Section 155.4.5  Conditional Use Permits.
   155.4.5.1  Purpose and Applicability. This Ordinance provides for a number of uses to be located by right in each general zoning district subject to the use meeting certain area, height, yard, and off-street parking and loading requirements. In addition to these uses, this Ordinance allows some uses to be allowed in these districts as a conditional use subject to issuance of a conditional use permit by the Board of Aldermen upon recommendation of the Planning Board. The purpose of having the uses being conditional is to ensure that they would be compatible with surrounding development and in keeping with the purposes of the general zoning district in which they are located and would meet other criteria as set forth in this section. All conditional use permits require some form of a site plan as outlined in Section 155.5.3.
   155.4.5.2  Application Process/Completeness.
   (A)   The deadline for which a conditional use permit application shall be filed with the UDO Administrator is the first business day of the month in the month prior to the meeting at which the application will be heard. Permit application forms shall be provided by the UDO Administrator.
      In the course of evaluating the proposed conditional use, the Planning Board or Board of Aldermen may request additional information from the applicant. A request for any additional information may stay any further consideration of the application by the Planning Board or Board of Aldermen.
   (B)   No application shall be deemed complete unless it contains or is accompanied by a site plan drawn to scale which complies with the requirements contained in Section 155.5.3 and a fee, in accordance with a fee schedule approved by the Board of Aldermen for the submittal of conditional use permit applications.
   (C)   One (1) hard copy and one (1) digital copy of an application, and all attachments and maps, for a conditional use permit shall be submitted to the UDO Administrator.
   155.4.5.3  Technical Review Procedure/Planning Board Review and Comment.
   (A)   All applications for a conditional use permit, including required site plans, shall follow the technical review procedure (Article 155.3, Part II) before being submitted to the Planning Board for review and comment. The UDO Administrator shall forward any comments received during the technical review process to the Planning Board.
   (B)   The Planning Board may, in its review, suggest reasonable conditions to the location, nature, and extent of the proposed use and its relationship to surrounding properties, parking areas, driveways, pedestrian and vehicular circulation systems, screening and landscaping, timing of development, and any other conditions the Board may find appropriate. The conditions may include dedication of any rights-of-way or easements for streets, water, sewer, or other public utilities necessary to serve the proposed development.
   (C)   The Planning Board shall forward its recommendation to the Board of Aldermen within 45 days of reviewing the application. If a recommendation is not made within 45 days, the application shall be forwarded to the Board of Aldermen without a recommendation from the Planning Board.
   (D)   All comments prepared by the Planning Board shall be submitted by the UDO Administrator. This representative of the Planning Board shall be subject to the same scrutiny as other witnesses. Review of the conditional use application by the Planning Board shall not be a quasi-judicial procedure. The Planning Board shall include in its comments a statement as to the consistency of the application with the Town's currently adopted Comprehensive Plan. Comments of the Planning Board shall be considered with other evidence submitted at the public hearing.
   155.4.5.4  Board of Aldermen Action.
   (A)   Conditional use permits are quasi-judicial decisions approved by a simple majority vote of the Board of Aldermen. Quasi-judicial decisions must be conducted in accordance with Sections 155.4.4.9 through 155.4.4.12. For the purposes of this section, vacant positions on the Board and members who are disqualified from voting on a quasi-judicial matter shall not be considered “members of the Board” for calculation of the requisite majority if there are no qualified alternates available to take the place of such members.
   (B)   Once the comments of the Planning Board have been made, or the 45-day period elapses without a recommendation, the Board of Aldermen shall hold a public hearing to consider the application at its next regularly scheduled meeting. A quorum of the Board of Aldermen is required for this hearing. Notice of the public hearing shall be as specified in Section 155.4.4.6. In addition, notice shall be given to other potentially interested persons by publishing a notice one time in a newspaper having general circulation in the area not less than ten nor more than twenty-five days prior to the hearing.
   (C)   In approving an application for a conditional use permit in accordance with the principles, conditions, safeguards, and procedures specified herein, the Board of Aldermen may impose reasonable and appropriate conditions and safeguards upon the approval. The petitioner will have a reasonable opportunity to consider and respond to any additional requirements prior to approval or denial by the Board of Aldermen. In no instance shall any of these conditions be less restrictive than any requirements which would pertain to that particular development found elsewhere in a similar zoning district.
