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Council City Zoning Code

CHAPTER 5

CONDITIONAL USES, VARIANCES, REZONING, AND DEVELOPMENT AGREEMENTS

10-5-1: CONDITIONAL USES:

The term “conditional use”, as used in this chapter, means a use within a district, identified by the letter “C” in the Land Use Table in Section 10-4-5 of this Code, and allowed only after public hearing and after issuance of a permit approved by the city council after following the procedures set forth in this Section.
   A.   General Provisions:
      1.   It is recognized that an increasing number of new kinds of uses frequently appear, 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. The zoning administrator will consult with the City Attorney and the City Engineer to interpret existing definitions regarding proposals to determine whether an amendment to the Land Use table or definition section would be required to consider the proposed use, or if the proposed use is sufficiently similar to listed uses or definitions to proceed without amendment.
   B.   Application For Permit: An application for a conditional use permit shall be filed with the zoning administrator. At a minimum, the application shall contain the following information:
      1.   Name, address and phone number of the applicant;
      2.   Legal description of the property;
      3.   Description of the existing use;
      4.   Zone classification;
      5.   Description of the proposed conditional use;
      6.   Names and addresses of adjoining property owners within three hundred feet (300') of the land being considered;
      7.   A plan of the proposed site for the conditional use showing the location of all the building, parking and loading areas, traffic access, traffic circulation, open spaces, landscaping, refuse and service areas, utilities, signs, yards and other such information as the commission may require to determine if the proposed conditional use meets the intent and requirements of this chapter;
      8.   A description of surrounding uses and a narrative statement evaluating the effects on adjoining property of such elements as noise, glare, odor, fumes and vibration; a discussion of the general compatibility with adjacent and other properties in the zone; and the relationship of the proposed use to the comprehensive plan; and
      9.   A filing fee shall accompany the application. (See section 10-5-1 -C of this chapter.)
   C.   Permit Fees: A fee as established by resolution of the city council and as provided by Section 2-2-1 of the Council City Code shall accompany an application for a permit, which fee will not be refunded if the application is denied.
   D.   General Standards Applicable To All Conditional Uses: The city 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:
      1.   Will not be in conflict with the general objectives or with any specific objectives of the comprehensive plan or this title;
      2.   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 areas;
      3.   Will not be hazardous or disturbing to existing or neighboring uses;
      4.   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;
      5.   That persons or agencies responsible for the establishment of the proposed use shall be able to provide adequately any such services;
      6.   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;
      7.   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 odor;
      8.   Will have vehicular approaches to the property which shall be so designed as not to create any interference with traffic on surrounding public thoroughfares; and
      9.   Will not result in the destruction, loss or damage of a natural, scenic or historic feature of major importance.
   E.   Public Sites And Open Spaces: Public sites and open spaces shall conform to the following:
      1.   Public Uses: Where it is determined that a proposed park, playground, school or other public use is located in whole or in part within a proposed development, the city council 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 city council shall resume consideration of the conditional use application.
      2.   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.
   F.   Supplementary Conditions And Safeguards: In granting any conditional use, the city council may prescribe appropriate conditions, bonds and safeguards which are in conformity with this chapter. Violation 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 chapter.
