The purpose of this article is to set out the development review bodies that are responsible for the administration of this UDC. This section describes the roles and responsibilities and general rules of procedure of the city council, planning commission, board of adjustment, and city staff with respect to the administration of this UDC.

A.

City Council. The provisions of Subsection 11-303.01., City Council, are intended to establish the city council's role with respect to decisions about individual properties pursuant to this UDC. No part of this UDC restricts or limits any other powers that are granted to the city council by federal law, state statue, or the city's municipal code.

B.

Other Administrative Bodies. The provisions of this section that relate to other bodies are representative of the authority that the city council has delegated to them with respect to application and enforcement of this UDC.

C.

No Implied Limitation. The provisions of this section shall not be a limitation regarding the conduct of councils, commissions, and boards where additional responsibilities or authority are set out elsewhere in this UDC, the municipal code, or through policies adopted by the city council, or by a commission or board as approved by the city council.

A.

Generally. The city council has all powers conferred upon it by the Fremont Municipal Code ("FMC"), and the laws of the state of Nebraska. With respect to decision-making pursuant to this UDC, in addition to the authorized acts of the FMC, the city council will exercise the powers set out in this subsection.

B.

Approvals. After a public hearing is held and after reports and recommendations are provided by a board or commission, the city council shall hear and decide the following:

1.

Plans and programs for the development and redevelopment of its area of jurisdiction. This includes, but is not limited to, amending the text and maps of the comprehensive plan;

2.

The city's Capital Improvements Program ("CIP");

3.

Other policies or procedures to facilitate implementation of planning elements;

4.

Proposed amendment of the text of this UDC;

5.

Proposed amendment of the official zoning map, including conditional use permits;

6.

Preliminary plats, final plats, Conditional Use Permits and waivers upon recommendation of the planning commission;

7.

City designation of historic properties and districts, upon recommendation of the planning commission; and

8.

Any other action not delegated to any other board or commission as the city council may deem desirable and necessary to implement the provisions of this UDC and the goals and objectives of the city, provided such action is not contrary to the requirements of the FMC or state law.

C.

Appeals. The city council shall hear and decide appeals from decisions of a board or commission after a public hearing, as set out in Section 11-317, Variances, Appeals, and Interpretations.

(Ord. No. 5463, 9-25-18)

A.

Generally. There shall be a planning commission ("commission"), the membership, terms of office, and rights and duties shall be in accordance with NRS § 19-925, and FMC § 2-112, as amended from time to time. This section is adopted pursuant to these statutory and municipal authorizations. Consequently, amendment of the state statute after the effective date may modify, delete, or supplement the provisions of this subsection. The planning commission shall also adopt rules for the transaction of its business and shall keep a record of its resolutions, transactions, findings and determinations, which records shall be a public record.

The planning commission shall consist of nine members who shall represent insofar as possible, different professions or occupations in the City and shall hold no other municipal office, except when appointed to serve on the board of adjustment. Two of such members may be residents of the area over which the city is authorized to exercise extraterritorial zoning and subdivision control. When there are 1,000 residents in the area over which the city exercises territorial zoning and subdivision control, one member of the commission shall be a resident from such area.

The members of the planning commission shall be appointed by the Mayor, with the approval of a majority vote of the members elected to the city council. All members of the planning commission shall serve as such without compensation. The terms of each appointed member of the planning commission shall be three years; except that three members of the first commission appointed shall serve for the term of one year, three for the term of two years, and three for the term of three years. All members shall hold office until their successors are appointed.

Any member of the planning commission may, after a public hearing before city council, be removed by the Mayor, with approval of a majority vote of the members elected to the city council, for inefficiency, neglect of duty, malfeasance in office or other good and sufficient cause. Vacancies occurring in the membership of the planning commission, otherwise than through the expiration of the term, shall be filled for the unexpired term, by the Mayor, with approval of a majority vote of the members elected to the city council.

The planning commission shall elect its chairperson from its members and shall create and fill such other of its offices as it may determine. The term of the chairperson shall be one year (and until his/her successor shall have been elected and qualified). The chairperson shall be eligible for reelection. The term of other offices and their eligibility or non-eligibility for reelection shall be determined and fixed by the commission, with the exception of the secretary. It shall be the duty of the secretary to keep a true and correct record of all proceedings at such meetings, in a book or books to be specially kept for that purpose. The zoning administrator shall serve as secretary to the commission.

The commission shall hold at least one regular meeting in each month at such time and place as may be fixed by the commission, when business is at hand. Special meetings of the commission may be called by the chairperson, or in his/her absence, by such other office as may be designated by the commission, or by any three members of the commission. A majority of the members appointed to the planning commission shall constitute a quorum for the transaction of business. A majority vote of all the members present at the planning commission shall be required to pass any measure or elect to any office of the commission.

B.

Function. The planning commission shall undertake a continuing planning program for the physical, social, and economic growth, development, and redevelopment of the area within its jurisdiction. The plans and programs must be designed to promote public health, safety, morals, convenience, prosperity, or the general welfare, as well as the efficiency and economy of its area of jurisdiction.

C.

Powers and Duties. The planning commission is delegated the following powers:

1.

Studies and Policy Recommendations to the City Council. The planning commission is empowered to, on its own initiative or as requested by the city council:

a.

Review and recommend preliminary plats to the city council;

b.

After a public hearing, review and recommend the appropriateness and acceptance or denial of petitions for annexation, zoning change, conditional use permits, and designation of historic properties or districts;

c.

Submit reports, plans, and recommendations for the orderly growth, development and welfare of the city; and

d.

Periodically review the comprehensive plan, this UDC and the official zoning map and make recommendations regarding amendments.

2.

Other Powers of the Planning Commission.

a.

Ensure that new development is consistent with the policies of the comprehensive plan;

b.

Regarding subdivision and land development:

1.

Establish procedures and standards governing the preparation, filing, and approval of land subdivision plats and data to be submitted for approval;

2.

Establish minimum standards governing storm water management; flood damage prevention; streets, sidewalks, and utilities; parking, loading, and access; lighting; and other required improvements;

3.

Ensure conformance of subdivision and site development plans with the capital improvement program of the city; and

4.

Ensure that subdivisions and subdivision improvements are designed to:

a.

Reduce potential impacts on street congestion;

b.

Promote the orderly layout and use of land;

c.

Secure safety from fire and other dangers;

d.

Mitigate the impacts and threats of life and property due to flooding resulting from significant storm events;

e.

Facilitate adequate provision of transportation, potable water, waste water, schools, parks, playgrounds, and other public requirements;

f.

Protect residential neighborhoods from the hazard of high-speed through traffic; and

g.

Protect groundwater and surface water resources from contamination.

c.

Regarding the designation of historic properties and districts:

1.

Maintain a local inventory of buildings, structures, objects, and sites more than 50 years old, which records shall be available to the public;

2.

Conduct and/or maintain an ongoing survey to identify historically and architecturally significant properties, structures, and areas that exemplify the cultural, social, economic, political, or architectural history of the city;

3.

Keep a register of all properties and structures that have been designated as landmarks or historic districts, including all information required for each such designation;

4.

Recommend criteria for the designation of historic properties and the delineation of historic districts, which may be adopted by the city council;

5.

Advise owners of all properties or structures within historic districts about the physical and financial aspects of preservation, renovation, rehabilitation, and reuse and, where appropriate, to advise such owners of the procedures of the inclusion of structures on the National Register of Historic Places;

6.

