Ashton City Zoning Code
CHAPTER 17
16 ADMINISTRATIVE PROCEDURES
17.16.010: PURPOSE:
This chapter requires a permit for all land development and building activity in the city and establishes procedures for the administration of this title. (Ord. 459-13, 2013)
17.16A.010: PERMIT REQUIRED:
A permit shall be required for any division of land; any clearing, grading, construction, or reconstruction; and any change in land use, except as specifically exempted by sections 17.16A.020 and 17.16A.030 of this article.
A. A class I permit shall be required for:
1. Any lot split or plat amendment;
2. Any one- or two-family dwelling;
3. Any home occupation;
4. Any accessory building or fence not exempted by section 17.16A.030 of this article;
5. Any minor change of occupancy in an existing commercial or industrial use or structure;
6. Any other development that is not exempted by section 17.16A.020 or 17.16A.030 of this article, but does not require a class II permit; and
7. Any clearing, grading, or excavation preparatory to any activity listed in subsections A1 through A6 of this section. The class I permit procedure is found at section 17.16A.070 of this article.
B. A class II permit shall be required for:
1. Any subdivision;
2. Any higher density residential development, including multi- family dwellings or manufactured home parks;
3. Any commercial or industrial development, including any major change in occupancy in an existing commercial or industrial use or structure; and
4. Any clearing, grading, or excavation preparatory to any activity listed in subsections B1 through B3 of this section. The class II permit procedure is found at section 17.16A.080 of this article. (Ord. 459-13, 2013)
17.16A.020: EXEMPTIONS FOR LAND DIVISIONS:
Exemption of a land division does not exempt development of the parcel created from compliance with this title.
A. No permit shall be required for any land division that results from the settlement of an estate or a court decree for the distribution of specific parcels of property.
B. No permit shall be required for any land division that results from a condemnation proceeding or the voluntary sale or gift of land for a public purpose.
C. No permit shall be required for platting a cemetery.
D. No permit shall be required for any land division in which all resulting parcels are one hundred sixty (160) or more acres in size. The creation of parcels between twenty (20) and one hundred sixty (160) acres in size for agricultural purposes only shall also be exempt from the requirement for a permit, but the further division or the development of any such parcel shall be preceded or accompanied by an application for a lot split.
E. No permit shall be required for the adjustment of unplatted property lines in which no new parcel is created and no nonconforming lot, parcel, use, or structure results. Plat amendments require a class I permit and approval by the council. (Ord. 459-13, 2013)
17.16A.030: EXEMPTIONS FOR CONSTRUCTION ACTIVITY:
The activities listed here are not exempt from any applicable requirement of this title, except the requirement for a permit. No permit shall be required for:
A. Clearing and grading for agricultural purposes, the maintenance and construction of irrigation works such as sprinkler systems, and grading required for the maintenance (but not change or expansion) of an existing use or structure; however, a class I permit is required for the setback measurement;
B. Repair or remodeling that does not alter the exterior dimensions of the structure involved (note that the adopted building code may require a building permit for such remodeling);
C. Accessory buildings that are also exempted from review by the adopted building code (note that this generally exempts accessory buildings of less than 200 square feet in floor area and less than 10 feet in height); however, a class I permit is required for the setback measurement;
D. Fences of six feet (6') or less in height (note that all fences must comply with the requirements of chapters 17.56 and 17.60 of this title for clear sight triangles at intersections and points of access to public streets); however, a class I permit is required for the setback measurement;
E. Minor utility installations; and
F. Certain signs. (Ord. 459-13, 2013)
17.16A.040: APPLICATION FORMS:
Applications for permits shall be submitted on forms provided by the city. All applications shall be accompanied by a site plan and all other information and maps, plans, drawings, tabulations, and calculations required to demonstrate compliance with this title. No incomplete application shall be accepted. The administrator may require submission of multiple copies of applications and supporting materials. (Ord. 459-13, 2013)
17.16A.050: APPLICATION FEES:
Application fees for each type of permit established by this title shall be established by resolution of the council. (Ord. 459-13, 2013)
17.16A.060: SITE INSPECTION:
The filing of an application for a permit constitutes permission for the city to conduct inspections of the proposed development site during its consideration of the application. The administrator may delay consideration of any application when inclement weather or a snowpack prevents a useful on site inspection. (Ord. 459-13, 2013)
17.16A.070: CLASS I PERMIT PROCEDURE:
The class I permit procedure provides for the prompt review of minor developments and plat amendments, while assuring they have no significant adverse impact on environmental quality, neighboring uses, or public facilities and services. The class I permit procedure shall be as follows:
A. Filing: The developer shall file a properly completed permit application form, the required supporting materials, and the required application fee with the administrator.
B. Compliance Determination: The administrator shall determine whether the proposed development is in compliance with the comprehensive plan and this title. If the proposed development complies, the application for a permit shall be approved. If the proposed development fails to comply, the application for a permit shall be disapproved. Where the proposed development is part of a larger development for which a class II permit was previously approved, the administrator shall also determine whether it is in compliance with the previously approved development plan and all conditions attached to that approval. Conditions may be attached to approval of any permit, as provided in section 17.16A.090 of this article.
C. Notification Of Decision: The administrator shall notify the developer of the decision within ten (10) days, except as provided in subsection F of this section.
D. Appeal: The administrator's decision on a proposed development or plat amendment may be appealed to the commission using the appeals procedure of section 17.16B.010 of this chapter. A notice of any such appeal shall be filed with the administrator within ten (10) days after notice of the decision has been issued. Developers proceed at their risk during the appeal period.
E. Additional Procedures For Plat Amendments:
1. The administrator shall determine: a) whether all lots resulting from the proposed plat amendment are capable of accommodating a use permitted by this title, and b) whether the proposed amendment affects street or utilities access to any adjoining lot or parcel. If the lots resulting from the proposed plat amendment are capable of accommodating such a use and the amendment does not adversely affect access to any adjoining lot or parcel, the administrator shall approve the application for a permit and place the proposed plat amendment on the agenda of the next regular council meeting at which time will permit its proper review. If the lots resulting from the proposed plat amendment are not capable of accommodating such a use, or the amendment adversely affects access to a lot or adjoining parcel, the administrator shall disapprove the application for a permit.