   G.   Hearing And Notice Requirements: Prior to granting a special use permit, the City Council shall hold at least one public hearing in which interested persons shall have an opportunity to be heard. At least fifteen (15) days prior to the hearing, notice of the time and place, and a summary of the proposal shall be published in the official newspaper of the city. Notice shall be posted on the premises not less than one week prior to the hearing. Notwithstanding jurisdictional boundaries, notice shall also be provided to property owners or purchasers of record within the land being considered, three hundred feet (300') of the external boundaries of the land being considered, and any additional area that may be substantially impacted by the proposed special use as determined by the commission; provided, that in all cases, notice shall be provided individually by mail to property owners or purchasers of record within the land being considered and within three hundred feet (300') of the external boundaries of the land being considered; and provided further, that where a special use permit is requested by reason of height allowance, that notice shall be provided individually by mail to property owners or purchasers of record within no less than three (3) times the distance of the height of the allowed height of a structure when more than one hundred feet (100') and within no less than one mile when the peak height of a structure in an unincorporated area is four hundred feet (400') or more, and when four hundred feet (400') or more, the structure’s proposed location and height shall be stated in the notice. Any property owner entitled to specific notice pursuant to the provisions of this section shall have a right to participate in public hearings before the planning and zoning commission. Denial of a special use permit or approval of a special use permit with conditions unacceptable to the landowner may be subject to the regulatory taking analysis provided for by Idaho Code section 67-8003, consistent with requirements established thereby.
   H.   Procedure For Approval Or Denial Of Permit:
      1.   After holding its public hearing, the city council may approve, conditionally approve or deny a conditional use permit under the conditions as herein specified and considering such additional safeguards as will make the use consistent with the objectives of this title and not in conflict with the comprehensive plan. If the application is approved or approved subject to conditions, the council shall direct the city clerk-treasurer to issue a conditional use permit listing the specific conditions specified by the council as prerequisites for approval.
      2.   Conditions Of Permit: Upon the granting of a conditional use permit, conditions may be attached to the permit including, but not limited to, the following:
         a.   Minimizing adverse impact on other developments;
         b.   Controlling the sequence and timing of the development;
         c.   Controlling the duration of the development;
         d.   Assuring that the development is maintained properly;
         e.   Designating the exact location and nature of the development;
         f.   Requiring the provision for on site or off site public facilities or services;
         g.   Requiring more restrictive standards than those generally required in this chapter; and
         h.   Minimizing the impact on schools, irrigation districts or water delivery systems.
      3.   Additional Information: Prior to making a recommendation or granting a conditional use permit, the city council may require additional information concerning social, economic, fiscal and environmental effects of the proposed conditional use.
      4.   Statement Of Standards: Upon granting or denying an application, the council shall specify:
         a.   The provisions and standards used in evaluating the application;
         b.   The reasons for approval or denial; and
         c.   The actions, if any, the applicant could take to obtain a permit.
      4.   Takings: Denial of a special use permit or approval of a special use permit with conditions unacceptable to the landowner may be subject to the regulatory taking analysis provided for by Idaho Code section 67-8003 consistent with requirements established thereby.
   I.   Notice To Applicant; Right to Appeal: Within thirty (30) days after a decision by the city council has been rendered, the zoning administrator shall provide the applicant with written notice of the action on the request. The applicant or any adversely affected person who appears in person or in writing before the city council may appeal the decision of the city council.
   J.   Automatic Termination For Nonuse: In the event the use which is permitted pursuant to a conditional use permit as granted by the city council is not commenced within one year from the date of issuance, the conditional use permit shall terminate automatically, as a stated condition of approval on the face of the permit, and shall become null and void and without any force or effect one year from the date of issuance. In addition, in the event that the use which is permitted pursuant to the conditional use permit is abandoned for a period of one year, the provisions of Idaho Code 67-6538(2) shall apply.
   K.   Violation; Penalties: Any person who violates any term of a conditional use permit shall be guilty of a misdemeanor and may be punishable in accordance with the general misdemeanor statutes of the state of Idaho. In addition, any work done in violation of a conditional use permit shall be subject to abatement. (Ord. 536, 6-10-2025)

