Publisher's Note: This Section has been AMENDED by new legislation (Ord. 23-27
). The text of the amendment will be incorporated below when the ordinance is codified.
A. Conditional Use Permit Required: No structure, building or land shall be used, constructed, altered or expanded where a conditional use permit is specifically required by the terms of these regulations until a conditional use permit for the use has been authorized by the City Council and issued by the Zoning Administrator.
B. Continuation Of Conditional Use Permit: Any use which was lawfully established prior to the adoption, extension or application of these regulations and the use is now permitted by these regulations subject to a conditional use permit, may continue in the same manner and to the same extent as conducted prior to the adoption or extension of these regulations without securing a conditional use permit; provided that before the structure or building in which the use is conducted may be altered, added to, enlarged, expanded or moved from one location to another on the lot, or before the use may be expanded within the building or extended over the lot on which the use is located, a conditional use permit shall be secured from the Zoning Administrator.
C. Alter Or Enlarge Structures: Structures or buildings devoted to any use which is permitted under the terms of these regulations, subject to the securing of a conditional use permit, may be altered, added to, enlarged, expanded or moved from one location to another on the lot only after securing a new conditional use permit.
D. Application:
1. Application for a conditional use permit may be made by the owner of the affected property, or his designated agent, on a form obtainable from the Zoning Administrator.
2. The completed application and fee as set by the City Council shall be submitted to the Zoning Administrator or his designee. The fee is not refundable. (Ord. A-407, 3-15-1982)
3. All required conditional use permit applications and preliminary plat applications applicable to a single development project shall be submitted for review simultaneously. (Ord. 96-10, 6-17-1996)
E. Procedure For Consideration:
1. After acceptance by the Zoning Administrator or his designee, the completed application shall be transmitted to the staff of the Planning Board for their review and evaluation.
2. The planning staff shall set a public hearing date and publish a public notice which jointly advertises the public hearing before the Planning Board and the public hearing before the City Council, at least once in a newspaper of general circulation in the community, at least fifteen (15) calendar days prior to the meeting of the Planning Board at which the application is to be considered.
3. The planning staff must also mail written notice to all adjacent property owners within three hundred feet (300') of the subject property not less than fifteen (15) calendar days prior to the time of formal review by the Planning Board. Where the subject property abuts a public right-of-way, the three hundred feet (300') measurement must be in addition to the right-of-way along the abutting side.
4. A notice must be posted by the planning department in a conspicuous place on the site at least fifteen (15) working days prior to the public hearing and shall remain on the subject parcel until all the public hearings are complete. It shall be the responsibility of the applicant to ensure the sign is maintained in place and visible during the entire public review process.
5. Written comment from adjacent property owners shall be specific when maintaining that the granting of the conditional use permit would adversely or injuriously affect their personal and legal interests.
6. The Planning Board shall consider the application at its next regular meeting following the public notice process. The board shall make a recommendation to the City Council to approve, conditionally approve or deny the application.
7. Upon receipt of the recommendation of the Planning Board, the City Council shall hold a public hearing and render a determination whether to approve, conditionally approve or deny the application for a conditional use permit based on public input, the staff report and findings of the Planning Board.
8. Should a decision not be rendered by the City Council within ninety (90) days after acceptance of the completed application by the Zoning Administrator and the payment of the appropriate fee, the application shall be deemed approved unless the time limit has been extended by an agreement between the Zoning Administrator and the applicant.
F. Approval Of Application, Granting Of Conditional Use Permit: Upon rendering a decision to grant a conditional use permit, with or without stipulations or conditions that must be adhered to by the applicant, the City Council shall notify the Zoning Administrator of their decision, and he shall issue a conditional use permit, with stipulations if any referred to and itemized in brief on the face of the permit. The application and all subsequent information, correspondence, evaluations, recommendations and decisions shall then be placed on permanent file in the Office of the Zoning Administrator.
G. Revocation: In the event of a violation of any of the provisions of these regulations or its amendments, or in the event of a failure to comply with any prescribed condition of approval or stipulations placed upon approval, the Zoning Administrator shall suspend any conditional use permit immediately, notify the City Council and set a date for hearing to determine if the suspensions shall be lifted or if the conditional use permit shall be revoked. The City Council shall be the hearing body. In the case of a revocation of a conditional use permit, the determination of the City Council shall be final, unless recourse is sought in a court of record.
H. Termination And Transferability: Once granted, a conditional use permit with its terms and conditions, shall:
1. Run with the lot, building, structure or use and shall not be affected by changes in ownership.
2. Terminate eighteen (18) months from date of authorization if commencement of the authorized activity has not begun:
a. Unless otherwise spelled out in the conditions of approval; or
b. Unless the applicant can demonstrate and maintain a continuous good faith effort (preparing financing, securing State or Federal permits, undertaking engineering and design, etc.) in commencing the activity.