2. Plat amendments approved by the administrator shall be reviewed by the council which, if it affirms the administrator's findings, shall sign the amended plat.
F. Referral: Upon finding that a proposed development or plat amendment will have a significant adverse impact on environmental quality, neighboring land uses, or public facilities and services, the administrator may refer any application for a class I permit to the commission. The commission may, upon confirming the administrator's finding, require that the application for a class I permit be converted to an application for a class II permit. Such referrals shall be placed on the agenda of the next regular commission meeting. (Ord. 459-13, 2013)
17.16A.080: CLASS II PERMIT PROCEDURE:
The purpose of the class II permit procedure is to assure effective regulation of developments that may have significant impacts on public facilities, environmental quality, or neighboring uses. The class II permit procedure shall be as follows:
A. The developer shall file a request for sketch plan review with the administrator at least five (5) days before the meeting at which the review is requested.
1. The administrator shall place the sketch plan on the agenda of the next regular commission meeting at which time will permit its proper review.
2. The commission shall conduct a sketch plan review. A sketch plan review is not a regulatory proceeding, but an opportunity for the commission to be made aware of the proposal and for the developer to be made aware of possible questions and the applicable requirements of this title.
B. The developer shall file a properly completed application form, the required supporting materials, and the required application fee with the administrator at least thirty (30) days before the commission meeting at which a hearing on the application is requested.
C. The administrator shall place a hearing on the application on the agenda of the next regular commission meeting for which the notice requirements of subsection E of this section can be met, and at which time will permit its proper review.
D. The administrator may contract for professional review of the application, with the cost of that review being covered by the application fee. Such reviews shall be prepared in the form of a written report submitted to the administrator for use at the hearing. The administrator shall, upon its receipt, provide a copy of this report to the developer and place it on file for public review with the other application materials.
E. The content of all hearing notices shall comply with the requirements of section 17.16A.100 of this article. Notice shall be provided, as follows:
1. By first class mail; to all owners of record of property within three hundred feet (300') of the site, at least fifteen (15) days before the hearing;
2. By newspaper publication; two (2) legal notices in the official newspaper, with the first newspaper notice appearing at least fifteen (15) days prior to the hearing and the second one week later;
3. By first class mail; to all potentially affected public agencies, including the appropriate school and fire protection districts, and other interested parties on a list maintained by the administrator; and
4. By posting; at least seven (7) days before the hearing, a sign conveying the required notice shall be placed on the site. Such signs shall be clearly visible from the nearest public street and may be placed at a point of access to the site, rather than on the site where the administrator determines that so doing will provide more effective notice.
5. The actual cost of mail and newspaper notice shall be in addition to the application fee required by section 17.16A.050 of this article. No permit shall be issued until payment is received.
F. The commission shall conduct a hearing on the proposed development following the procedure established in section 17.16C.010 of this chapter. No application shall be reviewed if the developer or a representative is not present.
G. The commission shall determine whether the proposed development is in compliance with the comprehensive plan and all requirements of this title. If the proposed development complies, the application for a permit shall be approved. If the proposed development fails to comply, the application for a permit shall be disapproved. Conditions may be attached to approval of any permit, as provided in section 17.16A.090 of this article.
H. The administrator shall notify the developer and interested parties of the commission's decision within ten (10) days.
I. The commission's decision may be appealed to the council using the appeals procedure of section 17.16B.010 of this chapter. A notice of any such appeal shall be filed with the administrator within ten (10) days after notice of the decision has been issued. Developers proceed at their own risk during this appeals period.
J. The developer may file a final plat with the administrator at any time after the class II permit for a subdivision is approved. Phased final platting is permitted by section 17.68.050 of this title.
1. The administrator shall place the final plat on the agenda of the next commission meeting.
2. No public notice or hearing is required for final plats, but no final plat shall be reviewed if the developer or a representative is not present.
3. The commission shall review the final plat and determine whether it is in compliance with the subdivision permit, the comprehensive plan, and this title. If it finds that the final plat complies, it shall approve that plat and recommend that it be signed by the council. If it finds that the final plat fails to comply, it shall disapprove that plat and recommend that it not be signed by the council. Conditions may be attached to approval of a final plat, as provided in section 17.16A.090 of this article.
4. If the commission approves the final plat, the administrator shall place it on the agenda of the next regular council meeting. Commission disapproval of a final plat may be appealed to the council using the appeals procedure of section 17.16B.010 of this chapter. A notice of any such appeal shall be filed with the administrator within ten (10) days after notice of the decision has been issued.
5. The council shall determine whether the final plat is in compliance with the subdivision permit, the comprehensive plan, and this title. If it finds that the final plat complies, it shall approve that plat. If it finds that the final plat fails to comply, it shall disapprove that plat. Conditions may be attached to council approval of a final plat, as provided in section 17.16A.090 of this article.
6. The administrator shall notify the developer and interested parties of the council's decision within ten (10) days. (Ord. 459-13, 2013)
17.16A.090: CONDITIONS:
Conditions may be imposed on the approval of any permit or variance, provided those conditions are clearly designed to assure compliance with one or more specific requirements of this title, and that a list of all conditions imposed is provided to the developer with notification of the commission's or council's decision. That list shall specifically identify the provision of this title the condition is designed to implement. (Ord. 459-13, 2013)
17.16A.100: HEARING NOTICES:
A. Required Information: All required notices shall provide the following information: the name and mailing address of the developer; a legal description of the development site; the address of the development site, or another general description by which the public can identify the site; the present land use at the site; the proposed use and, for subdivisions, the proposed number of lots and average proposed lot size; the body (commission or council) that will conduct the hearing; the date, time, and place of the hearing; a statement of the availability of application materials for public review, and a statement that "public comment is encouraged".
B. Model Hearing Notices:
1. Purpose: The purpose of this subsection is to provide models for the hearing notices required by this title.
2. Notice For Class II Permit Application Hearing:
PUBLIC HEARING NOTICE - CLASS II PERMIT
John and Jane Doe of P.O. Box 22, Jackson, WY 83001 propose to subdivide (legal description) into 16 residential lots. The average density of this development will be four dwelling units per acre. The property is located on the north side of (name) Street, between (name) and (name) Streets. The present land use is cropland.
