Certain land uses and their related structures are designated under this zoning ordinance as conditional uses for one or more zoning district classifications within the city. Such uses and structures are presumed to be inappropriate in those zoning districts. A conditional use can be permitted only at the discretion of city council, following review and recommendations by the planning commission, and only after legislative findings are made that the proposed use, with such conditions as the city council may impose, is compatible with the surrounding neighborhood. The procedures and standards set out below are intended to ensure that an appropriate review is made and that appropriate conditions and safeguards are attached to any permit which is granted. Conditional use permit procedures shall be applied and conditional use permits issued only as specified in this ordinance.

City council may only approve the establishment of those conditional uses that are expressly authorized as such in a particular zoning district.

A.

Filing with planning department. An application for a conditional use permit shall be filed with the planning department by the owner or owners of the property involved or by a person having an interest in the property and being expressly authorized by the owners to file the application.

B.

Contents. An application for a conditional use permit shall contain the following information:

1.

The applicant's name and address, and the applicant's interest in the subject property.

2.

A statement signed by the owner or authorized applicant containing the following information:

a.

A listing of names and last known addresses of all applicants, title owners, contract purchasers and lessees of the land described in the application, and if any of the foregoing is a trustee, each beneficiary having an interest in such land. The application shall also contain a listing of the shareholders of all corporations of the foregoing who own ten (10) percent or more of any class of stock issued by said corporation and, where said corporation has ten (10) or fewer shareholders, a listing of all shareholders. This requirement may be waived by the planning department where the owner or applicant, as applicable, is a publicly-held corporation. The application shall also contain a listing of all partners, both general and limited, in a partnership, all members of a limited liability company, and all trustees of a church.

b.

An oath or affirmation by the owner or applicant that no members of the city council or the planning commission owns or has any personal interest in the land which is subject to the application or has any personal interest in the outcome of the decision, as defined by the Virginia Conflict of Interest Act. If any member of the city council or the planning commissions owns or has any personal or financial interest in the land or in the outcome of the decision the applicant or owner must so state.

3.

Where the application is filed by an agent, contract purchaser or lessee, a written and notarized statement signed by the title owner or owners indicating endorsement of the application by the owner or owners and authorizing the applicant to seek the use permit.

4.

The street address (or common description) and legal description of the property.

5.

A preliminary site plan meeting the requirements of article 18 of this ordinance; provided that the planning director may modify these requirements for i) home occupations, ii) day care operations in existing buildings, and iii) churches in existing buildings, provided that the applicant submits a preliminary site plan showing at a minimum all areas to be included in the conditional use permit; existing and proposed buildings and structures; parking areas; landscaping and entrances, drive aisles and pickup areas. The filing of a preliminary site plan for land uses that require approval of a conditional use permit shall not be considered a plan of development for purposes of section 15.2-2286.A.8 Code of Virginia, 1950, as amended, or subject to the review time limitations in section 18-203 of the zoning ordinance.

6.

Where the development is located wholly or partially in the Northwest River Watershed Protection District, description and proposed location of buildings, structures, storage areas and stormwater facilities for commercial and industrial uses.

7.

A phase I environmental site assessment, prepared in compliance with the specifications in the Chesapeake Public Facilities Manual, shall be required for every proposed development that involves any land disturbance for residential, assembly, day care, group home, recreation, school, library, or similar use where exposure to contaminated soil or water would pose a threat to the public health, safety and welfare; provided that the director of development and permits, with the concurrence of the director of public works, may waive this requirement if the following conditions are satisfied:

a.

The applicant/owner submits a documentation, in a form acceptable to the directors of development and permits and public works, requesting to waive the phase I environmental site assessment and demonstrating that the proposed land disturbance does not pose a significant risk to the environment or the public health and safety; and

b.

The applicant/owner signs and submits documentation, in a form acceptable to the city attorney, assuming all risk and indemnifying and holding the city harmless for any actions or liability that result from such waiver.

Where deemed necessary, the director of public works or designee shall require a phase II environmental site assessment, as specified in the Chesapeake Public Facilities Manual. The phase I and phase II reports shall include recommendations to address any and all environmental conditions of the property, including without limitation, contaminated soil, surface water, or groundwater, that may be adverse to the public health, safety and welfare. In the event a phase I and/or phase II environmental site assessment has been previously submitted to the city for the same property, such environmental site assessment may suffice if updated in accordance with applicable standards in the Chesapeake Public Facilities Manual.

8.

Information in a format approved by the city treasurer demonstrating that there are no delinquent real estate taxes due on the subject property.

9.

