) feet of the subject site, the neighborhood association(s) which includes or are within one (1) mile of the subject site, any person or organization that has filed a request and paid a fee to receive notification of public meetings and hearings on a particular process and any other person the director determines has an interest in the matter.
2. Property owners shall be determined from the records of the Pima County Assessor that are available to the public no more than forty-five (45) days prior to the application or public hearing.
3. Shall be provided to all parties of record on a previous hearing on the same application and to other affected property owners as required by each process.
4. Shall be sent whether or not the properties are within the corporate limits of the city.
5. Adjoining land under the same ownership as the subject site and public right-of-way abutting the site shall be included as part of the subject site in determining the boundaries from which the notice area is measured.
6. For sites within the Airport Environs Zone (AEZ), notice shall be provided to the Tucson International Airport or to the Davis Monthan Airforce Base, whichever is applicable.
b. Posted notice. Notice shall be posted in such locations on the subject property as to be visible to the public. The posted notice shall identify the request, the date, time and location of any public comment period or public hearings and a telephone number for the city and the applicant where further information may be obtained.
(5) Public comment period. There shall be a period of twenty (20) days following the date on which notice is mailed for submission of comments on the proposal to the planning and development services department.
(6) Review process. Review is conducted by the planning and development services department staff and other agencies, committees or advisory boards as specified in this chapter, the LUC and as may be deemed appropriate by the director.
(7) Denial of plan compliance appeal. if an application is rejected because it is not consistent with the general plan or any applicable specific plan, the rejection of the application may be appealed by the applicant to the mayor and council in accordance with [section] 23A-62.
(Ord. No. 9967, § 9, 5-17-04; Ord. No. 10655, § 4, 4-21-09, eff. 7-1-09)
This procedure applies to approvals within overlay zones, such as, but not limited to, the Hillside Development Zone (HDZ), Scenic Corridor Zone (SCZ), Environment Resource Zone (ERZ) and Historic Preservation Zone (HPZ). This section does not apply to applications for development subject to the Major Streets and Routes Setback Zone or the Gateway Corridor Zone, to the Rio Nuevo and Downtown Development (RND) Zone or the Drachman School Overlay (DSO) Zone. This procedure also applies to development applications subject to the watercourse, amenities, safety and habitat (WASH) regulations in section 29-12 et seq. and approvals of mitigation plans for certain restaurants serving alcohol.
(1) Application, notice, public comment and review. The pre-application conference, neighborhood meeting, application, notice, public comment, review and denial of plan appeal shall be in conformance with section 23A-50.
(2) Maintenance and protection. Prior to approval of a subdivision plat or issuance of building permits, such measures as covenants, assurances, or homeowners' associations, as may be necessary to ensure the long-term maintenance and control measures, may be required.
(3) Alteration of the property prohibited. No grubbing, grading, excavation or construction shall occur nor shall the city issue any approval or permit for grubbing, grading, excavation or construction on any lot or parcel subject to the overlay zone unless and until the city approves a plat or plan in conformance with this chapter, the LUC and the development standards.
(4) WASH development. Development subject to the watercourse, amenities, safety and habitat (WASH) regulations in section 29-12 et seq. shall be subject to review and approval in accordance with the PDSD full notice procedure, section 23A-51, and to the standards for review set forth in section 29-17.
(5) Time for issuance of decision. The director shall not make any decision prior to the expiration of the twenty-day period for public comment. The director shall make a decision on applications no later than twenty (20) days after the expiration of the comment period or five (5) days after the latest recommendation from a city advisory board, whichever is later.
(6) Notice of decision. Notice of the decision on an application shall be mailed within three (3) days of the decision to all persons entitled to notice of the application.
(7) Appeal. The decision of the director may be appealed to the mayor and council on the grounds that the decision is not in conformance with the criteria established by the LUC. The notice of intent to appeal shall be in accordance with section 23A-62 and shall be filed with the city clerk no later than fourteen (14) days after the date of the decision. The complete appeal materials must be filed within thirty (30) days of the decision. A copy of the appeal shall be provided to the director at the time it is filed.
(8) Site inspection. Prior to the issuance of an occupancy permit, the site will be inspected by the planning and development services department (PDSD) for compliance with the plans approved for the issuance of building permits and any changes authorized by the PDSD director to those approved plans during construction.
(Ord. No. 9967, § 9, 5-17-04; Ord. No. 10387, § 4, 4-10-07; Ord. No. 10655, § 4, 4-21-09, eff. 7-1-09)
Applications for certain design development options, modifications of development regulations in the RND and for variances before the board of adjustment shall be in conformance with section 23A-50 and the following.