10-5-2: VARIANCES:

The City Council may authorize in specific cases such variance from the terms of this title as will not be contrary to the public interest where, owing to special conditions, a literal enforcement of the provisions of this title would result in unnecessary hardship. No nonconforming use of neighboring lands, structures or buildings in the same zone and not permitted or nonconforming use of lands, structures or buildings in other zones shall be considered grounds for issuance of a variance. A variance shall not be considered a right or special privilege, but may be granted to an applicant only upon showing of undue hardship.
   A.   Application And Standards For Variances:
      1.   Information Required: A variance from the terms of this title shall not be granted by the City Council unless and until a written application for a variance is submitted to the Zoning Administrator, which application contains the following information:
         a.   Name, address and phone number of applicant.
         b.   Legal description of property.
         c.   A filing fee as set forth by resolution of the City Council.
         d.   A narrative statement demonstrating that the requested variance conforms to the following standards:
            (1)   That special conditions and circumstances exist which are peculiar to the land, structure or building involved and which are not applicable to other lands, structures or buildings in the zone;
            (2)   That a literal interpretation of the provisions of this title would deprive the applicant of rights commonly enjoyed by other properties in the same zone under the terms of this title;
            (3)   That special conditions and circumstances do not result from the actions of the applicant; and
            (4)   That granting the variance requested will not confer on the applicant any special privilege that is denied by this title to other lands, structures or buildings in the same zone. A variance attaches to the realty and is transferable with the title to the property.
      2.   Findings Required: A variance shall not be granted unless the City Council makes specific findings of fact based directly on the particular evidence presented to it which support conclusions that the above mentioned standards and conditions have been met by the applicant.
   B.   Supplementary Conditions And Safeguards: Under no circumstances shall the City Council grant a variance to allow a use not permissible under the terms of this title in the zone involved, or any use expressly or by implication prohibited by the terms of this title in said zone. In granting any variance, the City Council may prescribe appropriate conditions and safeguards and, when made a part of the terms under which the variance is granted, any deviation shall be deemed a violation of this title.
   C.   Public Hearing: Upon receipt of the application for a variance, the City Council shall publish notice in the official newspaper of the City, and give written notice to all parties as required by this title, and hold a public hearing.
   D.   Decision; Appeal:
      1.   After the public hearing, the City Council shall either approve, conditionally approve or disapprove the request for a variance.
      2.   Upon granting or denying an application, the City 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.   Within thirty (30) days after a decision has been rendered, the Zoning Administrator shall provide the applicant with written notice of the action on the request. The applicant or any affected person may appeal the decision of the City Council, in accordance with section 10-2-8 of this title. (Ord. 536, 6-10-2025)

10-5-3: REZONING; ZONING MAP AMENDMENTS:

The purpose of this chapter is to set forth the procedure for securing a zone change.
   A.    Zone Changes: Any change, modification or reclassification of zones may be initiated by the city council or by application of one or more property owners, purchasers, or holders of valid options to purchase property. When the application for change, modification, or reclassification is initiated by a property owner, purchaser, or holders of valid options to purchase property, the procedure set forth herein shall be followed, except that the City Council may, subject to the provisions for notice and publication of hearing, enlarge, expand and amplify a petition for change in reclassification of a zone or planned use classification.
   B.   Application Required: Every person seeking a reclassification of any land regulated by this title shall file with the zoning administrator an application therefor, upon a form prescribed by the planning and zoning commission, accompanied by a filing fee as specified by the schedule of fees. All applications for rezone shall conform to the requirements of Idaho Code section 67-6511, as it may be amended, modified, altered or changed.
