Within each zoning district, there are certain uses that are permitted as a conditional use. Conditional uses provide a level of flexibility in zoning regulations. They allow local authorities to consider and approve uses that are not permitted "by right" in a given zoning district but can be deemed acceptable under certain conditions. These listed conditional uses under each district are illustrative of those which the Planning Commission may approve permanently or approve for a specific time interval. Additionally, other conditional uses may be allowed, which are not listed, provided they are not contrary to the overall intent of the Chapter 17 of the Custer Municipal Code and South Dakota Codified Law.

(Ord. 910 (part), 2024: Ord. 805, 2018)

   A.   Applications: any person, firm, or corporation may apply for a conditional use permit. If such person, firm, or corporation is acting as an authorized agent, written authorization consenting to the application shall be provided by the property owner. An application shall be provided by the city and returned to the City Planner. The completed application along with all supporting documentation shall be submitted to the City Planner at least twenty (20) days prior to the next regularly scheduled Planning Commission meeting and shall illustrate:

      1.   A written request pertaining to the proposed use;

      2.   A complete legal description of the property, maps identifying the property, any diagrams of the property;

      3.   A site plan that shall include the following information:

         a.   The proposed land uses and any specific services to be offered;

         b.   All property lines and dimensions of the lot(s);

         c.   The adjacent land use;

         d.   The existing and proposed structures, dimensions, and location of all facilities (i.e. pump stations, gas tanks, etc.);

         e.   The proposed and existing improvements, including septic systems, drain fields, wells, cistern systems, parking and roads;

         f.   The proposed and existing signs and their locations; and

         g.   The relationship of the proposed development to the surrounding area.

   B.   Fees: Upon filing any application for a conditional use permit, the applicant shall pay Custer City the appropriate fee(s) as set forth by the fee schedule adopted annually by resolution.

(Ord. 910 (part), 2024: Ord. 805, 2018)

   The following shall be the procedures used after an application for a conditional use and the required fees have been submitted to the city:

   A.   The City Planner shall review the completed conditional use application and determine if granting the conditional use would be contrary to the criteria set forth in Section 17.52.040 of this code. Additionally, any application not containing and/or addressing all the information required in Section 17.52.020, shall be rejected, and returned to the applicant with the reasons for rejection.

   B.   If the City Planner finds the application complies with the application requirements, the City Planner shall present the application along with his/her recommendation concerning the granting of a Conditional Use Permit at the next regularly scheduled Planning Commission meeting that is more than twenty (20) days from when the completed application was submitted. At the meeting, any interested person shall be given a full, fair, and complete opportunity to be heard.

      1.   After the application is added to the Planning Commission agenda, notice of the application shall be given by sign, mail, and newspaper.

         a.   Sign: A sign will be furnished by the City Planner and posted by the City Planner or designee. The sign must be posted in plain public view at the property where the conditional use is requested and must be posted no less than ten (10) days prior to the date of the Planning Commission meeting and must remain posted until final action by the Planning Commission is completed. The sign shall comply with SDCL 11-4-4.4.

         b.   Mail: A minimum of ten (10) days prior to the public hearing, the City Planner shall notify all property owners within two hundred fifty (250) feet from the property boundary line of the property being considered for a Conditional Use Permit. Any adjacent property under the applicant's ownership shall not be considered for measurement of such area, and in such situation, the measurement shall begin at the next contiguous property boundary line. Mail notification shall be given by use of a "Notice of Hearing" form established by the City Planner and shall be sent by First Class Mail.

         c.   The City Planner will publish legal notice in the local newspaper at least ten (10) days prior to the Planning Commission's meeting.

   C.   The Planning Commission shall approve or deny the application following a review of the application in accordance with the requirements set forth in Section 17.52.040 of this code. The findings of the Planning Commission shall be documented in a written statement that includes the following:

      1.   An explanation of whether the criteria listed in Section 17.52.040 of this code has or has not been met. If certain criteria do not apply, an explanation of why it does not comply shall also be provided.