(1) Director's recommendation. The director shall prepare a recommendation in accordance and forward it, together with the DRB and STAC recommendations when required, to the applicant and the board of adjustment not less than five (5) days prior to the scheduled public hearing. The recommendation shall be a written report that includes the request and present plans, policies, regulations, and other information relating to the request. The recommendation shall include a recommended action by the board of adjustment or a statement that the planning and development services department has no objection to the request.
(2) Advisory board review. Variance requests from the Environmental Resource Zone regulations require review by the design review board (DRB) and the stormwater technical advisory committee (STAC) as provided in LUC section 2.8.8.6. Variance requests from Scenic Corridor Zone (SCZ), the Gateway Corridor Zone, the landscaping and screening regulations, and the native plant protection regulations require DRB review as provided in LUC sections 2.8.2.14, 2.8.4.5, 3.7.7.5, and 3.8.8.3, respectively.
(3) Board of adjustment public hearing. The board of adjustment shall hold a public hearing in accordance with the following and the board of adjustment's rules and regulations.
a. Notice of the public hearing shall be provided at least fifteen (15) and no more than thirty (30) days before the date of the public hearing to all parties who received notice of the application. Notice shall be provided in the same manner as the application. The notice of the public hearing may be consolidated with the notice of the application.
b. Except as permitted in the public hearing and the procedures for submission of written materials, no person shall communicate with a member of the board of adjustment regarding a matter to be decided by the board any time prior to the expiration of the time for reconsideration of a decision.
c. The chair of the hearing body or person presiding may administer oaths and may compel the attendance of witnesses and the production of relevant information, including witnesses requested by any party.
d. The chair or person presiding may impose any reasonable limitations on the number of speakers heard and may establish the nature and length of testimony by speakers.
e. Comments may be given by any person, either verbally or in writing.
f. Following the close of the hearing and prior to making a decision or recommendation, the hearing body may discuss the matter and further question staff or any party submitting comment.
g. A record of the hearing is made and retained as a public record.
(4) Board of adjustment decision. The board of adjustment may close the public hearing or continue it to a specific date, time, and place provided the continuance is not for more than one hundred twenty (120) days. The board of adjustment shall issue a decision in accordance with the findings required for approval of the application at the conclusion of the public hearing.
(5) Notice of decision. Notice of the decision shall be mailed within three (3) days of the decision to the applicant and any persons requesting the notice.
(6) Reconsideration. The board of adjustment may consider one request for reconsideration by the applicant or a party of record, provided:
a. A written request is filed with the zoning administrator within fourteen (14) calendar days after the board has rendered its decision, and
b. The request is based upon new evidence or materials which were not presented and could not reasonably have been presented at the public hearing on the case.
(7) Change of condition. After a DDO or a variance has been granted by the board, the property owner/applicant may request a change to a condition for approval as imposed by the board based upon changed circumstances which affect the condition. The request shall be heard by the board and the board shall initially determine whether the request if for a minor change of condition that does not materially alter the variance and does not materially affect any other properties. If the board determines that the request is for a minor change of condition, it may decide whether to approve or deny the change. If the board determines that the request is not a minor change of condition and there are reasonable grounds for the request, the case shall be scheduled for a public hearing and notice provided in conformance with this section.
(Ord. No. 9967, § 9, 5-17-04; Ord. No. 10295, § 3, 6-27-06; Ord. No. 10655, § 4, 4-21-09, eff. 7-1-09)
Applications for special exception land uses that are decided by the zoning examiner, "zoning examiner special exceptions", and for expansions of nonconforming uses and substitutions of nonconforming uses (uses not within the same land use class) shall be decided by the zoning examiner in accordance with the pre-application conference, neighborhood meeting, application, notice, public comment, review and denial of plan appeal shall be in conformance with section 23A-50 and the following.
(1) Director's recommendation. The director shall prepare a recommendation and forward it to the applicant and the zoning examiner not less than fifteen (15) days prior to the scheduled public hearing.
(2) Zoning examiner's public hearing. The public hearing shall be held before the zoning examiner within seventy (70) days of acceptance of the application. Public hearings are held in accordance with the following and the zoning examiner's rules and procedures.
a. Notice of the public hearing shall be provided at least fifteen (15) and no more than thirty (30) days before the date of the public hearing to all parties who received notice of the application. The notice of the public hearing may be consolidated with the notice of the application.
b. The zoning examiner may administer oaths and may compel the attendance of witnesses and the production of relevant information, including witnesses requested by any party.
c. The zoning examiner may impose any reasonable limitations on the number of speakers heard and may establish the nature and length of testimony by speakers.
d. Comments may be given by any person, either verbally or in writing.
e. A record of the hearing is made and retained as a public record.