   C.   Content: Every application shall contain or be accompanied by all information, plans and maps to scale and other data necessary to assure full presentation of pertinent facts for the records and to assist in making a determination in harmony with the objectives of this title. No application shall be accepted by the zoning administrator unless it is complete and in compliance with all such requirements and contains a designation of the proposed zone classification.
   D.   Notice And Publication of Hearing: Notice of time, place and purpose of each public hearing held by the City Council shall be given by publication in the official newspaper of the city at least fifteen (15) days prior to such hearing. When the public hearing is before the planning and zoning commission on a proposed change, modification or reclassification, notice shall be given by the zoning administrator to the last known owners of each parcel of land within three hundred feet (300') to the exterior boundary, by regular U.S. mail. In any hearing before the planning and zoning commission or the city council, where notice must be given to more than two hundred (200) persons, notice by publication, published at least fifteen (15) days prior to the hearing, setting out the time and place and a summary of the action requested to be taken, shall be published in the official newspaper or a paper of general circulation within the jurisdiction. Notice shall also be posted on the premises not less than one week prior to the hearing. In the event the planning and zoning commission originates, enlarges, extends and amplifies the application for the change, modification or reclassification of property, zone or land use classification, the zoning administrator shall be required to ascertain the names and addresses of the last known owners as the same appear on the records of the county assessor’s office of each parcel of land within three hundred feet (300') to the exterior boundaries of the land area sought to be enlarged, extended or amplified. The notice shall give the date, time and place of hearing, the name of the applicant and relief sought, and identification of the property, and such other facts as may be prescribed by the planning and zoning commission. In any public hearing, the presiding officer may order the hearing to be continued by publicly announcing the time and place of continuance, and no further notice thereof shall be required.
   E.   Standards Applicable To Zone Changes: The city council shall review the particular facts and circumstances of each proposed zone change and take the following factors into consideration:
      1.   The compatibility of the proposed zone with surrounding uses and zones.
      2.   Availability of power, water, sewer, fire protection, police protection and school facilities.
      3.   Access to highways.
      4.   Burdens imposed upon taxing entities for services which will have to be provided.
      5.   Location in relation to floodplain and airport approaches.
      6.   Easements, encumbrances, adverse interests.
      7.   The opinions of surrounding landowners entitled to notice.
      8.   Availability of drainage structures and refuse disposal.
      9.   Opinions of other local or state agencies required to provide services or issue permits.
      10.   Zone change will not set a precedence for future uses incompatible with existing uses.
      11.   Compatibility or conflict with the comprehensive plan.
      12.   Any other factors relevant to the suitability of rezoning the property.
   F.   Action By City Council: The city council shall hold a public hearing in accordance with this chapter. At every hearing before the City Council, the Council shall hear all persons interested in the subject matter. Not later than sixty (60) working days after the conclusion of the hearing, city council shall act upon the application by either approving, disapproving, or approving as a conditional rezone with a development agreement as provided in Section 10-5-4 of this Title.
   G.   Ordinance Required: In the event the city council shall have approved or modified the application, the city council shall cause to be prepared the appropriate ordinance of amendment.
   H.   Resubmittal: No application for the change or reclassification of any property, zone or land use classification, which has been denied by the city council, shall be resubmitted in either the same or substantially the same form, with reference to substantially the same premises or the same purpose, within one year from the date of final action thereon. Any party adversely affected by any action of the planning and zoning commission or city council may appeal pursuant to the appellant procedures contained in section 10-2-8 of this title. (Ord. 536, 6-10-2025)

