3.5.3.   ZONING EXAMINER LEGISLATIVE PROCEDURE
   A.   Applicability
   The Zoning Examiner legislative process includes both Zoning Examiner review and Mayor and Council actions. The following applications are processed in accordance with the Zoning Examiner Legislative Procedure:
      1.   Original zoning for newly annexed areas;
      2.   Amendments to the zoning of specific properties including changes in the zoning classifications (rezoning);
      3.   Rezonings to the Planned Area Development (PAD) (see Section 3.5.5 for additional requirements);
      4.   Rezonings to the Planned Community District (PCD) (see Section 3.5.6 for additional requirements);
      5.   Rezoning of properties to establish an overlay (e.g., Neighborhood Preservation and Urban Overlay District); and,
      6.   Certain special exceptions.
   B.   Pre-Application Conference Required
      1.   A pre-application conference with staff is required in accordance with Section 3.2.1.
      2.    staff will also make a preliminary determination of whether the proposal complies with the goals and policies of the and any applicable , including Area and Neighborhood Plans. The applicant may request that the PDSD provide the determination of plan compliance in writing prior to submittal of an application.
      3.   Review is on a conceptual basis, therefore, comments made at a pre-application conference are advisory and do not constitute approval or denial of the .
   C.   Neighborhood Meeting Required
      1.   The applicant shall offer to meet at a specified time and place to discuss the proposed in compliance with Section 3.2.2. For rezonings initiated by the Mayor and Council, a neighborhood meeting may be conducted as part of a broader public outreach process facilitated by the PDSD and other departments as needed.
      2.   For Concurrent and Rezoning Applications, a representative of PDSD staff shall attend the Neighborhood Meeting to provide an overview of the Concurrent and Rezoning process and the area and/or neighborhood plans affected.
      3.   Exception. For the designation or amendment to a Historic Preservation , the offer to meet shall be made no more than one year before the Zoning Examiner public hearing;
   D.   Application Requirements
      1.   General
      See the Administrative Manual for application submittal requirements. Applications are reviewed for completeness in compliance with Section 3.2.3.A.
      2.   Initiation
      A rezoning may be initiated by the property owner or the owner’s agent upon submittal of a written application to amend the zoning on the property. A rezoning may also be initiated by a majority vote of the Mayor and Council.
      3.    Determination
      Rezoning applications must be in with adopted plan policies before a rezoning application may be accepted for processing. A determination of plan compliance shall be made in one of the following three ways.
      Rezoning applications must be in with adopted plan policies before a rezoning application may be accepted for processing; except for Concurrent and Rezoning Applications, as provided in Section 3.5.3.D.3.d below. A determination of plan compliance shall be made in one of the following three ways.
         a.   Plan Compliance Determination
            (1)   Prior to submittal of a rezoning application, the PDSD will provide the applicant with a preliminary determination of plan compliance at the pre-application conference.
            (2)   Prior to submittal of a rezoning application, the applicant may request in writing that the PDSD provide a written determination of plan compliance.
         b.   Determination by the PDSD after Application for Rezoning
         Upon submittal of an application for rezoning, the PDSD shall provide a written determination of plan compliance to the applicant. If the proposal is found to comply with the applicable plans, the rezoning application is formally accepted. If the determines a is necessary, no further formal processing of the application may occur until the applicant requests a in accordance with Section 3.6, Plan Adoption and Amendment Procedures. A written notice of decision shall be provided if it is determined that a is required.
         c.   Appeal of Determination
   The PDSD ’s decision that a is required may be appealed to the Mayor and Council. The appeal must be submitted in writing to the PDSD within ten of the effective date of the PDSD ’s decision. Appeals shall be processed in accordance with Section 3.9.2, Mayor and Council Appeal Procedure. An appeal stays all processing until the appeal is heard and decided.