Work in conjunction with the zoning administrator, or an appointee, to inform and educate the citizens of Fremont concerning the Historic Neighborhood (HN) conservation overlay district's historic and architectural heritage by publishing appropriate maps, newsletters, brochures, and pamphlets; by holding programs and seminars; and through media exposure;

7.

Consider, analyze, and make a determination with respect to all applications for certificates of appropriateness by applying the standards set out in Subsection 11-624.04., Historic Neighborhood (HN) Conservation Overlay District;

8.

Make recommendations for amendments to the general standards of Subsection 11-624.04., Historic Neighborhood (HN) Conservation Overlay District, with final approval of the general standards to be accomplished by resolution of the city council. Once approved, to implement any amendments to the general standards;

9.

Make recommendations to the city council concerning the utilization of federal, state, local, or private funds or tax incentives to promote the preservation or rehabilitation of heritage properties and historic districts within the city; and

10.

Hear and act upon appeals regarding the acceptance and granting of a certificate of compliance by the zoning administrator, or an appointee.

D.

Referral of Matters to the Planning Commission; Reports. The city council may refer any matters or class of matters to the planning commission, with the provision that final action on it may not be taken until the planning commission has submitted a report on it or has had a reasonable period of time, as determined by the city council, to submit a report.

E.

Authority.

1.

In general, the planning commission has the powers as may be necessary to enable it to perform its functions and promote the planning of its jurisdiction.

2.

The planning commission and its members, in the performance of its functions, may enter upon any land with consent of the property owner.

(Ord. No. 5463, 9-25-18)

A.

Generally. There shall be a board of adjustment ("board"), the membership, terms of office, and rights and duties of which shall be in accordance with NRS § 19-907 to 19-912, as amended from time to time. The board shall be established to provide relief in situations of hardship or to hear appeals as provided in Section 11-317., Variances, Appeals, and Interpretations.

B.

Rules. The board shall adopt rules in accordance with the provisions of this subsection and NRS § 19-901 to 19-914.

C.

Membership. The board shall consist of five regular members, plus one additional alternate member who shall attend and vote only when a member is unable to attend for any reason. At least one member of the board shall reside outside of the corporate limits but within the extraterritorial jurisdiction.

D.

Terms. Each member shall be appointed by the mayor with the approval of the city council for a three-year term and is removable for cause by the appointing authority upon written charges and after public hearings; except that three members of the first board appointed shall serve for the term of one year, three for the term of two years, and three for the term of three years. All members shall hold office until their successors are appointed. Vacancies shall be filled for the unexpired term of any member whose term becomes vacant. One member of the board shall be appointed from the planning commission, and the loss of membership on the planning commission by such member shall also result in the immediate loss of membership on the board and the appointment of another planning commissioner to the board.

E.

Meetings. Meetings for board shall be held at the call of the chairperson and at such times the board may determine. In the chairperson's absence, the acting chairperson may administer oaths and compel the attendance of witnesses. All meetings shall be open to the public and preceded by due advertisement, pursuant to NRS § 84-1411 and Section 11-314.09. Public Notice.

F.

Powers and Duties. The board shall hear and decide upon:

1.

Appeals. To hear and decide appeals where it is alleged there is error in any order, requirement, decisions, or determination made by the zoning administrator, or appointee, or another administrative official or agency, in the enforcement of this UDC or any regulations relating to the location or soundness of structures, except that the authority to hear and decide appeals shall not apply to decisions made under NRS § 19-929;

2.

Interpretations. Interpretation of any map; and

3.

Variances. To authorize, upon appeal, variances so as to relieve difficulties or hardship from the strict application of these regulations where by reason of exceptional narrowness, shallowness, or shape of a specific piece of property at the time of enactment of the UDC; or by reason of exceptional topographic conditions or other extraordinary and exceptional situation or condition of such piece of property, the strict application would result in peculiar and exceptional practical difficulties to or exceptional and undue hardships upon the owner of such property.

a.

Requirements for Granting a Variance. No variance shall be authorized by the board unless it finds that:

1.

Strict application of the zoning regulations will produce undue hardship;

2.

Such hardship is not shared generally by other properties in the same zoning district and within the same vicinity;

3.

The authorization of such variance will not be of substantial detriment to adjacent property and the character of the district will not be changed by the granting of the variance;

4.

The granting of such variance is based upon reason of demonstrable and exceptional hardship as distinguished from variations for purposes of convenience, profit, or caprice;

5.

The condition or situation of the property concerned or the intended use of the property is not of so general or recurring a nature as to make reasonably practicable the formulation of a general regulation to be adopted as an amendment to the zoning regulations; and

6.

The granting of the variance will not cause substantial detriment to the public good and will not substantially impair the intent and purpose of this UDC or other ordinances/resolutions.

b.

Findings by Board. The board shall make findings that the requirements of Subsection F.3.a., above, have been met by the applicant for a variance.

c.

Conditions for Granting a Variance:

1.

In granting any variance, the board may prescribe appropriate conditions and safeguards in conformity with these regulations. Violation of such conditions and safeguards, when made in part of the terms under which the variance is granted, shall be deemed a violation of these regulations and punishable under Subsection 11-333.02., Violations;

2.

Under no circumstances shall the board grant a variance to allow a use not permissible under the terms of this UDC, or any use expressly or by implication prohibited by the terms of this UDC;

3.

No nonconforming use of neighboring lands, structures, or buildings in the same district and no permitted or nonconforming use of lands, structures, or buildings in other districts shall be considered grounds for the issuance of a variance.

G.

Vote to Transact Business. A majority of the board shall constitute a quorum for the transaction of business. The concurring vote of four members of the board shall be necessary to reverse any order, requirement, decision, or determination of any administrative official, or to decide in favor of the applicant on any matter upon which it is required to pass under this UDC, or to effect any variation of this UDC.

H.

Referral of Matters to Planning Commission; Reports. If the board believes that the standards for granting a variance or an appeal have not been met, but that the applicant has made a reasonable argument instead that there may be grounds for review of a provision of this UDC, then the board shall forward a report on the matter to the planning commission for discussion. The planning commission retains full discretion regarding enforcement of the specified UDC provision, and shall act upon the board's report if it concurs that a text amendment may be reasonable. Upon such a general finding, the planning commission shall place the item on a subsequent agenda for further discussion or consideration.

I.

Duties of Secretary. It shall be the duty of the secretary to keep a true and correct record of all proceedings at such meetings, in a book or books to be specially kept for that purpose. The zoning administrator shall serve as secretary to the board.

J.

Minutes. The board shall keep a record of its proceedings, showing the vote of each member upon each question, or, if absent or failing to vote, indicating such fact, and shall keep records of its examinations upon other official actions, all of which shall be immediately filed in the office of the board and shall be a public record.

K.

Appeals. Any person(s), or any board, taxpayer, officer, department, board or bureau of the city aggrieved by any decision of the board may seek review of such decision by the district court for the county in the manner provided by the laws of the state and particularly by NRS § 19-912, R.R.S. 1943 (Reissue 1991), and any amendments thereto.

A.

Generally. The zoning administrator is a member of the city staff who is ultimately responsible for processing an application to decision (in case of administrative approval) or recommendation to another review body (in case of public meeting and hearing approvals). The zoning administrator may designate staff members to manage applications through the review process and to be points of contact for applicants, and to perform such other functions and duties as may be required of the zoning administrator by this UDC. The zoning administrator may also designate review responsibilities to other members of the city staff with relevant technical training or expertise, or, as appropriate, to consultants that are authorized by the city council.