      2.   A voting record of the Planning Commission and the date of the Planning Commission's action. This information may be included within the regular meeting minutes of the Planning Commission.

      3.   If the action is to deny the application, the reasons for such action shall be stated in the minutes of the meeting and a specific reference shall be made to the requirements not met.

(Ord. 910 (part), 2024: Ord. 842, 2020: Ord. 805, 2018)

   Generally, the granting of any conditional use shall be in harmony with the general purposes and intent of the zoning ordinance and will not be injurious to the neighborhood, detrimental to the public welfare, or be in conflict with the comprehensive plan for development. The following are considerations the Planning Commission may use in determining the approval or denial of a conditional use permit, and supporting documentation may be requested:

   A.   That adequate utilities, public safety, water supply, sewage disposal, surface drainage, flood control, soil conservation, access roads, drainage and other necessary facilities have been considered and/or are being provided;

   B.   That the conditional use is consistent with the surrounding area in terms of character and density;

   C.   That the conditional use conforms with and is a compatible use within the comprehensive plan;

   D.   The proposed use shall be in compliance with all other ordinances;

   E.   The proposed use shall comply with all specific restrictions and requirements of the zone district;

   F.   The proposed use shall be eligible for a conditional use permit based on the zoning district;

   G.   Lighting shall be designed so that it presents a minimal impact to adjacent property. All exterior light sources must be shielded and directed downward;

   H.   The proposed use shall have adequate vehicular access and parking to serve the proposed use;

   I.   The proposed use shall comply with all applicable state licensing requirements and/or regulations;

   J.   The applicant shall submit proof of commercial liability insurance for the proposed use; and

   K.   That the Planning Commission may impose reasonable conditions in granting a conditional use on the condition that the individual accepting those conditions is bound by them; and that the Commission may consider any public comments and comments from public officials.

(Ord. 910 (part), 2024: Ord. 805, 2018)

   The Planning Commission's action taken on a conditional use permit application may be appealed to the Board of Adjustment by any person aggrieved by the decision. Upon filing an appeal of the Planning Commission's action taken on a conditional use permit, the applicant shall pay Custer City the appropriate fee(s) as set forth by the fee schedule adopted annually by resolution and the appeal shall be conducted using the following procedure:

   1.   Notice of appeal must be filed with the City Planner within ten (10) day of the decision of the Planning Commission. The notice of appeal shall specify the grounds of the appeal, which shall include specific reference to the Planning Commission's finding(s) alleged to be in error or how the city failed to regularly pursue its authority. If a notice of appeal is accepted by the City Planner, the approval of the CUP in question shall be stayed until the appeal is finally resolved by the issuance of the Board of Adjustment's decision.

   2.   The Appeal will be placed as a public hearing item on the next regular Board of Adjustment meeting that is at least 20 days from when the appeal was submitted.

   3.   The City Planner shall compile the record and forward it to the Board of Adjustment no later than ten (10) days before the public hearing.

   4.   The record shall be a public document and will consist of the CUP application, staff report, minutes of the Planning Commission meeting where the CUP was considered, findings of fact and conclusion by the Planning Commission, and any relevant attachments or exhibits.

   5.   The City Planner shall send, by first-class mail postmarked a minimum of ten (10) days prior to the date of the board of adjustment public hearing, a notice to the following:

   a.   Each person who provided his or her mailing address while offering testimony during the planning commission hearing when the CUP was first approved.

   b.   Each owner of record of each parcel situated within two hundred and fifty feet (250) feet of the subject property, exclusive of rights-of-way.

   c.   The notice shall include the date, place, and time of the public hearing of the Board of Adjustment. The notice shall include a statement that copies of the record of the Planning Commission's decision are available for review and photocopying at the office of the City Planner. Copies of the record may be subject to a Public Records Request process and related fees.