         d.   Applicant's Option for Concurrent Plan Amendment and Rezoning Applications
            In any instance where the PDSD determines that a is necessary for a rezoning application to proceed, the applicant may elect to proceed with concurrent applications for a and rezoning. An applicant who elects to proceed with concurrent and rezoning applications shall submit documentation to PDSD of the intent to utilize this option prior to the required combined Neighborhood Meeting, and is responsible for all fees associated with each process, and the applications are subject to all of the requirements of each process, unless stated otherwise. An applicant who elects to proceed with concurrent applications is deemed to acknowledge that the rezoning application cannot be approved unless the application is approved; and that approval of the application does not guarantee approval of the rezoning application, which is a separate legislative decision.
   E.   Notice of Application
   Notice is required as follows:
      1.   Mailed Notice
         a.   Notice must be sent to those individuals and in accordance with Section 3.2.4.B.6. Notice shall also be sent to all parties of record on a previous hearing on the same application.
         b.   See Section 3.2.4.B.3 for the mailed notice’s content requirements.
      2.   Posted Notice
      Notice shall be posted on the subject in accordance with Section 3.2.4.F, Posted Notice.
   F.   Review
   Review is conducted by the PDSD staff and other agencies, committees or advisory boards as required by the and as may be deemed appropriate by the PDSD .
   G.   Changes to the Rezoning Application
   If the applicant proposes changes to the rezoning application, including any supporting materials, after the application has been accepted for processing, the PDSD shall determine whether or not the proposed changes are significant enough to require additional staff or agency review.
      1.   If the changes require additional review, the changes may be accepted only if the revised application is submitted prior to the legal advertisement and public notification of the public hearing and the changes are accompanied by the applicant’s written consent to begin anew the process from the date of submittal of the revised application.
      2.   Upon submitting a significant change to the rezoning application, the applicant shall also submit a signed letter waiving the 70-day public hearing requirement to allow for proper staff evaluation of the new information.
      3.   Once the public hearing has been advertised, any request to delay the public hearing or to change the application must be submitted to the Zoning Examiner for determination. If the public hearing is delayed, the applicant shall remit to the an additional rezoning public notice label fee to provide mailed notice to neighbors of canceled public hearing and the rescheduled public hearing date), and an additional public hearing legal advertisement fee. If the rescheduled public hearing date cannot be determined when the notice of cancellation is mailed to neighbors, a second public hearing notice label fee must be paid by the applicant to provide the required notice to the neighboring property owners.
   H.   Planning and Development Services Department (PDSD) Recommendation
   After departments and public service agencies have reviewed and provided comment on the application, a staff report is prepared by the PDSD. The report is distributed to the Zoning Examiner and the principals named in the application. Owners of property located within 400 feet of the rezoning are notified of the public hearing and provided a web link to the staff report and other materials associated with the case. The staff report and the notice of public hearing are made available to the public at least 15 prior to the public hearing.
   I.   Public Hearing
      1.   Applications reviewed under this procedure are considered by the Zoning Examiner at a public hearing(s) for recommendation to the Mayor and Council.
      2.   Original Zoning
      Upon the effective date of annexation of property into the , the may adopt original zoning or may continue the existing zoning for a period not to exceed six months. The original zoning shall only be initiated by the Mayor and Council. Notice of initiation must be provided in with A.R.S. § 9-462.04.A and the notice requirements of Section 3.2.4. A case that establishes original zoning may be initiated any time after the filing of a blank petition for annexation of the subject property with the office of the Pima County Recorder in accordance with law.