The Ashton Planning and Zoning Commission will conduct a hearing on this proposal at 7:00 P.M., Monday, March 1, 1999 at the Community Center. A copy of the application is available for public review at the city offices. Public comment is encouraged.
3. Notice Of Variance Hearing:
PUBLIC HEARING NOTICE - VARIANCE
Mr. and Mrs. J. Doe of P.O. Box 50999, Idaho Falls, ID 83405 have applied for a variance of Section . of the Ashton Development Code. The proposed variance would permit a 3 foot, 3 inch encroachment into the required side yard to permit an addition to a single-family dwelling located at 999 (name) Street.
The Ashton Planning and Zoning Commission will conduct a hearing on this proposal at 7:30 P.M., Monday, March 1, 1999 at the Community Center. A copy of the application is available for public review at the city offices. Public comment is encouraged.
(Ord. 459-13, 2013)
17.16A.110: APPROVALS VALID FOR ONE YEAR:
Permits shall be valid for one year from the date of approval, unless extended by a development agreement, as provided in section 17.68.050 of this title. (Ord. 459-13, 2013)
AS846 17.16B.txt
17.16B.010: APPEALS:
Any decision of the administrator or commission may be appealed using the procedure described herein. A notice of appeal must be filed within ten (10) days after the administrator's notice of the decision being appealed. Appeals from decisions of the administrator are heard by the commission. Appeals from decisions of the commission are heard by the council.
A. The appellant shall file a properly completed notice of appeal, the required supporting materials, and the required appeal fee with the administrator. If a notice of appeal alleges that the decision of the administrator or commission constitutes a taking of property without just compensation, the administrator shall direct the appeal to the city attorney.
B. The city attorney shall review the allegation that a decision of the administrator or commission constitutes a taking of property without just compensation. This review shall be based on the Idaho attorney general's checklist provided herein and other information the city attorney deems relevant, including the property rights policy of the plan.
1. Idaho Attorney General's Takings Checklist Criteria: Agency staff must use the following questions in reviewing the potential impact of a regulatory or administrative action on specific property. While these questions also provide a framework for evaluating the impact proposed regulations may have generally, takings questions normally arise in the context of specific affected property. The public review process used for evaluating proposed regulations is another tool that the agency should use aggressively to safeguard rights of private property owners. If property is subject to regulatory jurisdiction of multiple government agencies, each agency should be sensitive to the cumulative impacts of the various regulatory restrictions.
Although a question may be answered affirmatively, it does not mean that there has been a "taking". Rather, it means there could be a constitutional issue and that agency staff should carefully review the proposed action with legal counsel.
a. Does the regulation or action result in a permanent or temporary physical occupation of private property?
Regulation or action resulting in a permanent or temporary physical occupation of all or a portion of private property will generally constitute a "taking". For example, a regulation that required landlords to allow the installation of cable television boxes in their apartments was found to constitute a "taking". See Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419 (1982).
b. Does the regulation or action require a property owner to dedicate a portion of property or to grant an easement?
Carefully review all regulations requiring the dedication of property or grant of an easement. The dedication of property must be reasonably and specifically designed to prevent or compensate for adverse impacts of the proposed development. Likewise the magnitude of the burden placed on the proposed development should be reasonably related to the adverse impacts created by the development. A court will also consider whether the action in question substantially advances a legitimate state interest.
For example, the United States supreme court determined in Nollan v. California Coastal Commission, 483 U.S. 825 (1987), that compelling an owner of waterfront property to grant a public easement across his property that does not substantially advance the public's interest in beach access constitutes a "taking". Likewise, the United States supreme court held that compelling a property owner to leave a public greenway, as opposed to a private one, did not substantially advance protection of a floodplain, and was a "taking". Dolan v. City Of Tigard, 114 U.S. 2309 (June 24, 1994).
c. Does the regulation deprive the owner of all economically viable uses of the property?
If a regulation prohibits all economically viable or beneficial uses of the land, it will likely constitute a "taking". In this situation, the agency can avoid liability for just compensation only if it can demonstrate that the proposed uses are prohibited by the laws of nuisance or other preexisting limitations on the use of the property. See Lucas v. South Carolina Coastal Coun., 112 S. Ct. 2886 (1992).
Unlike subsections B1a and B1b of this section, it is important to analyze the regulation's impact on the property as a whole, and not just the impact on a portion of the property. It is also important to assess whether there is any profitable use of the remaining property available. See Florida Rock Industries, Inc. v. United States, 18 F.3d 1560 (Fed. Cir. 1994). The remaining use does not necessarily have to be the owner's planned use, a prior use or the highest and best use of the property. One factor in this assessment is the degree to which the regulatory action interferes with a property owner's reasonable investment backed development expectations.
Carefully review regulations requiring that all of a particular parcel of land be left substantially in its natural state. A prohibition of all economically viable uses of the property is vulnerable to a takings challenge. In some situations, however, there may be preexisting limitations on the use of property that could insulate the government from takings liability.
d. Does the regulation have a significant impact on the landowner's economic interest?
Carefully review regulations that have a significant impact on the owner's economic interest. Courts will often compare the value of the property before and after the impact of the challenged regulation. Although a reduction in property value alone may be a "taking", a severe reduction in property value often indicates a reduction or elimination of reasonably profitable uses. Another economic factor courts will consider is the degree to which the challenged regulation impacts acts any development rights of the owner. As with subsection B1c of this section, these economic factors are normally applied to the property as a whole.
e. Does the regulation deny a fundamental attribute of ownership?
Regulations that deny the landowner a fundamental attribute of ownership - including the right to possess, exclude others and dispose of all or a portion of the property - are potential takings.
The United States supreme court recently held that requiring a public easement for recreational purposes where the harm to be prevented was to the floodplain was a "taking". In finding this to be a "taking", the court stated:
The city never demonstrated why a public greenway, as opposed to a private one, was required in the interest of flood control. The difference to the petitioner, of course, is the loss of her ability to exclude others... [T]his right to exclude others is "one of the most essential sticks in the bundle of rights that are commonly characterized as property".