I. Denial Of Application:
1. In the event an application is denied by the City Council, no resubmittal of an application for a conditional use permit may be made for one year from the date of denial, unless sufficient new evidence or conditions are offered to the Zoning Administrator to demonstrate to him that circumstances have altered and that further consideration of the application is warranted. In such an event, the resubmitted application shall follow the same procedures as the original, and shall be treated as a new application.
2. Denial of an application for a conditional use permit may be appealed to a court of record within thirty (30) days from the date of denial. (Ord. A-407, 3-15-1982)
J. Criteria Required For Consideration Of A Conditional Use Permit (CUP): A CUP may be granted only if the proposal substantially conforms to all of the following criteria standards:
1. Growth policy compliance. The proposal conforms to applicable goals and policies of the Whitefish city-county growth policy.
2. Compliance with regulations. The proposal is consistent with the purpose, intent, and applicable provisions of these regulations.
3. Site suitability. The site must be suitable for the proposed use or development, including:
a. Adequate usable land area,
b. Access that meets the standards set forth in these regulations, including emergency access,
c. Absence of environmental constraints that would render the site inappropriate for the proposed use or development, including, but not necessarily limited to, floodplains, slope, wetlands, riparian buffers/setbacks, or geological hazards.
4. Quality and functionality of design. The site plan for the proposed use or development has effectively dealt with the following design issues as applicable:
a. Parking locations and layout,
b. Traffic circulation,
c. Open space,
d. Fencing/screening,
e. Landscaping,
f. Signage,
g. Undergrounding of new utilities, and
h. Undergrounding existing overhead utilities based on scope and scale of project.
5. Availability and adequacy of public services and facilities. The following services and facilities are available and adequate to serve the use or development as proposed and as applicable:
a. Sewer,
b. Water,
c. Storm water,
d. Fire protection,
e. Police protection,
f. Streets (public or private),
g. Parks (residential only),
h. Sidewalks, and
i. Bike/pedestrian ways (including connectivity to existing and proposed developments and destinations off site).
6. Neighborhood/community impact. The proposed use or development will not have detrimental effects on adjacent properties, nearby neighborhoods, and the community in general. Adverse impacts may include, but are not necessarily limited to:
a. Excessive traffic generation and/or infiltration of neighborhoods,
b. Noise or vibration,
c. Dust, smoke, glare or heat,
d. Smoke, fumes, gas or odors, and
e. Hours of operation.
7. Neighborhood/community compatibility. The use or development is compatible with the surrounding neighborhood and community in general in terms of:
a. Structural bulk and massing,
b. Scale,
c. Context of existing neighborhood,
d. Density, and
e. Community character. (Ord. 07-05, 3-5-2007)
K. Burden On Applicant: The burden of proof for satisfying the aforementioned criteria considered for approval shall rest with the applicant and not the City Council. The granting of a conditional use permit is a matter of grace, resting in the discretion of the City Council and a refusal is not the denial of a right, conditional or otherwise.
L. City Council Decision Based On Findings: Every decision of the City Council pertaining to the granting, denial or amendment of a request for a conditional use permit shall be based upon findings of fact, and every finding of fact shall be supported in the records of its proceedings. The enumerated conditions as provided for in subsection J of this section, required to exist in any matter upon which the City Council is required to pass under these regulations shall be construed as a limitation on the power of the City Council to act in the matter of the issuance of conditional use permits. A mere finding or recitation of the enumerated conditions unaccompanied by findings of specific fact shall not be deemed in compliance with these regulations. (Ord. A-407, 3-15-1982)
M. Administrative Conditional Use Permit Required: An administrative conditional use permit must be obtained by the property owner when specifically required by this title or for minor amendments to an already approved conditional use permit. In no case, may a project requiring a standard conditional use permit be allowed to utilize the administrative conditional use permit process.
1. Application:
a. Application for an administrative conditional use permit shall be made on forms provided by the Zoning Administrator.
b. A completed application and fee as set by the City Council shall be submitted to the Zoning Administrator or designee. The fee is nonrefundable.
2. Procedures For Consideration:
a. Once the application is deemed complete, the planning staff shall:
(1) Notify in writing each property owner on a list certified by Flathead County of owners of record within three hundred feet (300') of the subject parcel excluding any right-of-way by regular mail at least fifteen (15) working days prior to the issuance of the permit. The notice shall include a site plan and City staff contact information. The notice shall also include instructions for submitting public comments and a deadline for submitting such comments.
(2) Publish a public notice once in a newspaper of general circulation in the community at least fifteen (15) working days prior to the issuance of the permit.
b. Written comments from adjacent property owners expressing concerns or objections, if any, shall be specific stating the granting of the conditional use permit would adversely or injuriously affect their personal and/or legal interest.
c. If there are concerns that cannot be mitigated through standard conditions of approval, a public hearing before the Planning Board and City Council shall be scheduled according to the process outlined in subsection E of this section.
d. If it appears the administrative conditional use permit is being used to avoid the standard conditional use permit process through phasing or other means, the Zoning Administrator may schedule the matter before the Planning Board and City Council according to the process outlined in subsection E of this section. (Ord. 19-11, 6-3-2019; amd. Ord. 19-25, 12-16-2019)