Such additional materials and information as reasonably may be required by the reviewing departments, the planning commission or city council in order for the application to be fully and appropriately reviewed and considered. The planning department shall develop instructions and/or forms for conditional use permit applications which establish the criteria for determining that an application is complete.

C.

Certification. All applications for conditional use permit approval shall contain a certification by the owner that to the best of his knowledge, the application is accurate and complete. This certification shall apply to all plans, reports, and attachments accompanying the application. No application for a conditional use permit shall be deemed complete without such certification. False certifications shall be deemed a violation of this ordinance and shall be punishable by civil penalty in accordance with section 20-202 of this ordinance.

(Ord. No. 02-O-137, 11-19-02; Ord. No. 05-O-130, 10-18-05; Ord. No. 09-O-007, 1-27-09; Ord. No. 10-O-140, 11-16-10; Ord. No. 21-O-067, 6-15-21)

A.

Format. The application shall be submitted in a format approved by the planning department.

B.

Review for completeness. The application shall be reviewed by the planning director for completeness. If the application is found to be incomplete, the planning department shall return the application to the applicant, with a description of the manner and areas in which the application was incomplete. Notwithstanding any initial determination of completeness, the planning director, the planning commission or the city council may at any time during the review process find that essential information is lacking and may deem the application incomplete and defer further review or action until such time that such information is provided.

(Ord. No. 02-O-137, 11-19-02)

After an application is initially determined to be complete, it shall be fully reviewed by the affected departments and a meeting with the applicant will be held to review departmental comments and recommendations. Following the final response of the applicant to the departmental recommendations, a staff report and recommendations shall be completed, normally within fourteen (14) days of the applicant's final response, for submission to the planning commission. The application may then be placed on the planning commission agenda for the commission hearing on the second Wednesday of the following month.

(Ord. No. 02-O-137, 11-19-02; Ord. No. 17-O-081, 11-21-17)

Notice of the planning commission hearing to review a conditional use permit application shall be the same as that provided for a rezoning application, as set out in section 16-105. In the event that consideration of a use permit application is continued by the planning commission to another date, no additional notice shall be required.

A.

Standard for review. No conditional use permit application shall be recommended for approval unless the application meets the standards set out below.

1.

The proposal as submitted or as modified is in conformity with the adopted Comprehensive Plan, including specific applicable elements of the plan, and with official policies adopted in relation to the plan, including the purposes of this ordinance.

2.

The proposal as submitted or modified is compatible with the surrounding community and will have no more adverse effects on the health, safety, or comfort of persons living in, working in, or driving through the area than would any other use generally permitted in the same district.

B.

Factors considered. Without in any way limiting the discretion of the planning commission in its consideration of a specific conditional use permit application, the following factors may be considered in determining whether the application meets the required standards:

1.

Whether the proposed conditional use will be consistent with the adopted policies in the adopted Comprehensive Plan of the city.

2.

Whether the existing or proposed streets and highways are adequate to safely accommodate and serve the site, with particular attention being given to the following:

a.

The capacity of existing or proposed streets and highways located on or near the site to accommodate projected traffic volumes.

b.

The adequacy and safety of the size and design of access roads, entrance and exit drives, and traffic circulation patterns, for both vehicular and pedestrian traffic on and near the site.

3.

Whether the proposed conditional use will be adequately served by other essential public facilities, including but not limited to the following: water and sewers, drainage facilities, schools, recreational facilities, police and fire protection, and refuse disposal.

4.

Whether the proposed conditional use will have any adverse effect upon or will be incompatible with the use or enjoyment of adjacent and surrounding property, with particular attention being given to the following:

a.

The noise characteristics of the proposed use and whether they exceed the maximum sound levels that are typical of uses permitted as a matter of right in the district.

b.

The anticipated glare from vehicular and stationary lights and the extent to which such lights will be visible from any residential district.

c.

The vulnerability of the proposed use to fire and related safety hazards.

d.

The interference by the proposed use with any easements, roadways, rail lines, utilities and public or private rights-of-way.

e.

The possible destruction, loss or damage of a natural, scenic or historic feature of significant importance.

f.

The adequacy of proposed landscaping and buffering measures to screen the site from neighboring properties zoned for or containing less intensive uses.

5.

Whether the proposed conditional use will be constructed, arranged, and operated so as not to dominate or interfere with the immediate vicinity or to interfere with the development and use of neighboring property in accordance with the applicable district regulations. In determining whether the proposed conditional use will so dominate the immediate vicinity, consideration shall be given to:

a.

The location, nature and height of buildings, structures, walls and fences on the site;

b.

The overall compatibility of the appearance of the site as proposed with neighboring sites; and

c.