Dolan v. City Of Tigard, 114 U.S. 2309 (June 24, 1994). The United States supreme court has also held that barring the inheritance (an essential attribute of ownership) of certain interests in land held by individual members of an Indian tribe constituted a "taking". Hodel v. Irvin, 481 U.S. 704 (1987).
f. Does the regulation serve the same purpose that would be served by directly prohibiting the use of action, and does the condition imposed substantially advance that purpose?
A regulation may go too far and may result in a takings claim where it does not substantially advance a legitimate governmental purpose. Nollan v. California Coastal Commission, 107 S. Ct. 3141 (1987); Dolan v. City Of Tigard, 114 U.S. 2309 (June 24, 1994).
In Nollan, the United States supreme court held that it was an unconstitutional "taking" to condition the issuance of a permit to landowners on the grant of an easement to the public to use their beach. The court found that since there was no indication that the Nollans' house plans interfered in any way with the public's ability to walk up and down the beach, there was no "nexus" between any public interest that might be harmed by the construction of the house, and the permit conditions. Lacking this connection, the required easement was just as unconstitutional as it would be if imposed outside the permit context.
Likewise regulatory actions that closely resemble, or have the effects of a physical invasion or occupation of property, are more likely to be found to be takings. The greater the deprivation of use, the greater the likelihood that a "taking" will be found.
C. The administrator shall place a hearing on the appeal on the agenda of the next regular commission or council meeting for which the attorney's review (if relevant) and notice requirements can be met, and at which time will permit its proper consideration. Notice requirements for an appeal shall be the same as for the original permit application.
D. The commission or council shall conduct a hearing on the appeal following the procedure established in section 17.16C.010 of this chapter. No appeal shall be heard if the appellant or a representative and, when the appellant is not the developer, the developer or a representative is not present.
E. The commission or council shall determine whether the decision being appealed is in compliance with the comprehensive plan and this title, and affirm, modify, or overturn that decision accordingly. Where a taking of property without just compensation is alleged, the commission or council shall also consider the city attorney's review of the decision, as provided by subsection B of this section.
F. The administrator shall notify the appellant and interested parties of the commission's or council's decision within ten (10) days. (Ord. 459-13, 2013)
17.16B.020: VARIANCES:
Variances are intended to provide relief for landowners who, due to some unique physical characteristic of their property that is beyond their control, would have no beneficial use of the property if this title is strictly enforced. Applications for variances shall follow the procedure described herein. Applications for variances may be combined and processed simultaneously with applications for class II permits.
A. The developer shall file a properly completed application form, the required supporting materials, and the required application fee with the administrator.
B. The administrator shall place a hearing on the variance on the agenda of the next regular commission meeting for which the notice requirements can be met and at which time will allow its proper consideration. Notice requirements for a variance shall be the same as for a class II permit, and class II permit and variance hearings may be combined when appropriate. When such a combination is made, the hearing notice shall specifically describe the proposed variance, including a citation of the sections of this title from which a variance is requested.
C. The commission shall conduct a hearing on the proposed variance following the procedure established in section 17.16C.010 of this chapter. No application for a variance shall be reviewed if the developer or a representative is not present.
D. The commission shall approve a variance only upon finding that:
1. The need for a variance results from physical limitations unique to the lot or parcel on which the variance is requested;
2. Failure to approve the variance will result in undue hardship because no reasonable conforming use of the lot or parcel is possible without a variance;
3. The alleged hardship has not been created by action of the owner or occupants;
4. Approval of the variance will not create a nuisance, result in potential harm to adjoining properties or the neighborhood, or have an adverse effect on the implementation of the comprehensive plan; and
5. The variance approved is the minimum relief from the requirements of this title necessary to permit a reasonable conforming use.
6. Conditions may be attached to the approval of any variance, as provided in section 17.16A.090 of this chapter.
E. The administrator shall notify the developer and interested parties of the commission's decision within ten (10) days.
F. The commission's decision may be appealed to the council using the appeals procedure of section 17.16B.010 of this article. A notice of any such appeal shall be filed with the administrator within ten (10) days after notice of the decision has been issued. Developers proceed at their own risk during this appeal period. (Ord. 459-13, 2013)
AS846 17.16C.txt
17.16C.010: HEARING PROCEDURE EXPOUNDED:
This procedure shall be followed in all hearings before the commission or council:
A. The presiding officer shall announce the purpose and subject of the hearing.
B. The presiding officer shall determine whether proper notice of the hearing has been provided. If proper notice has not been provided, the hearing shall be rescheduled.
C. The presiding officer shall ask if any commission/council member wishes to declare a conflict of interest, as defined by Idaho Code 67-6506, in the matter to be heard and excuse any member who declares such a conflict from participation in the hearing.
D. The presiding officer shall ask the administrator to present a report on the proposal being considered.
E. The presiding officer shall direct questions from commission/council members to the administrator. Questions asked at this time shall be solely for the purpose of clarifying the location and nature of the proposed development.
F. The presiding officer shall remind those present that all statements given must address the merits of the proposed development as measured by its compliance or lack of compliance with the comprehensive plan and this title.
G. The presiding officer shall ask for a statement from the developer or his or her representative. Commission/council members may ask questions following this statement. All questions and replies shall be directed through the presiding officer.
H. Following the developer's statement, the presiding officer shall ask for statements from the public. Persons giving statements shall begin by stating their name and mailing address. Commission/council members may ask questions following any statement. All questions and replies shall be directed through the presiding officer.
I. When all statements have been given, the presiding officer shall ask if any person who gave a statement wishes to speak in rebuttal to other statements or to clarify his or her statement. Neither new statements nor the introduction of new evidence shall be permitted at this time. Questions from commission/council members may follow each rebuttal or clarification.
J. The presiding officer shall close the public hearing and call for discussion by the commission/council, resulting in action, as provided by this title.