B.

Duties and Responsibilities. For the purpose of reference, the zoning administrator has the following duties and responsibilities with respect to the administration of this UDC - such duties may be allocated and reallocated by the city administrator in the exercise of the responsibilities of that office without amendment to this UDC:

1.

General Administration. The zoning administrator shall:

a.

Interpret the general intent and/or specific meaning of any portion of the comprehensive plan, this UDC, location of district boundaries, district designations, or other matters relating to the same;

b.

Maintain the official zoning map and record all amendments to and information thereon;

c.

Provide public information relating to zoning matters including scheduled meetings of the planning commission and board of adjustment;

d.

Receive, process, and archive all applications associated with this UDC;

e.

Undertake reviews, make recommendations, and grant approvals as set forth in this UDC, and particularly as set out in Section 11-315, Administrative Permits and Procedures;

f.

Register and maintain records and maps of nonconforming uses, structures, and sites including nonconforming lots or tracts;

g.

Serve as general liaison and secretary to the planning commission and board of adjustment;

h.

Revoke permits or certificates in violation of the provisions of this UDC;

i.

Identify code violations and shall enforce the provisions of this UDC and approvals granted hereunder pursuant to Section 11-333, Enforcement and Remedies, including but not limited to issuance of all notices or orders to ensure compliance with this UDC; and

j.

Be responsible for all other responsibilities as the city council or city administrator may assign from time to time.

2.

Processing Permits and Applications. The zoning administrator, or an appointee, shall:

a.

Receive and log applications for development approval and variances;

b.

Review application materials and verify that applications are complete;

c.

Communicate with applicants to inform them that their applications are complete or not complete; and if the applications are not complete, what items are required to complete the application;

d.

Manage the processing of applications according to Section 11-314, Standardized Development Approval Procedures;

e.

Process and review all applications (or cause the applications to be reviewed) and either decide applications or make a recommendation regarding how the application should be decided (depending upon the type of application);

f.

Set applications on agendas of the planning commission, board of adjustment, or the city council, as appropriate;

g.

Provide public notice as may be required by the provisions of Subsection 11-314.09., Public Notice; and

h.

Promptly issue written permits, resolutions, or order that reflect the substance of approval granted by the city pursuant to this UDC.

3.

Recommendations. The zoning administrator shall provide professional recommendations regarding:

a.

Whether applications that are placed on an agenda of the planning commission, board of adjustment, and city council comply with the requirements of the UDC, and, if not, whether conditions of approval could be imposed to bring the application into compliance (including specification of such conditions).

b.

Whether amendments to the comprehensive plan or this UDC are advisable to, among other things:

1.

Bring the comprehensive plan or this UDC into conformity with state or federal requirements as they change over time;

2.

Respond to changing demographics, physical conditions, technological advancements, or economic conditions;

3.

Implement amendments to the comprehensive plan or other adopted plans of the city; or

4.

Resolve errors, internal inconsistencies, or other administrative matters.

4.

Whether amendments to the comprehensive plan or the UDC that are proposed by persons or bodies outside of the city are appropriate to serve their stated purposes.

Floodplain Administration. In designated flood hazard areas delineated on the Federal Emergency Management Agency ("FEMA") maps, the floodplain administrator shall:

A.

Advise applicants that additional federal and state permits may be required. Assure that all necessary permits have been received from those government agencies from which approval is required by federal or state law, including Section 404 of the Federal Water Pollution Control Act Amendments of 1972, 33 U.S.C.1334.

B.

Notify adjacent property owners and the Nebraska Department of Environmental Quality ("NDEQ"), and other state or federal agencies prior to any alteration or relocation of a watercourse and subsequently, submit evidence of such notification to FEMA.

C.

Assure in writing by the owner within the altered or relocated portion of a watercourse that appropriate maintenance is provided so that the flood carrying capacity is not diminished.

D.

Make interpretations, where needed, as to the exact location of the boundaries of special flood hazard areas (e.g., where there appears to be a conflict between a mapped boundary and the actual field conditions.

E.

In coordination with the building official:

1.

Verify and record the actual elevation (relative to mean sea level) of the lowest floor (including basement) of all new or substantially improved structures.

2.

Verify and record the actual elevation (relative to mean sea level) to which the new or substantially improved structures have been flood-proofed.

F.

Obtain certification from a registered professional engineer or architect when flood proofing is utilized for a particular structure.

G.

Obtain, review, and utilize any base flood elevation data available from federal, state, or other sources when such data are not available from FEMA.

H.

Maintain all records pertaining to the provisions of this UDC, which records shall be open for public inspection during workday hours.

I.

Review subdivision proposals and other proposed new development to determine whether such proposals will be reasonably safe from flooding. If a subdivision proposal or other proposed new development is in a flood-prone area, any such proposal shall be reviewed to assure that:

1.

All such proposals are consistent with the need to minimize flood damage within the flood-prone area;

2.

All public utilities and facilities, such as water, waste water, gas, electric, and storm water systems are located and constructed to minimize or eliminate flood damage; and

3.

Adequate drainage is provided to reduce exposure to flood hazards.

J.

Enforce the floodplain management and flood hazard reduction standards of this UDC; and

K.

Coordinate with the mayor, city administrator, director of public works, zoning administrator and building official to recommend approval, approval with conditions, or denial of waivers from Subsection 11-405.02, Floodway (FW) Overlay and Flood Fringe (FF) Overlay Districts.

A.

Generally. With respect to the administration of this UDC, the director of public works, or a designee, is generally responsible for verifying that all standards and quality assurance requirements are met for public improvements and other infrastructure.

B.

Responsibilities. For the purpose of reference, the director of public works has the following principal duties and responsibilities with respect to the administration of this UDC (this list is not intended to be exclusive or limiting) - such duties may be allocated and reallocated by the city administrator in the exercise of the responsibilities of that office without amendment to this UDC:

1.

Drainage Plans.

a.

Prior to authorization of any building permit, the director of public works shall review and approve all such stream flow, runoff calculations, and drainage plans as required of a subdivider under the terms of this UDC.

b.

In those instances when underground storm drainage facilities are reasonably accessible to a proposed development, the director of public works shall determine any special design standards required to connect an on-site drainage system to the city's system.

c.

Determine the warrant and requirement for the submittal contents and the content of what is needed to conduct an appropriate drainage analysis of a site plan and grading plan submitted to the city as part of the requirements of the site plan needed for a certificate of zoning compliance and building permit.

2.

Review and approval of truck routing plans to prevent trucks from traveling on public right-of-way within or adjacent to any residential district or use or adjacent to any park or recreational area or facility, as set out in Subsection 11-502.04., Agriculture, Industrial, Utility, and Transportation Uses.

3.

Promulgate and maintain a manual of engineering standards, however titled, for construction of infrastructure, as set out in Subsection 11-706.02., Right-of-Way Manual.

4.

Review, consider, and approve or deny all required improvements associated with the subdivision and development of land, as set out in Subsection 11-706.10., Required Improvements.

5.

Ensure that securities for required improvements associated with the subdivision and development of land do not lapse or expire and providing advanced notice to the subdivider of such expiration, as applicable, as set out in Subsection 11-706.10., Required Improvements.

6.