   (D)   The applicant has the burden of producing competent, material and substantial evidence tending to establish the facts and conditions which subsection 155.4.5.4(E) below requires.
   (E)   The Board of Aldermen shall issue a conditional use permit if it has evaluated an application through a quasi-judicial process and determined that:
      (1)   The establishment, maintenance, or operation of the conditional use will not be detrimental to or endanger the public health, safety, or general welfare.
      (2)   The conditional use will not be injurious to the use and enjoyment of other property in the immediate vicinity for the purposes already permitted, nor diminish or impair property values within the neighborhood.
      (3)   The establishment of the conditional use will not impede the normal and orderly development and improvement of the surrounding property for uses permitted in the district.
      (4)   The exterior architectural appeal and functional plan of any proposed structure will not be so at variance with either the exterior architectural appeal and functional plan of the structures already constructed or in the course of construction in the immediate neighborhood or the character of the applicable district, as to cause a substantial depreciation in the property values within the neighborhood.
      (5)   Adequate utilities, access roads, drainage, parking, or necessary facilities have been or are being provided.
      (6)   Adequate measures have been or will be taken to provide ingress and egress so designed as to minimize traffic congestion in the public streets.
      (7)   The conditional use shall, in all other respects, conform to all the applicable regulations of the district in which it is located.
      (8)   Public access shall be provided in accordance with the recommendations of the Town's land use plan and access plan or the present amount of public access and public parking as exists within the Town now. If any recommendations are found to conflict, the system requiring the greatest quantity and quality of public access, including parking, shall govern.
      (9)   The proposed use shall be consistent with recommendations and policy statements as described in the adopted land use plan.
   (F)   Conditions and Guarantees. Prior to the granting of any conditional use, the Planning Board may recommend, and the Board of Aldermen may require, conditions and restrictions upon the establishment, location, construction, maintenance, and operation of the conditional use as is deemed necessary for the protection of the public interest and to secure compliance with the standards and requirements specified above. In all cases in which conditional uses are granted, the Board of Aldermen shall require evidence and guarantees as it may deem necessary as proof that the conditions required in connection therewith are being and will be complied with.
   155.4.5.5  Effect of Approval. If an application for a conditional use permit is approved by the Board of Aldermen, the owner of the property shall have the ability to develop the use in accordance with the stipulations contained in the conditional use permit, or develop any other use listed as a permitted use for the general zoning district in which it is located.
   155.4.5.6  Binding Effect. Any conditional use permit so authorized shall be binding to the property included in the permit unless subsequently changed or amended by the Board of Aldermen.
   155.4.5.7  Certificate of Occupancy. No certificate of occupancy for a use listed as a conditional use shall be issued for any building or land use on a piece of property which has received a conditional use permit for the particular use unless the building is constructed or used, or the land is developed or used, in conformity with the conditional use permit approved by the Board of Aldermen. In the event that only a segment of a proposed development has been approved, the certificate of occupancy shall be issued only for that portion of the development constructed or used as approved.
   155.4.5.8  Change in Conditional Use Permit. An application to materially change a conditional use permit once it has been issued must first be submitted, reviewed, and approved in accordance with Sections 155.4.5.3 and 155.4.5.4, including payment of a fee in accordance with the fee schedule approved by the Board of Aldermen.
   155.4.5.9  Implementation of Conditional Use Permit. A conditional use permit, after approval by the Board of Aldermen shall expire six months after the approval date if work has not commenced or in the case of a change of occupancy the business has not opened; however, it may be, on request, continued in effect for a period not to exceed six months by the UDO Administrator. No further extension shall be added except on approval of the Board of Aldermen. If such use or business is discontinued for a period of 12 months, the conditional use permit shall expire. Any expiration as noted or any violation of the conditions stated on the permit shall be considered unlawful and the applicant will be required to submit a new conditional use application to the appropriate agencies for consideration and the previously approved conditional use permit shall become null and void.
(Ord. 1695, passed 11-8-12)