(3) Conduct of the zoning examiner. The zoning examiner shall have the ability to obtain information from all parties, including public agencies, prior to the public hearing, provided all requests for information are in writing and the request and information are included as part of the public record. The zoning examiner shall also have the ability, after the close of the public hearing, to obtain additional information or clarify information presented and of record at the hearing provided the request for additional information or clarification is requested in writing and such request and information are included as part of the record or in the report to the mayor and council.
Beyond these limitations, the zoning examiner shall not communicate, directly or indirectly, with any party or party's representative in connection with any issue involved with a particular request, except upon notice and opportunity for all parties to participate; use or rely upon any communication, report, staff memorandum, or other material prepared in connection with the particular case, unless it is made a part of the record; or inspect the site with any party or party's representative, unless all parties are given an opportunity to be present.
(4) Zoning examiner's decision. The zoning examiner may close the public hearing or continue the public hearing to a specified time, date and place provided the continuance is not for more than thirty (30) days. Within five (5) days of the close of a hearing, the zoning examiner shall make a decision to approve, approve with conditions, or deny the application.
(5) Notice of decision. Notice of the decision on an application shall be mailed within three (3) days of the decision to the applicant and all persons who request the notice.
(6) Appeal. The zoning examiner's decision may be appealed by a party of record to the mayor and council in accordance with section 23A-62 by submitting a notice of intent to appeal to the city clerk within fourteen (14) days from the date of the decision with a copy delivered to PDSD. The complete appeal materials must be filed within thirty (30) days of the decision.
(7) Change of condition. An applicant may request a change in a condition of approval of a zoning examiner special exception land use. The request shall be reviewed by staff for recommendation to the zoning examiner. The request shall then be considered at a public hearing in accordance with subsections 3, 4, 5, 6, 7 and 8 above.
(Ord. No. 9967, § 9, 5-17-04; Ord. No. 10655, § 4, 4-21-09, eff. 7-1-09)
Where a permitted, secondary or special exception land use is designated in the LUC as subject to suspension or revocation for failure to conform to adopted conditions and there is reason to believe that it is being operated in a manner that violates the conditions imposed for the use, the use may be suspended or revoked as follows:
(1) Determination by the zoning administrator. Upon receipt of information establishing a reasonable grounds for determining that a conditional use is operating in violation of established conditions, the zoning administrator shall initiate such further investigation as may be necessary and, based upon that investigation, shall determine if a violation of the conditions exists.
(2) Notice of violation. Upon determination that a violation of conditions exists, the zoning administrator shall notify the property owner and all other parties who may be identified with the operation of the use of the determination that a violation exists. The notice shall state the facts that support the determination. The notice shall further state that the use may be suspended, subject to additional conditions or revoked if the property is not brought into compliance with all use conditions. The determination shall not be final until a period of fourteen (14) days from the date it is issued or until an appeal to the board of adjustment has been completed.
(3) Appeal to the board of adjustment. A party who has received a determination that a conditional use will be suspended, subject to additional conditions or revoked, may appeal that decision by filing a notice of appeal with the zoning administrator within fourteen (14) days of the date of the decision. The appeal shall state the reasons for the appeal. Upon receipt of such a notice, the zoning administrator shall schedule a public hearing before the board of adjustment to consider the appeal.
(4) Public notice. Public notice shall be provided in accordance with section 23A-50.
(5) Public hearing. The board of adjustment shall conduct a public hearing to determine whether the use has complied with required conditions. The board of adjustment shall determine whether the zoning administrator's decision is supported by evidence in the record at the hearing. The board of adjustment may affirm, reverse or modify the decision of the zoning administrator and may place additional or different conditions upon the use.
(6) Final decision. Where no appeal is filed or the board of adjustment affirms or modifies the decision of the zoning administrator, a determination shall become final. Failure to comply with a final order shall be a continuing violation of the Land Use Code for each day of operation that is not in full compliance.
(7) Notice of decision. Notice of the decision on an application shall be mailed within three (3) days of the decision to the applicant and all persons who request the notice.
(Ord. No. 9967, § 9, 5-17-04; Ord. No. 10387, § 4, 4-10-07)
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