K. Written statements, plans, drawings, photographs, or other materials offered in support of statements at a hearing are part of that hearing's record and shall be retained by the city. Supporting materials shall be left with the administrator after each statement is made. (Ord. 459-13, 2013)
17.16C.020: ADDITIONAL HEARING PROCEDURES:
These procedures may be used without prior notice to assist in the conduct of large or controversial hearings:
A. The commission/council may impose time limits on the statements given in order to assure completion of its agenda.
B. The commission/council may require persons who wish to make a statement to register their intention to do so with the administrator before the hearing. The presiding officer shall use the register to call on persons to present their statements. (Ord. 459-13, 2013)
17.16C.030: HEARINGS TO BE TAPED:
As required by Idaho Code 67-6536, the administrator shall keep a transcribable tape record of all hearings on file for at least six (6) months after the final hearing, including appeals hearings, on the development. (Ord. 459-13, 2013)
17.16C.040: DECISION RECORD:
All decisions of the commission and council shall be reported in the form of findings of fact and conclusions of law, as required by Idaho Code 67-6535. The completed decision record shall include the application materials and any report prepared by or on contract for the administrator. (Ord. 459-13, 2013)
17.16C.050: DECISION DEADLINE:
This section establishes the "reasonable time" for deliberation on applications by the commission required by Idaho Code 67-6519. The commission shall make a decision on any application for a permit within sixty (60) days of the hearing, if a hearing is required by this title, or within sixty (60) days of the meeting at which the application first appeared on the commission agenda. Note that submission of an incomplete application requires no action by the commission and that applications for which a large scale development study is required are not complete and subject to action within the deadline established herein until that study is complete. (Ord. 459-13, 2013)
17.16D.010: FAILURE TO OBTAIN A PERMIT:
Whenever the administrator becomes aware of an activity for which a permit is required by this title, but for which a permit has not been approved, he or she shall notify the occupant (and owner, if they are not the same) to immediately cease all unpermitted activity. Notice shall be given by posting on the site and/or first class mail. If the unpermitted activity does not cease, the administrator shall ask the prosecuting attorney to take immediate action, as authorized by Idaho Code 67-6527, to end the unpermitted activity and, if a permit is not subsequently issued, to require restoration of the site to its original condition. Required restoration shall include restoration of vegetative cover where sites have been graded in violation of this title. (Ord. 459-13, 2013)
17.16D.020: CERTIFICATE OF COMPLIANCE:
A certificate of compliance shall be issued before any land division is offered for sale, lease, or occupancy, sold, leased, or occupied or before any development is occupied. A certificate of compliance indicates that an on site inspection has shown that the development complies with this title, including any conditions imposed upon its approval. Occupancy of a development without a certificate of compliance shall be a violation of this title. Issuance of a certificate of compliance shall not be construed as approval of any violation of this title that may have been undiscovered during the inspection. (Ord. 459-13, 2013)
17.16D.030: TEMPORARY CERTIFICATE OF COMPLIANCE:
A temporary certificate of compliance may be issued to permit temporary use of a structure in cases where weather prevents the prompt completion of such required improvements as landscaping. No temporary certificate of compliance shall be issued for more than one hundred eighty (180) days. (Ord. 459-13, 2013)
17.16D.040: ENFORCEMENT ACTIONS:
The process for enforcement of these regulations shall be as described herein:
A. The administrator shall notify the occupant (and owner, if they are not the same) of the violation by first class mail and/or posting on the site. The notice shall describe the violation, cite the section(s) of this title being violated, and order the occupant to attain compliance within thirty (30) days.
B. Any person who receives a notice of violation may request inspection by the administrator to show that compliance has been attained within the thirty (30) days allowed, or:
1. File a written request with the administrator for an extension of time to attain compliance, with such extensions being limited to a maximum of sixty (60) days and culminated by an inspection to show that compliance has been attained; or
2. File an appeal of the administrator's notice, following the appeals procedure of section 17.16B.010 of this chapter.
C. The administrator shall ask the prosecuting attorney to commence legal action, as authorized by Idaho Code 67-6527, against any occupant or owner who fails to attain compliance within the specified time, or to show, on appeal, that a violation has not occurred. (Ord. 459-13, 2013)
17.16D.050: PUBLIC ENDANGERMENT:
The enforcement procedure provided herein may be accelerated where the administrator finds that public health and safety could be endangered by a violation. In such cases, the administrator shall ask the prosecuting attorney to take immediate action to end the danger to public health and safety. (Ord. 459-13, 2013)
17.16D.060: PENALTIES:
Violations of this title shall be a misdemeanor, punishable by a fine in any amount not exceeding three hundred dollars ($300.00), or by imprisonment for a period of not longer than thirty (30) days, or by both fine and imprisonment. Each day in which a violation continues may be considered a separate offense. (Ord. 459-13, 2013)
17.16E.010: AMENDMENT PROCEDURE:
Any person may petition for the amendment of the comprehensive plan or this title. The amendment procedure shall be as described herein and in Idaho Code 67-6509 or 67-6511, respectively:
A. The developer shall file a properly completed application form, the required supporting materials, and the required application fee with the administrator.
B. The administrator shall place a hearing on the application on the agenda of the next regular commission meeting for which the notice requirements can be met and at which time will allow its proper consideration. Notice requirements for an amendment shall be as set by Idaho Code 67-6509 or 67-6511(b).
C. The administrator may contract with a planner for professional review of the application, with the cost of that review being covered by the application fee. Such reviews shall be prepared in the form of a written report submitted to the administrator for use at the hearing. The administrator shall, upon its receipt, provide a copy of this report to the developer and place it on file for public review with the other application materials.
D. The commission shall conduct a hearing on the proposed amendment following the procedure established in section 17.16C.010 of this chapter. No application for an amendment shall be reviewed if the developer or a representative is not present.
E. In the case of proposed plan amendments, the commission shall determine whether the proposed amendment is consistent with the public interest, and recommend that the council approve or disapprove it accordingly. In the case of proposed ordinance amendments, the commission shall determine whether the proposed amendment is consistent with the comprehensive plan, and recommend that the council approve or disapprove it accordingly.
F. The administrator shall convey the commission's recommendation to the council and, unless the application is withdrawn, place a hearing on the application on the agenda of the next regular council meeting for which the notice requirements can be met and at which time will allow its proper consideration. Notice shall be provided in the same manner as for the hearing before the commission.
G. The council shall conduct a hearing on the proposed amendment following the procedure established in section 17.16C.010 of this chapter. No application for an amendment shall be reviewed if the person who petitioned for the amendment or a representative is not present.