The nature and extent of landscaping and screening on the site.

6.

Whether the property on which the conditional use is to be located is free of adverse environmental conditions, including without limitation, contamination of the soil, surface water, or groundwater; and if not, the nature of remedial action to be taken to address the adverse conditions and to disclose such conditions in purchase contracts, deeds, restrictive covenants, homeowners association documents, condominium instruments, final subdivision plats, and similar instruments of record, as required by section 13-2600 et seq. of this ordinance.

7.

Whether the proposed use of property in the Fentress Airfield Overlay District conforms with the regulations, compatibility tables, and avigation easement program set out in section 12-400 et seq. of this ordinance.

C.

Continuances to allow full review. The planning commission, at its discretion, may continue consideration of a conditional use permit application to subsequent meetings in order to fully review and act upon such application, as in the case of proposed rezonings.

D.

Action by planning commission. Following hearing and review on a conditional use permit application, the planning commission shall take action on the application, either recommending approval of the application as presented, recommending approval with such different or additional conditions and safeguards as the commission deems appropriate or recommending disapproval.

(Ord. No. 05-O-130, 10-18-05; Ord. No. 05-O-149, 11-22-05; Ord. No. 17-O-081, 11-21-17)

Notice of the city council hearing to review a conditional use permit application shall be the same as that provided for a rezoning application, as set out in section 16-107.

A.

Decision legislative in nature; standards and factors as a reference. Consideration of a conditional use permit application by city council is a legislative act. Without in any way limiting the discretion of council in its consideration of a specific conditional use permit application, the council may refer to the standards and factors for review set out in section 17-106 and the findings and recommendations of the planning commission in regard to those standards and factors.

B.

Continuances to ensure full review. City council may continue its consideration of a conditional use permit application to subsequent meetings in order to fully review and act upon such application, as in the case of proposed rezonings.

C.

Actions by city council. City council at its discretion may approve a use permit application as presented, approve the application with different or additional conditions or disapprove the application. As a condition of approval, city council may specify that the use authorized under the conditional use permit shall terminate after a specified period of time.

A conditional use permit, together with any conditions made a part of the permit, shall apply to the property for which it was issued, regardless of changes in the ownership of the property, unless otherwise specified by city council.

A.

Expiration of permit.

1.

Except as provided for in subsection (B) below, a conditional use permit shall automatically expire and become void three years from the date of approval by city council, unless within such three-year period: (1) a building permit is obtained and erection or alteration of a structure is started; or (2) an occupancy permit is obtained and a use commenced. For the purposes of this section, the starting of erection of a structure shall mean the completion of all foundation work, and the starting of alteration of a structure shall mean the completion of all demolition work required prior to construction of alteration improvements.

2.

City council shall have the authority to specify a shorter time period for the automatic expiration of a conditional use permit under this section. Such shorter period shall be specified at the time that the conditional use permit is granted. Extension of such permit may be made in accordance with the provisions of subsection (B) below.

B.

Extension of time to commence.

1.

Except as provided in subparagraph 2, prior to the time for expiration of a conditional use permit, city council, at its discretion, may grant a one-year extension of such permit, upon written application to city council by the owner of the property involved, either personally or through a duly authorized agent, without notice or hearing regarding such requested extension being required. Such written application for extension must be physically received by the planning department not less than two (2) weeks prior to the date of permit expiration. Applications for extension which are received in a timely fashion shall be valid and eligible for consideration regardless of the date on which city council acts on them, and the use permits for which such extensions are requested shall continue in effect until the applications for extension are acted upon by city council. Those applications for extension which are not received in a timely manner by the planning department shall not be considered.

2.

Conditional use permits approved for churches may be extended for one additional year by the planning director in accordance with the following:

a.

The planning director may approve an extension based on finding that conditions have not substantially changed since city council approved the conditional use permit in accordance with the procedure established in subparagraph B.1.

b.

The planning director shall not take action on an extension request until the expiration of fourteen (14) days or the occurrence of one city council regular public hearing to provide city council with notice that an extension request has been filed and opportunity to direct the planning director to forward the request for the council's consideration in accordance with subparagraph B.1.

c.

A request for an extension shall include a certification by the applicant that the preliminary site plan meets all current development standards and the proposed land use will comply with all stipulations imposed by city council.

d.

An appeal of a denial may be made to city council within thirty (30) days of the decision by the planning director.

C.