   6.   It shall require a two-thirds (2/3) vote of the members of the Board of Adjustment to reverse or modify the decision of the Planning Commission. (Ord. 910 (part), 2024: Ord. 805, 2018)

   Amendments to a conditional use permit shall be processed in the same manner as required for a standard conditional use permit. Any material changes to the terms of approval are considered an amendment and require the approval of Planning Commission. Examples of changes that require Planning Commission approval include but are not limited to: changes in the site plan, layout, access, parking, number and location of sites, utilities, roadways, hours of operation, and any changes to the specific conditions of the original CUP.

(Ord. 910 (part), 2024: Ord. 805, 2018)

   No applicant requesting a conditional use permit whose application includes the same or substantially the same requirements for the same or substantially the same property as that which has been denied by the Planning Commission shall reapply again before the expiration date of one (1) year from the date of the final action on the petition. The reapplication for a conditional use permit shall be processed in the same manner as a new application.

(Ord. 910 (part), 2024: Ord. 805, 2018)

   A conditional use permit which has been approved by the Planning Commission shall remain valid only by the terms originally approved.

(Ord. 910 (part), 2024: Ord. 805, 2018)

   When a property subject to an existing conditional use permit is conveyed to another owner or the subject matter of a contract for deed, a change of ownership notice is required. The change of ownership notice shall be acknowledged by the City Planner. The notice shall include the following:

   A.   Contact information for new owner subject to the CUP.

   B.   A copy of the existing conditional use permit, which is on file in the Planning Department.

   C.   A signed statement acknowledging the existing conditions of the permit.

   D.   The fee for the change of ownership notice is set by the City of Custer City Fee Schedule.

(Ord. 910 (part), 2024)

   A conditional use permit which has been approved by the Planning Commission shall expire by limitation and become null and void if:

   A.   The building, work, or use authorized by such permit is not commenced within two years from the date of the approval.

   B.   The use authorized by such permit has been discontinued for a time period of more than one (1) year.

(Ord. 910 (part), 2024: Ord. 805, 2018)

   The Planning Commission may, at their discretion at the time of the original conditional use permit action, require the person requesting a conditional use permit provide the Commission a written annual report, onsite review, or that the person requesting the permit attend a Planning Commission meeting, or all of the above, on the anniversary date of the approval of the conditional use permit. The annual report, onsite review, or attendee at a Commission meeting shall update the Commission on the permit holder's compliance with the terms, requirements, and conditions stipulated in the approval of the permit.

(Ord. 910 (part), 2024: Ord. 805, 2018)

   A Conditional Use Permit may be revoked by the Planning Commission only for cause, consisting of failure to maintain the standards or conditions under which the CUP was issued, and according to the following procedure:

   1.   A notice of intent to revoke a CUP shall be sent by the City Planner to the person that holds the CUP. The notice shall be in writing and sent via certified mail or hand delivery, and shall specify the area or areas of failure to meet requirements and maintain conditions that may have been imposed and provide a deadline for compliance.

   2.   If, prior to the deadline, proof of compliance is made by the holder of the CUP, the CUP shall be continued in force.

   3.   Upon notice of intent to revoke, the holder of a CUP has the right to request a public hearing. If such a request is made, the Planning Commission shall hold a public hearing on the matter and make a final determination on the revocation.

   4.   If, upon receiving a notice of intent to revoke, the holder of a CUP requests a public hearing, the City Planner shall send, by certified mail postmarked a minimum of ten (10) days prior to the date of the Planning Commission revocation public hearing, a notice of the date, place, and time of such public hearing to such holder and to each owner of record of each parcel situated within two hundred and fifty (250) feet of the subject property, exclusive of rights-of-way.

   5.   If, following notice, the holder of a CUP does not assert his or her right to a public hearing, the CUP shall be deemed to be revoked on the thirty-first (31st) day following the notice.

(Ord. 910 (part), 2024: Ord. 805, 2018)