Review and make a determination as to whether a subdivider has complied with all applicable requirements of development before release of any obligation of the subdivider, as set out in Subsection 11-706.10., Required Improvements.

C.

Inspections. The director of public works shall cause to make sufficient inspection to ensure compliance with the specifications set out in this UDC. A registered engineer, employed by the subdivider, may certify in writing to the director of public works that such engineer has inspected each phase of the construction of the roadway and storm drainage improvements required in this UDC and said inspection certification shall meet the terms of this UDC. If the improvement is intended to be dedicated to the city, the director of public works shall make a final inspection of the improvements before accepting the improvements for dedication to the city for permanent maintenance.

The purpose of this section is to set out all the city's development approval procedures in one place, and to standardize them to the maximum practicable degree.

A.

Generally. All procedures for obtaining approval pursuant to this UDC, and for appealing decisions of the city staff and planning commission are set out in this section. This section shall be interpreted to limit or expand the operation of specific provisions of this UDC.

B.

Submittal Standards. Application submittal, including the forms and contents required for application submittal, are available at the Planning Department.

C.

Standardized Approval Procedures. Set out in Section 11-314, Standardized Development Approval Procedures, is the standard procedural framework for considering and deciding applications for development approval. It also sets out criteria for development approval and issuance of permits.

D.

Administrative Procedures. Set out in Section 11-315, Administrative Permits and Procedures, is the procedural framework for the review of applications for administrative approvals.

E.

Public Meeting and Hearing Permits. Set out in Section 11-316, Public Meeting and Hearing Permits and Procedures, is the procedural framework for considering and deciding applications for development approval. It sets out requirements for public hearings.

F.

Variances, Appeals, and Interpretations. Set out in Section 11-317, Variances, Appeals, and Interpretations, is the requirements for seeking variances from the terms of this UDC, appealing administrative decisions, protesting applications for zone changes and future land use map amendments, and seeking an official interpretation of this UDC.

G.

Text Amendments. Set out in Subsection 11-316.03., Text Amendment, is the procedures for amending the text of this UDC.

H.

Designation of Historic Places and Districts. Set out in Subsection 11-316.06., Designation of Historic Properties or Districts, is the process for designating a property or district for the purpose of preservation.

Determinations, approvals, and permits are required for development in the city, as set out in this section, by state law, and federal law.

A.

Generally. Administrative permits are those that are issued by the zoning administrator, without the requirement for a public meeting or hearing.

B.

Administrative Permits Established. The administrative permits required by this UDC are set out in Table 111-313.02., Administrative Permits. Standards are provided for cross-reference purposes only, and do not exempt the application from all applicable standards of this UDC. Other development permits may be required by state or federal law, applicable building codes, or the municipal code.

A.

Generally. Public meeting approvals are issued by the city after compliance with the requirement of this UDC is determined at a public meeting, as set out in this subsection. Meeting approvals requiring a public hearing are noted in Table 11-313.03., Public Meeting Approvals.

B.

Public Meeting Approvals Established. The public meeting approvals required by this UDC are set out in Table 11-313.03., Public Meeting Approvals. Other development permits may be required by state or federal law, or the FMC.

C.

Public Hearing Meetings Established. The public hearing meetings required by this UDC are set out in Table 11-313.03., Public Meeting Approvals. Other development permits may be required by state or federal law, or the FMC.

(Ord. No. 5463, 9-25-18)

A.

Generally. This subsection sets out the general process for review of applications for land use or development approval. Generally, the review process is initiated with an application pursuant to the requirements of Section 11-312, Application, and proceeds through each subsequent section (which describes a sequential step of the review process) until a decision is made on the application.

B.

Simultaneous Review. In some cases, more than one approval or permit must be issued in order to authorize construction or establish a use. Typically, approvals are granted sequentially from the general (e.g., rezoning to allow for the use or intensity requested) to the specific (e.g., a building permit), with approvals of varying levels of specificity between (e.g., preliminary plats, final plats, and/or site plans). However, an applicant may request that related approvals proceed simultaneously.

A.

Generally. The purpose of a pre-application conference is to familiarize the applicant with the development review and approval process, and application provisions of this UDC that are required to permit the proposed development.

B.

Optional, By Request. Pre-application conferences are optional and may be requested for development types other than those of Subsection C., below. Pre-application conferences do not apply to administrative approvals.

C.

Requirements. A pre-application conference is required for all applications for planned developments, as well as applications for development in the following special or overlay districts:

1.

Airport (AO) Overlay;

2.

Campus/University (CU);

3.

Floodway (FW) Overlay and Flood Fringe (FF) Overlay;

4.

Historic Neighborhood (HN) Conservation Overlay; and

5.

Wellhead Protection (WP) Overlay.

D.

Meeting Materials.

1.

The applicant shall bring to (or submit prior to) the pre-application conference sufficient supporting materials to explain:

a.

The location of the project;

b.

The proposed uses (in general terms);

c.

The proposed arrangement of buildings, parking, access points, open spaces, and drainage facilities;

d.

The relationship to existing development; and

e.

The presence of natural resources, open water, floodplains, and floodways on the lot(s) or tract(s) proposed for development.

2.

The zoning administrator may request additional information prior to or subsequent to the meeting.

E.

Authority of Zoning Administrator.

1.

The zoning administrator may establish a regular schedule for conducting pre-application conferences and may provide for conducting pre-application conferences in person, by telephone, by internet-based conferencing, or another method.

2.

The zoning administrator may waive a pre-application conference if it is agreed that such conference is unnecessary to serve the purposes set out in Subsection A., above.

A.

Generally. Every application for an approval required by this UDC shall be submitted on a form approved by the zoning administrator and shall include the corresponding application fee that is established by the city council, as amended from time to time.

B.

Applicant. Unless otherwise specified in this UDC, applications for review and approval may be initiated by the owner of the property that is the subject of the application or the owner's authorized agent. When an authorized agent files an application under this UDC on behalf of a property owner, the agent shall provide written documentation that the owner of the property has authorized the filing of the application. This requirement shall be satisfied upon the submittal of an application bearing the owner's name and signature.

C.

Liens, Taxes, Assessments, and Debts to Public Entities. No application for a permit or approval will be processed for property that is the subject of outstanding liens, delinquent taxes, delinquent assessments, or any other delinquent debts, fines, or obligations to the city, County, a school district, or other public-sector entity that provides services to the property.

D.

Representation of Facts. It shall be unlawful for any person to knowingly or willfully misrepresent or fail to include any information required by this UDC on any application. If development is approved upon an application that contains misrepresentations or fails to contain material facts required by the application, then the city shall place a stay or stop work order on the development or use, which shall remain in place until such time that the approval body receives the required information to its satisfaction.

E.

Waiver of Submittal Requirements. The zoning administrator may waive certain submittal requirements in order to tailor the requirements to the information necessary to review a particular application.

F.

Forms.

1.

The zoning administrator shall promulgate periodically revised forms for each type of application required by this UDC.

2.

Application forms shall include the specific information that is required to process each type of application. The specific information requirements shall be established and periodically revised by the zoning administrator, and have the purpose of facilitating:

a.

The evaluation of applications for compliance with the standards of this UDC; and

b.

The administration of this UDC.

G.

Schedule. The zoning administrator is authorized, but not required to, establish regular intake days for any or all classifications of applications for development approval, provided that:

1.

The schedule is posted at City Hall and on the city's web site; and

2.