When extension not required. If, after a timely submission of an application for extension, but before city council consideration of the application or planning director action, the owner or owner's agent (1) obtains an occupancy permit and commences the use of the property as contemplated by the use permit, or (2) obtains a building permit, and requests and receives from the zoning administrator a determination that the starting of building or alteration of a structure has occurred as required by subsection (A) above, the use permit granted shall be deemed vested and no extension shall be required. Otherwise, council at its discretion, or the planning director in accordance with subparagraph B.2. may grant or deny the requested extension.

(Ord. No. 08-O-145, 11-18-08; Ord. No. TA-Z-08-15, 4-21-09)

A.

Expansion or modification of approved use permit. With the exception of churches as defined in this ordinance, expansion of the buildings or related structures that have been constructed as part of an approved conditional use permit, beyond the size or dimensions originally presented and approved as part of the conditional use permit application, may be reviewed and approved administratively as a site plan application, provided that the expansion does not increase the gross floor area of such buildings or gross square footage of structures to a size that is more than twenty-five (25) percent greater than the size of the buildings and structures originally approved. Each building or structure to be expanded shall be subject to this twenty-five (25) percent expansion rule. In addition, where more than one building or structure is being expanded, the cumulative expansions shall not exceed 25% of the gross floor area and gross square footage of all buildings and structures originally approved as part of the conditional use permit. Any further expansion of the buildings or structures originally approved under the conditional use permit shall require a separate or amended conditional use permit application. Any relocation of the buildings or structures originally approved shall require a separate or amended conditional use permit. No expansion under this section shall encroach upon parking required by Section 19-400 of this ordinance or landscaping required by Section 19-600 of this ordinance.

B.

Expansions of churches. Any church which was lawfully existing as of October 21, 1993 or which was lawfully constructed after October 22, 1993 as a permitted or conditional use, may be expanded in all zoning districts, other than the B-5 district and churches lawfully operating in a building with more than one leasable space in the South Norfolk Business Overlay District, in accordance with the development standards for use and structures required by the applicable zoning classification, subject to site plan review and approval in accordance with article 18. Churches in the B-5 district may only be expanded with a conditional use permit. Because of the concentrated nature of parking patterns generated by assembly uses and the impact on available off-street parking unique to the area in the South Norfolk Business Overlay District, expansion of churches lawfully operating in a building with more than one leasable space located in the South Norfolk Business Overlay District shall be prohibited.

(Ord. No. 01-O-032, 4-17-01; Ord. No. 03-O-029, 3-18-03; Ord. No. 04-O-124, 8-17-04)

Editor's note— Ord. No. 03-O-029, adopted March 18, 2003, changed the title of § 17-111 from "expansion or modification of approved use permit; expansions to existing churches permitted in all zoning districts" to "expansion or modification of approved use permit; exceptions to lawfully existing churches." The historical notation has been preserved for reference purposes.

Any conditional use permit approved under this ordinance may be revoked by city council, after notice and hearing complying with the procedural requirements of section 16-105, including review and recommendations by the planning commission, for willful noncompliance with any of the requirements imposed by council as a condition of use permit approval. In addition, compliance with this ordinance and the city code is deemed an essential condition of every conditional use permit to ensure compatibility with, and prevent adverse impact on, neighboring properties. Accordingly, any conditional use permit, including existing permits, may be revoked by city council, after notice and hearing complying with the procedures set out above, for the willful and continuous or recurring noncompliance with one or more applicable provisions of this ordinance and the city code.

As used in this section, "willful" noncompliance shall mean the failure to observe and conform with the requirements of law and all conditions imposed in connection with a use permit, committed after the city has issued written notice of the violation.

(Ord. No. 98-O-010, 1-20-98)

Where a use approved under a conditional use permit for a property is commenced and subsequently is ended or interrupted, for whatever reason, for a period of twelve consecutive months, the use shall be deemed to be abandoned and the use permit shall automatically expire and become void.

The conditions approved by city council as part of a conditional use permit shall constitute provisions of this ordinance and shall be enforced as such. Any use or structure approved as part of a conditional use permit shall be illegal and in violation of this ordinance unless there is full compliance with all of the conditions of such conditional use permit, including the preliminary site plan approved as part of the conditional use permit. In reviewing final site plans for conditional uses, the directors of the departments of planning and public works, or their designees, are jointly authorized to approve minor deviations from preliminary site plans approved as part of the conditional use permit; provided that the deviation is consistent with all conditions approved by city council as part of the conditional use permit, and with all applicable local, state, and federal ordinances, regulations and policies; and further provided that the deviation will have no adverse impact on the public health, safety or welfare. Where either or both directors deem a proposed deviation to be other than minor, the modification shall not be approved in final site plan review unless or until the conditional use permit, including the preliminary site plan, is amended by city council.

(Ord. No. 98-O-059, 4-28-98)