      3.   Zoning Examiner Public Hearing
      The Zoning Examiner shall hold a public hearing on behalf of the Mayor and Council on applications for a change of zoning and on applications for Mayor and Council Special Exception Land Uses in accordance with the Zoning Examiner's Rules and Procedures and as provided below. The public hearing procedures set forth in this section is used for both types of applications. The public hearing must be held  within 70 of acceptance of the application, except for applications for original zoning. For Concurrent and Rezoning applications the public hearing must be held within 180 days of acceptance of the application.
         a.   Conduct of the Public Hearing
            (1)   The Zoning Examiner is empowered to obtain information from all parties and interested , 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 also has the authority, after the close of the public hearing, to obtain additional information or clarification of information that has been presented. Any such request shall be in writing and the request and response shall be included as part of the record or report to the Mayor and Council. The Zoning Examiner may close the public hearing, or may continue the  hearing to a specified date, time and place. However, a continuance may not be for more than 30 .
            (2)   Except as permitted in subsection (1) above, the Zoning Examiner shall not communicate, directly or indirectly, with any , any ’s representative or any interested in connection with any issue involved with a particular request, except upon notice and opportunity for all parties to participate, or, use, or rely upon any communication, report, staff memorandum, or other material prepared in connection with the particular case, unless it is made part of the record. Any and all written information received by the Zoning Examiner in the case must be made a part of the record. The Zoning Examiner may inspect the provided all parties are given an opportunity to be present.
         b.   Zoning Examiner’s Preliminary Recommendation
         The Zoning Examiner shall issue a report with preliminary findings and a preliminary recommendation within five after the close of a hearing. The preliminary recommendation is provided to the applicant, the PDSD and to any who has requested a copy of the preliminary recommendation.
         c.   Reconsideration
         Any may request that the preliminary recommendation be reconsidered or that the public hearing be reopened if there are errors of fact or procedure. The request shall the alleged errors of fact or procedure and must be submitted to the Zoning Examiner within five after the date of the preliminary recommendation. The Zoning Examiner must take action on the request within five following the receipt of a request for reconsideration. Action on the request includes revising the preliminary recommendation, reopening the public hearing, or denying the request.
         d.   Final Recommendation
         Within 14 (or 19 days if a reconsideration of the preliminary recommendation is requested in accordance with Section 3.5.3.J.3.c) following the close of the public hearing or the re-opened public hearing, the Zoning Examiner shall issue and transmit a final recommendation to the Mayor and Council for final action. If the Zoning Examiner determines that minor corrections to the preliminary recommendation are appropriate in response to a request for reconsideration, such corrections may be incorporated into the final recommendation without further proceedings. No further requests for reconsideration are permitted. If the Zoning Examiner determines that a significant change to the preliminary recommendation is appropriate, the public hearing must be reopened with notice provided to all who received the previous preliminary recommendation.
         e.   Reopening of the Public Hearing
         If the public hearing is reopened, the new hearing must be held within 40 of the close of the last public hearing. Notice of the reopened hearing is the same as the notice for the original public hearing. If the public hearing is reopened at the request of a , or to consider new information from a , the Zoning Examiner may require that the pay the costs for the re-opened public hearing. At the conclusion of the reopened hearing, the issuance of a preliminary recommendation, the time period for reconsideration, the issuance of a final recommendation and the time periods for each shall be the same as for the original hearing.
         f.   Mayor and Council Public Hearing Request
         Any may request that the application be heard at a public hearing before the Mayor and Council if the request is filed with the City Clerk within 14 after the date of the Zoning Examiner’s public hearing or reconsideration public hearing. The Mayor and Council may also decide to conduct a public hearing without a specific request. If a public hearing is requested, notice must be provided in the same manner as the notice provided for the Zoning Examiner’s public hearing.
   J.   Mayor and Council Action
      1.   Mayor and Council Public Hearing Request
      Any may request that the application be heard at a public hearing before the Mayor and Council if the request is filed with the City Clerk within 14 after the date of the Zoning Examiner’s public hearing or reconsideration public hearing. The Mayor and Council may also decide to conduct a public hearing. If a public hearing is requested, notice must be provided in the same manner as the notice provided for the Zoning Examiner’s public hearing.