H. The council shall determine whether the proposed amendment is consistent with the public interest and/or the comprehensive plan and approve or disapprove it accordingly.
I. The administrator shall notify the developer and interested parties of the council's decision within ten (10) days. No amendment to this title shall become effective until that amendment has been adopted as an ordinance and published as required by law. (Ord. 459-13, 2013)
17.16E.020: ANNEXATION:
Any land that is added to the city by annexation must be added to the official zoning map, as required by Idaho Code 67-6525. Also, an annexation plat shall accompany all proposals for annexation.
A. All applications for annexation shall be accompanied by a plat that complies with the requirements of chapter 17.52 of this title. That plat may be strictly an annexation plat, showing the boundaries of the area to be added to the city, or it may be a subdivision plat, which shall be reviewed as required by section 17.16A.080 of this chapter and the other provisions of this title.
B. All applications for annexation shall first be submitted as applications for an amendment to the official zoning map, as required by this section. The proposed amendment shall be approved before the annexation is accepted. (Ord. 459-13, 2013)
17.16F.010: VACATION OF PLATS PROCEDURE:
Vacation of any plat, or any portion of a plat, may be proposed following the procedure provided herein and in Idaho Code 50-1306A. Note that the county may take no action on a proposed vacation within one mile of an incorporated city until the vacation has been approved by the city.
A. A petition for vacation and the required fee shall be filed with the administrator, who shall place consideration of that petition on the agenda of the next regular commission meeting at which time will permit its proper review.
B. The commission shall review the proposed vacation and recommend that the vacation either be accepted or denied by the council.
C. The administrator shall notify the council and the petitioner of the commission's recommendation within ten (10) days, and unless the petitioner withdraws the petition, place a hearing on the proposed plat vacation on the agenda of the next regular council meeting for which the notice requirements of subsection D of this section can be met, and at which time will permit its proper review.
D. Notice of the hearing shall be provided, as follows:
1. By certified mail; to all owners of record of property within, and within three hundred feet (300') of, the boundaries of the plat proposed to be vacated, at least ten (10) days before the hearing, and
2. By newspaper publication; two (2) successive legal notices in the official newspaper, with the final newspaper notice appearing at least seven (7) days prior to the hearing.
E. The council shall conduct a hearing on the proposed plat vacation following the procedure established in section 17.16C.010 of this chapter. No petition shall be reviewed if the petitioner or a representative is not present.
F. The council shall accept or reject the petition for vacation, with acceptance based on findings that:
1. The vacation will not eliminate safe street access to any lot or parcel that is in separate ownership and was formerly included in, or is adjacent to, the plat,
2. The vacation will not eliminate easements or rights of way used for utilities serving any lot or parcel that is in separate ownership and was formerly included in, or is adjacent to, the plat, and
3. All owners of record of property or property interests within the plat proposed to be vacated have consented, in writing, to the vacation.
G. The administrator shall notify the petitioner and interested parties of the council's decision within ten (10) days. (Ord. 459-13, 2013)
17.16G.010: PURPOSE AND INTERPRETATION OF CONDITIONAL USE:
A. Purpose: It is recognized that an increasing number of new kinds of uses are appearing daily, and that many of these and some other more conventional uses possess characteristics of such unique and special nature relative to location, design, size, method of operation, circulation and public facilities that each specific use must be considered individually.
B. Commission Hearings: The commission shall hold a public hearing on each conditional use permit application; the commission may approve, conditionally approve, modify or deny a conditional use permit under the conditions as herein specified and considering such additional safeguards as will uphold the intent of this article. The Council may also hold a public hearing if it is deemed necessary to collect information and/or make clarifications on the application.
C. Interpretation Of Conditional Use: Any use which is permitted as a conditional use in a district under the terms of this article shall not be deemed a nonconforming use in such district, but shall, without further action, be considered a conforming one. (Ord. 471-18, 2018)
17.16G.020: GENERAL STANDARDS FOR CONDITIONAL USES:
The commission/Council shall review the particular facts and circumstances of each proposed conditional use in terms of the following standards and shall find adequate evidence showing that such use at the proposed location:
A. Will, in fact, constitute a conditional use as established in section 17.16G.060 of this article for the zoning district involved;
B. Will be harmonious with and in accordance with the general objectives or with any specific objective of the comprehensive plan and/or this article;
C. That the site is large enough to accommodate the proposed use and meets all the dimensional and development regulations in the district in which the use is located;
D. That the proposed use will be harmonious with the Ashton Comprehensive Plan and in accord with the requirements of this article;
E. Will be designed, constructed, operated and maintained to be harmonious and appropriate in appearance with the existing or intended character of the general vicinity and that such use will not change the essential character of the same area;
F. Will not be hazardous or disturbing to existing or future neighboring uses;
G. Will be served adequately by essential public facilities and services such as highways, streets, police and fire protection, drainage structures, refuse disposal, water and sewer and schools; or that the persons or agencies responsible for the establishment of the proposed use shall be able to provide adequately any such services;
H. Will not create excessive additional requirements at public cost for public facilities and services and will not be detrimental to the economic welfare of the community;
I. Will not involve uses, activities, processes, materials, equipment and conditions of operation that will be detrimental to any persons, property or the general welfare by reason of excessive production of traffic, noise, smoke, fumes, glare or odors;
J. Will have vehicular approaches to the property which shall be so designed as not to create an interference with traffic on surrounding public thoroughfares; and
K. Will not result in the destruction, loss or damage of a natural, scenic or historic feature of major importance to the community of Ashton. (Ord. 471-18, 2018)
17.16G.030: PUBLIC SITES AND OPEN SPACES:
Public sites and open spaces shall conform to the following:
A. Public Uses: Where it is determined that a proposed park, playground, school or other public use shown on the future acquisition map, as authorized in section 67-6517, Idaho Code, is located in whole or in part within a proposed development, the commission shall notify the appropriate public agency concerning the land proposed to be acquired. Within thirty (30) days of the date of notice, the public agency may request the Governing Body to suspend consideration on the permit for sixty (60) days from the date of the request; however, if an agreement is not reached within sixty (60) days, the commission shall resume consideration of the conditional use application.
B. Natural Features: Existing natural features which add value to residential development and enhance the attractiveness of the community (such as trees, watercourses, historic spots and similar irreplaceable assets) shall be preserved in the design of the development.