The schedule provides for applications to be submitted:

a.

At least once per week for applications listed in Section 11-315, Administrative Permits and Procedures, except use, building, and occupancy permits, which shall not be limited to certain days; and

b.

At least twice per month for applications listed in Section 11-316, Public Meeting and Hearing Permits and Procedures; and

3.

The schedule does not restrict the timing of notices of appeal.

H.

Additional Requirements. The zoning administrator or any representative of the city, service or utility provider, or county who has authority to review and/or approve may also add requirements to the submittal when it is reasonably foreseeable that additional information will be needed to resolve questions of compliance with the requirements of this UDC or other policies or plans of the city, any service or utility provider, or county that is associated with or may be affected by the project.

A.

Generally. The city council shall from time to time establish fees for the processing and review of the various applications that are required by this UDC. The fees shall be reasonable, but shall not exceed the actual costs to review the applications. The city council may provide for a flat fee, plus require the reimbursement of extraordinary costs to the city that are necessitated by an application, such are fees for expert technical review or advice from consultants.

B.

Relationship to Application. No application shall be eligible to be determined complete until all application fees are paid in full.

C.

No Refunds. Once an application has been reviewed and determined complete, pursuant to Subsection 11-314.05., Application Completeness Review, the fee is non-refundable.

A.

General. Every application for development approval shall be submitted on a form approved by the zoning administrator; or in the case of building permits, the building official; along with the corresponding application fee.

B.

Incomplete Applications.

1.

Incomplete applications shall be returned to the applicant with a written explanation that describes in general terms the materials that must be submitted to complete the application.

2.

No application that does not include the application processing fee shall be considered complete.

C.

Complete Applications. Complete applications shall be processed according to the applicable procedures of Section 11-310, Permits and Procedures.

A.

Generally. Applications for development approval must be diligently pursued by the applicant.

B.

Expiration of Inactive Applications.

1.

When an action by the applicant is required for further processing of an application (for example, submittal of supplementary documentation), the application shall become void six months after the date that the action is requested if:

a.

The applicant fails to take action; or

b.

The applicant fails to request an extension of time pursuant to Subsection C., below.

2.

When an action by the applicant is required for further processing of an application for preliminary or final plat approval, the application shall become void 30 days from receipt of the application if the application has remained dormant during that period where no activity has occurred toward the completion of the application where changes or corrections are required or where instruments or documents requested or required is not forthcoming within that period from the property owner or authorized agent.

3.

No refunds of application fees will be issued to applicants whose applications expire pursuant to this subsection.

C.

Extension of Time. The time for expiration of an application may be extended by up to six months upon written request of the applicant before the end of the period set out in Subsection B., above.

D.

Effect of Expiration. Applications that expire shall automatically become null and void, closed, and discarded without further notice or activity by the city. Any application, will be treated as a new application, subject to requirements in effect at the time of the most recent submittal, and with new fees.

A.

Staff Review. When the zoning administrator determines that an application is complete, then the zoning administrator shall cause the application to be reviewed for technical compliance with the requirements of this UDC; and

1.

If the application is for an administrative permit, the zoning administrator shall approve, approve with conditions, or deny the application; and

2.

If the application is for a public meeting or hearing approval, the zoning administrator shall forward the recommendation to the next body that will consider it for further recommendation or approval, as set out in Table 11-313.03., Public Meeting Approvals.

B.

Recommended Revisions.

1.

The zoning administrator, or other responsible official, shall provide comments from city staff to the applicant, who shall revise and resubmit materials with appropriate changes within the time required by Subsection 11-314.06., Termination of Inactive Applications.

2.

The resubmittal shall not require an application fee unless both of the following conditions are met:

a.

The revisions are inappropriate or incomplete; and

b.

Repeated failure to address comments requires more than three rounds of revisions.

C.

Meeting Logistics.

1.

If the application is for a public meeting or hearing approval, the zoning administrator shall set the application on the next available agenda of the next body that will consider the application, consistent with the legal requirements for public notice, as set out in Subsection 11-314.09., Public Notice.

2.

The zoning administrator shall coordinate with decision-making bodies to fix reasonable times for hearings.

3.

The zoning administrator shall notify the applicant regarding the time and place of a public hearing.

A.

Generally. The city council, planning commission, or board of adjustment may, at their discretion, seek additional recommendations from any city department, board, commission, ad hoc committee, task force, subcommittee, group or organization, chamber of commerce, or others as felt necessary to make any decision or to gain insight or information related to any case or decision pending before them if within their purview to seek such evidence.

B.

Disclosure. The additional recommendations shall be made a part of the record of the case and the contact and substance of the recommendation shall be disclosed before a decision on the case is made.

A.

Generally. Public notice, if required, shall be provided in accordance with the requirements of this subsection. The content of notices shall be according to the policies adopted by the city or as required by law.

B.

Required Notice. Set out in Table 11-314.09., Public Notice, is the notices that are required for each type of application or procedure for which notice is required. Approvals and procedures that are not listed do not require notice unless notice is required by statue.

C.

Computation of Time. In computing the time periods for providing notice pursuant to this subsection, the day of mailing, publication, or posting shall not be counted, but the day of the public hearing shall be counted.

D.

Constructive Notice. Minor defects in any notice shall not impair the notice or invalidate proceedings pursuant to the notice if a bona fide attempt has been made to comply with applicable notice requirements. Minor defects in notice shall be limited to errors in a location map that is not substantial with respect to the general location of the property, typographical or grammatical errors, or errors of actual acreage that do not impede communication of the notice to affected parties. Failure of a party to receive written notice shall not invalidate subsequent action. In all cases, however, the requirements for the timing of the notice and for specifying the time, date, and place of a public hearing shall be strictly construed. If questions arise at the public hearing regarding the adequacy of notice, the decision-making body shall direct city staff to make a formal finding as to whether there was substantial compliance with the notice requirements of this UDC, and such findings shall be made available to the decision-making body at the same meeting or prior to final action on the request.

A.

Generally. All meetings of city council, planning commission, and board of adjustment shall be open to the public except as otherwise provided by the Nebraska Open Meetings Act set out in NRS § 84-1410.

B.

Joint Meetings. Any public hearing required by this UDC or the laws of the state of Nebraska may be held jointly with any public hearing required to be held by any other commission, or board, except the board of adjustment. Such joint meetings may be held after public notice as required by law.

C.

Consent Agenda. The consent agenda may consist of all matters brought before city council, planning commission, or board of adjustment for action that does not require a public hearing. All items on the consent agenda may be approved simultaneously by one motion without comment or debate. An item may be removed from the consent agenda by the chair, prior to approval, at the request of any member of city council, planning commission, board of adjustment, city staff, or the general public. Items removed from the consent agenda shall be considered on the regular agenda.

D.

Public Hearings.

1.

Procedures. City council, planning commission, and board of adjustment will adopt rules of procedure for the conduct of public hearings. The following general procedures shall be reflected in the adopted rules of procedure.

a.

Any person may appear at a public hearing, submit evidence, and be heard.

b.

If a speaker represents an organization, the body conducting the hearing may request written evidence of that person's authority to speak on behalf of the group in regard to the matter under consideration.

c.

Persons appearing at a public hearing shall identify themselves and state their address and similar information about any organization they represent.

d.

Citizens, applicants, and the city have the right to present expert witnesses.

e.

The chairperson may impose a reasonable time limit on speakers and may limit testimony that is irrelevant or redundant.