      2.   Authorization for Change of Zoning (Rezoning)
      Where a change in zoning is requested based upon a preliminary , the Mayor and Council may make a preliminary determination to authorize the applicant to proceed with the case.
         a.   Authorization for the Application to Proceed
         A vote by the Mayor and Council to authorize a change of zoning case constitutes authorization for the applicant to proceed, subject to the applicant’s subsequent demonstration of compliance with any special conditions that may have been established by the Mayor and Council. Unless the Mayor and Council state a shorter time period, the applicant must complete all conditions of approval within five years from the date the request is authorized.
         b.   Discretion of the Mayor and Council
         An authorization for a change of zoning is preliminary and does not in any way limit the legislative discretion of the Mayor and Council to determine whether or not to adopt a change of zoning ordinance or to add conditions thereto at the time an ordinance is presented for adoption. Authorization does not establish any vested right to the authorized zoning prior to ordinance adoption.
      3.   Direct Ordinance Adoption
      Where a change of zoning application includes a or a proposed that provides sufficient specific details to demonstrate compliance with all conditions that may be required by the Mayor and Council and is in compliance with this Section, the application may proceed from staff review to Mayor and Council ordinance adoption without a separate Mayor and Council authorization to proceed with the application.
         a.   Mayor and Council Actions
         The Mayor and Council shall consider the change of zoning application, the Zoning Examiner’s recommendation, and the City Manager’s recommendation in a public meeting or a public hearing. The Mayor and Council may authorize the case to proceed; may modify, delete or add to the proposed conditions for approval; may remand the case to the Zoning Examiner for further proceedings; may adopt an ordinance changing the zoning, deny the application; or may take other appropriate action.
         b.   Davis Monthan AEZ Comments
         If Davis Monthan Air Force Base submits comments to the on any application concerning the of the proposed rezoning with the high-noise, accident potential , or that may have an adverse impact on the operation of the base or upon public health and safety, a public hearing shall be held to consider these and other comments per requirements of the A.R.S.
      4.   Mayor and Council Adoption of the Change of Zoning
         a.   If an application substantially demonstrates compliance with the conditions for a change of zoning, staff shall prepare an ordinance to be submitted to the Mayor and Council for adoption enacting the change in zoning.
         b.   For a that is to be completed in phases, the Mayor and Council may adopt a separate ordinance for each phase of the , but only if each phase submitted for approval can meet all required conditions and codes without reliance on future phases.
      5.   Voting Requirements for Adoption of Ordinance
      Ordinance adoption of a change of zoning is granted by a simple majority vote of the governing body unless the requirements of A.R.S. 9-462.04(H) are met. If the requirements of A.R.S. 9-462.04(H) are met, then a three-fourths vote of the governing body is required for adoption of the ordinance.
         a.   The entire area of the or within the subject ; or,
         b.   Property in any one of the following quadrants: north, south, east, west, that is located within 150 feet of the rezoning , excluding public the subject .
      6.   Ordinance Effective Date
      Ordinances granting changes in zoning are, by statute, subject to referendum and shall not become effective until 30 after the date of adoption or the date the final ordinance is available from the City Clerk, whichever is later. The effective date of the ordinance is not necessarily the effective date of the change of the zoning (rezoning). The effective date of the change of zoning is when compliance with conditions of approval is completed and certified by the PDSD . No permits or approvals may be granted that are in furtherance of the rezoning request until the 30 have lapsed and the conditions of rezoning have been met.
      7.   Reconsideration
      A member of the Mayor and Council may request the reconsideration of an authorization decision or decision on a proposed ordinance provided the vote to reconsider is made within 30 of the date of decision. A hearing for reconsideration will be scheduled upon a majority vote in favor of the reconsideration. If the reconsideration occurs after the meeting when the decision is initially made, then public notice of the reconsideration must be given in the same manner as for the initial decision.
(Am. Ord. 11070, 5/14/2013; Am. Ord. 11127, 11/6/2013; Am. Ord. 11729, 2/19/2020; Am. Ord. 11732, 2/19/2020)