C. Special Developments: In the case of planned unit developments and large scale developments, the Council may require sufficient park or open space facilities of acceptable size, location and site characteristics that may be suitable for the proposed development. (Ord. 471-18, 2018)
17.16G.040: SUPPLEMENTARY CONDITIONS AND SAFEGUARDS:
In granting any conditional use, the Council may prescribe appropriate conditions, bonds and safeguards in conformity with this article. Violations of such conditions, bonds or safeguards, when made a part of the terms under which the conditional use is granted, shall be deemed a violation of this article.
A. Time Limitations And Extensions:
1. A conditional use permit, when granted, shall be valid for a maximum period of two (2) years unless otherwise approved by the Council. During this time, the applicant shall commence the use as permitted in accord with the conditions of approval, satisfy the requirements set forth in the conditions of approval, and acquire building permits and commence construction of permanent footings or structures on or in the ground.
2. For conditional use permits that also require platting, the final plat must be signed by the City Engineer within this two (2) year period.
3. Upon written request and filing by the applicant prior to the termination of the period in accord with subsection 17.16G.050G of this article, the Administrator may authorize two (2) extensions of time to commence the use, not to exceed one (1) 2-year period for each extension. Additional time extensions up to two (2) years as determined and approved by the Council may be granted. With all extensions, the Administrator or Council may require the conditional use comply with the current provisions of this article.
4. Approval of requests for time extension to an approved conditional use shall be determined by the Administrator/Council and will not be granted if any of the following conditions exist:
a. Significant amendments to the comprehensive plan or this title have been adopted that change the basis under which the conditional use permit was granted.
b. Significant changes in land use have occurred in the area that will impact or be impacted by the project.
c. Hazardous conditions have developed or have been discovered that will impact the project.
d. Community facilities and services are no longer adequate to serve the project.
5. The commission may place additional requirements, modify the previous approval or deny the request (as part of a recommendation to Council). (Ord. 471-18, 2018)
17.16G.050: CONDITIONAL USE PERMIT:
A. Application For Conditional Use Permit: An application for conditional use permit shall be filed with the Administrator by at least one owner of property, or a party with a letter of legal interest, for which such conditional use is proposed. At a minimum, the application shall contain the following information:
1. Name, address and phone number of applicant;
2. Legal description of property;
3. Description of existing use;
4. Zoning district;
5. Description of proposed conditional use;
6. A plan for the proposed site for the conditional use showing the location of all buildings, parking and loading area, traffic access and traffic circulation, open spaces, landscaping, refuse and service areas, utilities, signs, yards and such other information as the commission may require to determine if the proposed conditional use meets the intent and requirements of this article; and
7. A narrative statement evaluating the effects on adjoining property; the effect of such elements as noise, glare, odor, fumes and vibration on adjoining property; a discussion of the general compatibility with adjacent and other properties in the district; and the relationship of the proposed use to the comprehensive plan.
B. Supplemental Information: Prior to granting a conditional use permit, the Council may request studies from the planning staff or public agencies concerning social, economic, fiscal and environmental effects on the proposed conditional use.
C. Procedure For Approval Of Conditional Use Permit: The commission shall hold a public hearing on each conditional use permit application as specified in section 17.16C.010 of this chapter. The Council may approve, modify, or deny a conditional use permit under the conditions as herein specified and considering such additional safeguards as will uphold the intent of this article.
1. Public Hearing, Notice: Prior to granting a conditional use permit, the commission shall hold a public hearing in which interested persons shall have an opportunity to be heard. That public hearing shall be scheduled within thirty (30) days of receipt of an application. Notice shall be provided as required by subsection 17.16A.080E of this chapter.
2. Action By The Commission And Council: Within fifteen (15) days after the public hearing, the commission shall transmit its recommendation of approval or denial to the Council. Within forty five (45) days after receipt of the commission's recommendation, the Council shall approve or deny the application, or if the Council determines further clarification is needed the Council may hold a second public hearing prior to approval or denial of an application. The City Council shall follow notice and hearing requirements set forth in article C of this chapter. If the application is approved or approved with modifications, the Council shall direct the Administrator to issue a conditional use permit listing the specific conditions specified by the Council for approval.
Upon granting or denying an application, the Council shall specify:
a. The ordinance and standards used in evaluating the application;
b. The reasons for approval or denial; and
c. The actions, if any, that the applicant could take to obtain a permit.
3. Notice To Applicant: Within ten (10) days after a decision has been rendered, the Administrator shall provide the applicant with written notice of the action on the request. Notice will state the conditions of the permit. If conditions are violated or not met there will be a 90-day period to cure the problem. Failure to comply with the terms may result in revocation of the conditional use permit.
The applicant or any person who appeared in person or in writing before the commission may appeal the decision of the commission to the Council, provided the appeal is submitted to the Council fifteen (15) days prior to the next regularly scheduled Council meeting.
D. Conditions Of Permit: Upon the granting of a conditional use permit, conditions may be attached to said permit including, but not limited to, those:
1. Minimizing adverse impact on other development (such as: buffering, screening, access locations, etc.);
2. Controlling the sequence and timing of development;
3. Controlling the duration of development;
4. Assuring that development is maintained properly;
5. Designating the exact location and nature of development (such as: aesthetics, facade design, green space requirements, building height and building footprint size);
6. Requiring the provision for on site or off site public facilities or services;
7. Requiring more restrictive standards than those generally required in this title; and
8. Bonds.
E. Transfer And Modifications Of Permit:
1. A conditional use permit is not transferable from one parcel of land to another. Conditional use permits are an entitlement to the specific property on which the approval was granted and upon any transfer of title for the property the conditional use permit transfers to the new owner(s) without further application or approval, provided, however, the new owner(s) shall be bound by the same conditions of approval applicable to the conditional use permit that was transferred. The new owner(s) shall provide written acknowledgement to the City accepting the terms of the transferred conditional use permit within sixty (60) days of purchase and receipt by the new owners of actual notice of the existence of the conditional use permit for the parcel, whichever event occurs later; otherwise, the permit may be declared void after notice and public hearing before the City Council.