2.

Representation. Persons appearing before city council, planning commission, or board of adjustment may appear in person or through a representative or agent. The representative or agent shall provide satisfactory proof of his or her authority upon the request of the city council, planning commission, or board of adjustment.

3.

Quorum. The number of members of city council, planning commission, or board of adjustment that is required in order to constitute a quorum is set out in the applicable subsections of Section 11-303, Bodies Established and Authorized, or FMC, Chapter 2, Administrative.

4.

Decisions.

a.

Except where this UDC, FMC, or state statues provides otherwise, official action requires the favorable vote of a majority of a quorum present.

b.

The concurring vote of four members of the board of adjustment shall be necessary to reverse any order, requirements, decision, or determination of any administrative official, consistent with FMC § 2-203.

c.

Except when voice votes are authorized, a vote shall be conducted in such a manner that the public may know the vote of each person entitled to vote.

5.

Time Limitation for Decisions.

a.

For zoning change (i.e. rezoning) applications, if the planning commission does not provide a recommendation to the city council within 60 days after the planning commission begins consideration of the matter, the planning commission shall either request an extension from the city council or make a final report to the city council. If no extension is granted or no final report is made within the 60 day period, then the proposed amendment shall proceed to the city council as a final report with no recommendation.

b.

For preliminary plats, the planning commission shall approve, approve with conditions, or disapprove the preliminary plat within 60 days after its submission.

6.

Conditions of Approval. Some procedures set out in this UDC authorize the decision making body to impose such conditions upon the premises benefited by the approval as may be necessary to reduce, minimize, or eliminate potential adverse impact upon other property in the area, or to carry out the general purpose and intent of the comprehensive plan and this UDC. In such cases, any conditions attached to approvals shall be directly related to the impacts of the proposed use or development and shall be roughly proportional in both extent and amount to the anticipated impacts of the proposed use or development or shall carry out the general purpose and intent of the comprehensive plan and this UDC. No conditions of approval, except for those attached to variance or minor adjustment approvals, shall be less restrictive than the requirements of this UDC.

A.

Generally. Consideration of applications may be continued, or applications withdrawn as provided in this subsection.

B.

Continuances.

1.

Request or Motion to Continue. Consideration of an application may be continued upon motion of the city council, planning commission, or board of adjustment or upon request of the applicant before a decision is made on the application.

2.

Period of Continuation. Should any item before a city council, planning commission, or board of adjustment be tabled in anticipation of information or events to occur prior to rendering a decision, such tabling shall be for not longer than the second meeting following the meeting at which the time was tabled.

C.

Withdrawal. Any application may be withdrawn, either in writing or on the record during the proceedings before the recommendation or decision is made.

A.

Generally. Approval of an application shall be deemed to authorize only the particular use, plan, or other specific activity for which the approval was granted. Approvals shall run with the particular land for which approval is given, except that conditional use approvals may be conditioned upon operation of the use by the applicant. Text amendments to this UDC shall not relate to particular lots or tracts.

B.

Duration of Approval. Approval of an application shall become invalid unless work on the site authorized by such approval is commenced within two years after the date of approval, or if work on the site is suspended or abandoned for a period of two years after work has commenced.

A.

Generally. It is the policy of the city not to hear successive applications for a substantially similar application after an application is denied. The limitations of this subsection prevent the consideration of successive applications.

B.

Time Required Between Substantially Similar Applications. The city shall not accept any application that is substantially similar to an application that was denied within the period set out below:

1.

Generally. Six months shall elapse between the date an application is denied and the date a substantially similar application is filed.

2.

Zoning Changes. Zoning change (i.e. rezoning) applications follow the general rule of Subsection B.1., above, except that if substantially similar zone change applications are denied twice, two years shall lapse from the last date of denial before a new substantially similar application is accepted for processing.

3.

Certificates of Appropriateness. One year shall elapse between the date an application is denied and the date a substantially similar application is filed.

C.

Appeal and Waiver of Restrictions. The zoning administrator's determination that an application is substantially similar to a denied application is subject to administrative appeal. In the alternative to an appeal, the applicant may seek a waiver of the successive application rules from the city council, which may grant the waiver for good cause shown. Such good cause shall include, but not be limited to, such factors as:

1.

An approved amendment to the comprehensive plan or this UDC would potentially allow for the application to be processed for approval;

2.

Changed conditions justify the waiver (e.g., the proposed use requires spacing from another use, and the other use moves away, or infrastructure was not sufficient to support the proposed development, but has since been improved); or

3.

The city council finds that there was an error in the processing of the application that could not have been remedied by administrative appeal (successive applications shall not be used as a substitute for an appeal if an appeal could be used to resolve an allegation of error).

A.

Generally. Zoning compliance is an administrative procedure in which the zoning administrator verifies that an application for development approval of a permitted use, limited use, or a building or structure that is permitted without site plan approval, complies with the requirements of this UDC. A certificate of zoning compliance may be issued simultaneously with building permits or other required permits.

B.

Decision. The zoning administrator shall approve or deny the application.

A.

Generally. Administrative approval of temporary use permits are applicable to public and commercial events, neighborhood events, and construction, storage, and refuse collection uses as set out in Section 11-505, Temporary Uses.

B.

Approval Criteria. Temporary use permits shall be administratively approved if it is demonstrated that they meet the applicable substantive requirements of this UDC, particularly those specified for the proposed temporary use in Subsection 11-505.02., Public and Commercial Events, Subsection 11-505.03., Neighborhood Events, and Subsection 11-505.04., Construction, Storage, and Refuse Collection Uses.

C.

Procedure. Applications for administrative approval of temporary use permits are processed according to the sequential steps set out in Section 11-314, Standardized Development Approval Procedures, and shall be referred to other departments and agencies, as applicable, and then decided by the zoning administrator.

D.

Decision. The zoning administrator shall approve, approve with conditions, or deny the application.

A.

Generally. Within the DC district, encroachments into the public right-of-way are permitted subject to the standards set out in Subsection 11-603.01., Development Standards, Subsection E., DC District Setbacks.

B.

Approval Criteria. Right-of-way encroachments may be approved by the zoning administrator if it is demonstrated that they meet the substantive requirements of this UDC.

C.

Procedure. Applications for right-of-way encroachments are processed according to the sequential steps set out in Section 11-314, Standardized Development Approval Procedures, and shall be referred to other departments and agencies, as applicable, and then decided by the zoning administrator, in coordination with the director of public works.

A.

Generally. The zoning administrator is authorized to approve minor changes or modifications to a planned development, preliminary plat, or final plat in accordance with this subsection.

B.

Minor Modifications Defined. The zoning administrator is delegated the authority to approve an application to change or modify a planned development, preliminary plat, or final plat if it is demonstrated that the proposed change or modification will result in substantial adherence to the previous approval. In making this determination, the zoning administrator may refer any application for change or modification to the planning commission for review and recommendation. The minor changes or modifications must demonstrate the following:

1.

Development density and intensity have not materially changed, in that:

a.

The number of buildings is not increased by more than 10 percent.

b.

The height of the building(s) is the same or less.

c.

The number of units is the same or fewer.

d.

The aggregate lot coverage and floor area ratio ("FAR") are the same or less.

e.

Density or intensity (FAR) may be transferred from one building to another or from one stage of development to another, provided that the total floor area is not changed and the conditions of Subsection B.1.a. through B.1.d. above, are met.