10-5-4: DEVELOPMENT AGREEMENTS AND CONDITIONAL REZONING:

The purpose of a development agreement is to provide a vehicle for development in areas and for uses where, in the opinion of the city council or the planning and zoning commission, approval of a requested rezone by itself does not satisfy the requirements set forth in this title for rezone approval; but, that use of a development agreement will assure compliance with the required rezone findings and conclusions. Development agreements can be used after a determination has been made that the proposed rezone by itself is not appropriate, unless the use of a development agreement could allow development to proceed under stricter restrictions than those imposed generally in the proposed zoning district. Nothing in this chapter shall be construed as relieving the property which is subject to development agreement restrictions from further compliance with all other permit and code requirements applicable because of the zoning designation of the property. Restrictions imposed upon property as a result of a development agreement are in addition to all other requirements of this title.
   A:   Submittal: After an application for rezone has been received by the zoning administrator, a request to enter into a development agreement for that parcel may be submitted by the rezone applicant; or a development agreement may be required by the city council at the city council’s rezone hearing.
      1.   In the event of the City Council determines that a development agreement should be entered into, the City Council may remand the matter back to the applicant requiring an application for a development agreement to be submitted by the applicant, unless the applicant has already done so and a public hearing was held under this section. If the applicant agrees to submit an application for a development agreement, then the City Council shall defer its decision on the rezone application until a public hearing is held on the development agreement application. After the public hearing on the development agreement application is held, the City Council shall render its decision on both the rezone and development agreement requests.
      2.   In the event of a determination by the city council that a development agreement should be entered into, the city council shall remand the matter back to the planning and zoning commission, with the city council requiring an application for a development agreement to be submitted by the applicant, unless the applicant has already done so and a public hearing was held under subsection A of this section. The city council shall, upon remand, direct the planning and zoning commission on the specific issues to be addressed by the development agreement. The planning and zoning commission shall then proceed as specified in this section.
      3.   In the event a developer seeks to enter into a development agreement, the developer’s application for a development agreement shall be taken up by the City Council at the time of the scheduled rezone hearing. The City Council shall, following consideration of the rezone and development agreement applications, render its decision regarding each of the applicant’s requests.
   B.   Time Limits: Upon request for a development agreement, all time limits required by this title may be stayed upon affirmative vote of the city council.
   C.   Form Of Development Agreement Application: All applications for development agreements shall be in a form as required by the city clerk or the zoning administrator. No application shall be accepted which does not include the following:
      1.   An affidavit by the owner of the property agreeing to submission of the use and property for a development agreement.
      2.   The specific use or uses of the property upon which the development agreement is sought.
      3.   The concept plan, which shall include at a minimum:
         a.   Three (3) site plans and eleven inch by seventeen inch (11" x 17") reduction showing:
            (1)   Existing structures which will remain, labeled as to existing and proposed uses.
            (2)   Building footprint, height, number of stories, proposed uses (office, retail, restaurant, etc.), and square footage of proposed structures. If residential, overall density and number of dwelling units per building. (If single-family residential, information on proposed structures is not necessary.)
            (3)   North arrow.
            (4)   Scale.
            (5)   Property boundary.
            (6)   Names of applicant, owner (if different than applicant), plan preparer and project.
            (7)   Size of project.
            (8)   Existing vegetation, labeled as to remain or be removed.
            (9)   Existing and generalized proposed grades for hillside developments.
            (10)   Parking areas with total number of parking spaces shown.
            (11)   Locations and widths of rights of way, easements, canals, ditches and property lines.
            (12)   Drainage features.
            (13)   Conceptual landscape plan.
      4.   The time period for which the agreement is requested to be valid, including the time period with which the development or use must commence and the time period within which the development and the terms of the agreement are to be completed.
      5.   A statement that failure to comply with all commitments in the approved development agreement shall be deemed a consent to rezone the property to the preexisting zone, or in the case of an initial zone at annexation, a zone deemed appropriate by the city council.
      6.   If the development agreement is being requested by the rezone applicant, as opposed to having been required by the city council, a statement must be included that all time limits required by this title are waived.
      7.   Phasing plan and proposed phasing schedule.
   D.   Process: Upon receipt of an application for development agreement, the zoning administrator shall work with the applicant to prepare a development agreement. The development agreement shall include the requirements of section 10-5-4 -C of this chapter and any other matter which, in the discretion of the zoning administrator, would address the concerns for the development which has been proposed by the applicant. Such concerns addressed may include, but shall not be limited to, density, bulk, site design, mitigation of impacts on the surrounding neighborhood, appearance, provision of utilities or public facilities, and restrictions on use. The draft of the development agreement shall be reviewed by the city attorney and design review committee prior to being sent to the planning and zoning commission.
   E.   Approval: The city council shall hold a public hearing on the draft agreement and the rezone request, and shall review the recommendation from staff, and consider any relevant testimony and evidence provided at the public hearing. The city council may approve, deny, and may add conditions, terms, duties or obligations to the development agreement. Development agreements may be approved at the sole discretion of city council.
   F.   Recording: Upon approval of a development agreement or any modification thereto by the city council and the applicant, it shall be recorded at the expense of the applicant and prior to the rezone approval. Proof of recording must be submitted by the applicant prior to the adoption of the rezone ordinance by the city council. The development agreement, or any modification thereto, and all conditions, terms, duties or obligations included therein, shall run with the land and shall be considered continuing obligations of the owner, co-owners and each other person acquiring an interest in the property. An owner, co-owner, each subsequent owner or other person acquiring an interest in the property which is restricted by a development agreement or modification adopted pursuant to this chapter, shall comply with the terms, conditions, obligation and duties contained in the development agreement or modification.
   G.   Modification: Development agreements may only be modified after public hearing by the city council.
   H.   Termination:
      1.   Development agreements may be amended or terminated by the city council, after public hearing, for failure to comply with the commitments expressed in the development agreement.
      2.   Upon termination of the development agreement, the city council shall revert the property to the prior zone, or in the case of an initial zone at annexation, to a zone deemed appropriate by the city council. All uses of the property which are not consistent with the subsequently designated zone following termination of the development agreement shall cease. The owner of the property shall apply for a conditional use permit for the property if the use is conditionally allowed within the subsequently designated zone.
      3.   Development agreements may be enforced by the city through any means deemed to be appropriate, including, but not limited to, specific enforcement, injunctive relief, damages or criminal penalty for violation of this chapter. The enforcement options available to the city shall not be considered exclusive. (Ord. 536, 6-10-2025)