2. The Administrator may approve or deny specified minor modifications by applicant, provided such modifications were not the subject of review during the original public hearing and will not adversely impact adjacent properties. Such minor modifications include, but are not limited to, the following:
a. A reduction in density not exceeding fifteen percent (15%) of the total units.
b. Minor relocation of dwelling units or building pads for practical reasons such as road alignment, topography or access.
c. Minor changes to the recreation area or open space design, but not elimination or reduction in area.
d. Increase in building square footage, not exceeding ten percent (10%), provided that the parking and landscaping requirements are met.
3. All other modifications shall be considered by the Planning and Zoning Commission and/or City Council at a public hearing. The commission/Council may modify the conditions, limitations and/or scope of the permit, in accord with the limitations and requirements of this chapter.
F. Effect Of Issuance On Other Conditional Uses: A conditional use permit shall not be considered as establishing a binding precedent to grant other conditional use permits.
G. Time Limitations, Extensions:
1. Once a conditional use is approved and exercised, said use may continue without further temporal constraints, provided that the use complies with its intended purpose, or City approved modifications thereafter, and does not violate any codes, subject to the following:
a. An approved conditional use permit shall be valid for a term approved and conditioned by the City Council.
b. An extension of the time limit for an approved conditional use may be granted by the Administrator without further notice and hearing, if the following findings are made:
(1) There are no outstanding City Code or conditional use permit violations on the subject property. If such violations exist, they may be conditioned by the City Council to be cured as a condition of the extension of time;
(2) The conditional use, as previously approved, remains in the best interests of the health, safety, and general welfare of the City;
(3) There have been no significant changes to this Code between the date of conditional use approval and the date of the time extension request that would require substantial modifications to the project;
(4) There are no hazardous conditions which have developed or have been discovered on the project site; and
(5) The public facilities and services required for the project remain adequate. (Ord. 471-18, 2018)
17.16G.060: CONDITIONAL USES OF ZONES:
A. The following uses and structures may be permitted in the LDRZD Zone only after a conditional use permit has been approved, and subject to the terms and conditions thereof.
Assisted and residential care facility.
Athletic fields.
Cemeteries.
Churches, synagogues, temples.
Communications in accordance with other applicable Communications Ordinances.
Electricity regulating substations.
Golf course.
Golf course with country club.
Hospitals.
Ice skating.
Libraries.
Nursery schools.
Other utility and public facilities.
Parks and playgrounds.
Public pools.
Recreation centers.
Residential facility for elderly persons (not group homes as defined).
Schools.
Skate parks.
Tennis courts.
B. The following uses and structures may be permitted in the HDRZD Zone only after a conditional use permit has been approved, and subject to the terms and conditions thereof.
Athletic fields.
Automobile parking lots and garages.
Cemeteries.
Churches, synagogues, temples.
Communications in accordance with other applicable Communications Ordinances.
Dormitory housing, fraternity, sorority.
Electricity regulating substations.
Golf course.
Golf course with country club.
Hospitals.
Ice skating.
Libraries.
Manufactured housing units twenty four feet (24') or wider on a permanent foundation.
Other utility and public facilities.
Parks and playgrounds.
Public pools.
Recreation centers.
Schools.
Separate parking lots.
Skate parks.
Tennis courts.
C. The following uses and structures may be permitted in the IZD Zone only after a conditional use permit has been issued, and subject to the terms and conditions thereof.
Accounting, auditing, book-keeping services, management.
Call centers.
Canning - fruits, vegetables, preserves, jams, etc.
Canning - specialty foods.
Combination utilities company storage yards and equipment storage.
Combination utilities, NEC dairy products.
Dance halls.
Day care centers.
Debris basin (a dam and basin for intercepting debris).
Drugs.
Electricity regulating substations.
Fabricated wire products.
Furniture, home furnishings, and equipment.
Industrial inorganic chemicals (includes air separation facilities).
Industrial laundry services.
Investment offices.
Legal services.
Low power radio communication towers and antennas.
Miscellaneous business services.
Miscellaneous fabricated rubber products.
Miscellaneous plastic products.
Miscellaneous wholesale trade.
Natural or manufactured gas storage; distribution points.
Nonferrous foundries (small item casting only).
Nursery schools.
Open-end police protection and related activities, branch (office only).
Other gas utilities, NEC.
Other sewage disposal, NEC.
Other utilities, NEC.
Other water utilities or irrigation, NEC.
Plastic materials, synthetic resins, and non-vulcanizable elastomers.
Poultry and small game dressing and packing.
Refuse disposals.
Restaurants.
Small generation.
Spreading grounds (area for percolating water into underground).
Warehousing operation.
Water reclamation plants, sludge drying beds, etc.
Water storage as part of a utility system (covered including water storage standpipes).
Water treatment plants (purification).
D. The following uses and structures may be permitted in the CCZD Zone only after a conditional use permit has been issued, and subject to the terms and conditions thereof.
All other wholesale auction houses.
Building contractor storage yards.
Bus garaging.
Call centers.
Churches, synagogues, temples.
Debris basin (a dam and basin for intercepting debris).
Dwelling and building services (not dwelling units).
Electric generation plants, utility electrical machinery, equipment supplies.
Electricity regulating substations.
Farm products, grain food lockers.
Furniture repair.
Go-cart tracks, four-wheeler tracks.
Household goods.
Ice skating.
Kennels.
Laundry and dry cleaning (includes self-service laundries).
Miscellaneous small item repair.
Motels and motor hotels.
Motor freight garaging and maintenance.
Motor freight terminals.
Natural or manufactured gas storage; distribution points.
Nursing home.
Other communication facilities.
Other gas utilities, NEC.
Personal services (wedding chapels and reception centers only).
Police protection and related activities, branch (office only).
Radio and TV transmitting stations and towers.
Radio, television broadcasting station.
Railroads, including terminals and yards.
Refrigerated warehousing.
Riding stables.
Roller skating and skate boarding.
Saw, knife, and tool sharpening.
Single-family dwelling.
Skate park.
Small generation.
Spreading grounds.
Stadiums, arenas, and field houses.
Telephone exchange stations, microwave towers.
Warehousing and storage.
Water storage as part of a utility system (covered including water storage standpipes). (Ord. 471-18, 2018)