2.

Design has not materially changed, in that:

a.

The roadway patterns, including ingress-egress points, are in the same general location as shown on the original plans, and are no closer to the rear or interior side property lines than shown on the original plans.

b.

The parking area is in the same general location and configuration.

c.

The building setbacks are the same or greater distance from perimeter property lines, except that the building setbacks for detached single-family development, attached single-family development, and planned development, may be decreased, provided that such decrease is limited such that the resulting setback distance will be greater of either:

1.

The district regulation; or

2.

Any condition or restrictive covenant regulating the setback for which a substantial compliance determination is sought.

d.

The landscaped open space is in the same general location, is the same or greater amount, and is configured in a manner that does not diminish a previously intended buffering effect.

e.

The proposed perimeter walls and/or fences are in the same general location and of a comparable type and design as previously approved.

f.

Elevations and renderings of buildings have substantially similar materials and architectural expressions as those shown on the approved plans.

g.

Recreational facilities either remain the same or are converted from one recreational use to another.

h.

Recreational facilities may be added.

3.

The proposed changes do not have the effect of creating any noncompliance or nonconformity with the strict application of the UDC that were not previously approved at a public hearing, or of expanding the scope of existing variances or other approvals such that they would differ to a greater degree from the strict application of the UDC.

C.

Criteria. In reaching a determination as to whether a change is minor and may be approved by the zoning administrator or a major change or modification requiring a planning commission recommendation and city council approval, the zoning administrator shall use the following criteria:

1.

Any increase in intensity or use shall constitute a modification. An increase in intensity of use shall be considered to be an increase in usable floor area, an increase in the number of dwelling or lodging units, or an increase in the amount of outside land area devoted to sales, displays, or demonstrations.

2.

Any change greater than 10 percent in parking areas resulting in an increase or reduction in the number of spaces approved shall constitute a major change.

3.

Structural alteration significantly affecting the basic size, form, style, and location of a building, as shown on the approved plan, shall be considered a major change.

4.

Any reduction in the amount of open space or bufferyard, or any change in the location or characteristics of open space, shall constitute a major change.

5.

Any change in use from one use group to another shall constitute a major change.

6.

Any change in pedestrian or vehicular access or circulation shall constitute a major change.

D.

Procedure. Applications for minor modifications or changes to a planned development, preliminary plat, or final plat are processed according to the sequential steps set out in Section 11-314, Standardized Development Approval Procedures, and shall be referred to other departments and agencies, as applicable.

E.

Decision.

1.

The zoning administrator shall approve, approve with conditions, or deny the application.

2.

The zoning administrator shall refer the application to the planning commission if the zoning administrator finds that the proposed development entails a major change or modification in the planned development preliminary or final plan.

A.

Generally. Notwithstanding other provisions of this UDC or other laws to the contrary, the administrative procedures for approving or certifying certain plats involving minor modification of existing lots or tracts of land are established in this subsection.

B.

Qualifications. The criteria for administrative plat approval include those set out in Subsection 11-705.02., Administrative Subdivisions.

C.

Notation. All plats approved or certified by an administrative procedure provided for in this subsection shall note such fact on the plat, which shall be recorded in the conveyance records of the Dodge County Register of Deeds.

D.

Review. The zoning administrator, together with the director of public works and other warranted staff members, shall review the administrating plat for its conformance with the requirements and standards of this UDC.

E.

Approval. The zoning administrator is authorized to approve administrative plats if the application complies with the standards set out in Subsection 11-705.02., Administrative Subdivisions. However, the zoning administrator, at his or her discretion, may refer the application to the planning commission for review and decision.

F.

Procedures. The procedures for an Administrative Plat shall be generally the same as that for after approval of a final plat and after approval of a final plat and submission of the required certifications, as set out in Subsection 11-316.02., Final Plat.

A.

Generally. Prior to final plat approval, and prior to construction of any improvements associated with a new subdivision, subdivision improvement plans shall be prepared by or under the direct supervision of a professional engineer licensed in the state of Nebraska ("project engineer"), and submitted to the director of public works for review and approval.

B.

Plans. Unless otherwise required by the director of public works, subdivision improvement plans shall show complete plans, profiles, and details for all required improvements to be constructed, both public and private, including common areas, in accordance with this UDC and the city's Right-of-Way Manual. At a minimum, plan sets shall include a cover sheet, general notes, existing conditions, slope map, erosion control/tree protection plan, drainage area map (existing and proposed), drainage plan and profile, paving plan and profile, water and waste water plan and profile, detention and water quality plan, utility plan (gas, electric, etc.), traffic control plans (if necessary), and construction details drawn to a scale sufficient to permit adequate review, dimensioned as necessary, and signed and sealed by the project engineer.

C.

Supplementary Plans and Calculations. Hydrology, hydraulic plans and calculations, traffic studies, bond or other security estimates, and any structural calculations as may be required, shall be submitted along with the subdivision improvement plans in a form legible, systematic, and signed and sealed by the project engineer.

D.

Approval. Following review of the subdivision improvement plans the director of public works may approve the plans and authorize commencement of construction of said improvements. The director of public works may also, for any reason, elect to present the subdivision improvement application and any associated documentation to the planning commission or the city council, or both, for review and approval prior to authorization of commencement of construction.

E.

Revisions to Approved Plans. Any adjustments to the approved engineering plans, as may be required from time-to-time as actual construction commences, may be made only after prior approval of the city. Any such adjustments shall require the submission of revised engineering plans which shall be prepared by or under the direct supervision of the project engineer.

F.

Improvement Agreement. The improvement agreement ("subdivision agreement") shall be prepared by the project engineer and approved as to form by the city attorney. The agreement shall provide for:

1.

Construction of all necessary improvements as set forth in this UDC, the city's Right-of-Way Manual, and agreed upon between the project engineer and the director of public works, including any required off-site improvements, according to the approved plans and specifications on file with the director of public works;

2.

Completion of improvements within the time agreed upon between the project engineer and the director of public works;

3.

Right of the city to modify plans and specifications and to require the subdivider to pay for modifications, or to require the project engineer to make such necessary modifications as may be required from time-to-time as actual construction commences, the cost of which shall be borne by the subdivider;

4.

Warranty by the subdivider that construction will not adversely affect any portion of adjacent properties;

5.

Payment of review and inspection fees, in accordance with the city's fee schedule, and any other deposits, reimbursements, fees, or conditions as required by city ordinance or resolution or as may be required by the director of public works;

6.

Performance and maintenance securities as required by Subsection 11-315.06.G., Securities;

7.

Maintenance and repair of any defects or failures and their causes;

8.

Release and indemnification of the city from all liability incurred in connection with the development and payment of all reasonable attorneys' fees that the city may incur because of any legal action or other proceeding arising from the development; and

9.

Any other provisions required by the city as reasonably necessary to effectuate the purposes and provisions of the comprehensive plan, this UDC and the city's Right-of-Way Manual.

G.

Securities.

1.

Performance. Whenever the city permits an applicant to enter into an improvement agreement, it shall require the applicant to provide sufficient security, covering the completion of the public improvements. The security shall be in the form of cash escrow or, where authorized by the city, a performance bond or letter of credit or other security acceptable to the city council and the city attorney, as security for the promises contained in the improvement agreement. Security shall be in an amount equal to 100 percent of the estimated cost of completion of the required public improvements and lot improvements. The issuer of any surety bond and letter of credit shall be subject to the approval of the city manager/mayor and the city attorney.

2.

Maintenance. Upon acceptance of the subdivision improvements by the city, the subdivider shall provide security in the amount as required by the director of public works to guarantee the improvements against any defective work or labor done or defective materials used in the performance of the improvements throughout the warranty period which shall be the period of two years following completion and shall not be less than 10 percent of the cost of the construction of the improvements.

3.

Bonds. If the city council authorizes the applicant to post a performance bond as security for its promises contained in the improvement agreement, or a maintenance bond for the guarantees of any labor or materials, the bond shall comply with the following requirements:

a.

All bonds must be in the forms acceptable to the city attorney;

b.

All bonds must be executed by such sureties as are named in the current list of "Companies Holding Certificates of Authority as Acceptable Sureties on Federal Bonds and as Acceptable Reinsuring Companies", as published in Circular 570, as may be amended, by the Financial Management Service, Surety Bond Branch, U.S. Department of the Treasury;

c.

All bonds must be signed by an agent, and must be accompanied by a certified copy of the authority for him or her to act; and

d.

All bonds shall be obtained from surety or insurance companies that are duly licensed or authorized in the state of Nebraska to issue performance bonds for the limits and coverage required.

If the surety on any bond furnished by the applicant is declared bankrupt, or becomes insolvent, or its right to do business in terminated in the state of Nebraska, or the surety ceases to meet the requirements listed in Circular 570, the developer shall, within 30 days thereafter, substitute another bond and surety, both of which must be acceptable to the city.

4.

Letter of credit. If the city council authorizes the applicant to post a letter of credit as security for its promises contained in the improvement agreement, or for the guarantees of any labor or materials, the letter of credit shall:

a.

Be irrevocable;

b.

Be for a term sufficient to cover the completion, maintenance and warranty periods, but in no event less than two years; and

c.

Require only that the city present the issuer with a sight draft and a certificate signed by an authorized representative of the city certifying to the city's right to draw funds under the letter of credit.

H.

Construction and Inspection. The construction methods and materials for all improvements shall conform to standard engineering practices and all other standard plans and specifications of the city. Construction shall not commence until all required improvement plans have been approved by the director of public works, and all improvements are subject to inspection by the director of public works or his/her duly authorized personnel in accordance with the city's approved specifications.

I.

Acceptance of Improvements. When all improvement deficiencies have been corrected and as-built improvement plans submitted, the completed subdivision improvements shall be considered by the director of public works for acceptance. Acceptance of the improvements shall imply only that the improvements have been completed satisfactory and that public improvements have been accepted for public use.

When requested by the subdivider in writing, the director of public works may consider acceptance of a portion of the improvements. Such improvements will be accepted by the director of public works only if the director of public works finds that it is in the public's interest to do so and such improvements are for the use of the general public. Acceptance of a portion of the improvements shall not relieve the subdivider from any other requirements imposed by this chapter.

(Ord. No. 5470, 10-9-18)

A.

Generally. For the purpose of managing storm water runoff and erosion, and protecting significant stands of trees, land may not be clear cut, graded, excavated, or filled in preparation for development. Instead, a grading, excavating, and land clearing permit shall be requested and subsequently issued before removing any vegetative cover, grading, excavating, filing, or generally disturbing the land.

Exception: clear-cutting, grading, excavating, or filling solely for agricultural purposes.

B.

Compliance with Standards. In order to issue a grading, excavating, and land clearing permit, the zoning administrator must determine the extent of compliance with the criteria set out in Subsection 11-723.04., Water Quality and Quantity, Subsection 11-813.07., Tree Protection, and Subsection 11-813.08., Land Clearing.

C.

Determination. A determination of compliance may be found by the zoning administrator according to the criteria set out in Subsection 11-723.04., Water Quality and Quantity, Subsection 11-813.07., Tree Protection, and Subsection 11-813.08., Land Clearing.

D.

Procedure. Applications for grading, excavating, and land clearing are processed according to the sequential steps set out in Section 11-314, Standardized Development Approval Procedures, and shall be referred to other departments and agencies, as applicable, and then decided by the zoning administrator.

A.

Generally. Site plans require approval by the zoning administrator for site development features and to possibly mitigate unfavorable effects on surrounding property.

B.

Administration. The zoning administrator shall review, evaluate, and approve, approve with conditions, or disapprove. An applicant may appeal the disapproval of a site plan application in accordance with Section 11-317.03. Administrative Appeals.

C.

Uses Requiring Site Plan Review. All new development, redevelopment, additions, alterations, or changes in occupancy are subject to site plan review.

D.

Standards. A site plan must comply with the standards of this UDC and shall:

1.

Be used to implement the design objectives of any adopted subarea plans (e.g., downtown) in a manner that is consistent with the standards of this UDC.

2.

Be designed to minimize impacts on the reasonable development expectations or the use and enjoyment of adjacent land or the public interest, consistent with the applicable standards of this UDC.

3.

Not materially and adversely affect the public health or safety through interpretations of the standards of this UDC that do not give full effect to other provisions that would be protective to health and safety if applied.

4.

Recognize the limits of existing and planned infrastructure, by thorough examination of the availability and capacity of water, waste water, gas, electric, drainage, and transportation systems to serve present and future land uses.

5.

Provide for compatibility between the proposed development, surrounding land uses (existing or planned), and the natural environment.

6.

Provide for efficient and adequate provision of public services and sold waste removal.

7.

Protect public health and safety against natural and man-made hazards which include, but are not limited to, traffic noise, water pollution, and flooding.

8.

Provide for accessibility within the proposed development and appropriate connectivity or buffering or both between the development and existing adjacent uses.

9.

Minimize disruptions to existing physiographic features, including vegetation, streams, lakes, soil types, and other relevant topographical elements.

E.

Application Requirements. An application for a site plan review may be filed by the owner(s) of a property, or the owners' authorized agent, with the zoning administrator. The application shall include the following information:

1.

Name and address of the applicant.

2.

Owner, address, and legal description of the property.

3.

A description of the nature and operating characteristics of the proposed use.

4.

A site plan, drawn to a scale sufficient to permit adequate review and dimensioned as necessary, showing the following information:

a.

The date, scale, north point, title, name of owner, and name of person preparing the site plan.

b.

The location and dimensions of boundary lines, easements, and required yards and setbacks of existing and proposed buildings and site improvements.

c.

The location, size, and use of proposed and existing structures on the site.

d.

The location of all proposed site improvements, including parking and loading areas, pedestrian and vehicular access, sewers, sidewalks, utilities, service areas, fencing, screening, landscaping, and lighting.

e.

Location of any major site feature, including drainage and contours at no greater than five foot intervals.

f.

Any other information that may be required for review by the Zoning Administrator, or his/her designee.

F.

Term and Modification of Approval.

1.

A site plan approval shall become void two years after the date of approval, unless the applicant receives a building permit and diligently carries out development prior to the expiration of this period.

2.

The zoning administrator, or his/her designee, may approve an application to modify a previously approved site plan if he/she determines that the modification does not affect findings related to the following:

a.

Land Use Compatibility. Development density, intensity, or floor area ratio should be similar to surrounding uses if not separated by major natural or artificial features.

b.

Height and Scale. Development should minimize differences in height and building size from surrounding structures; differences should be justified by urban design considerations; development should respect pre-existing setbacks in surrounding area; variations should be justified by site or operating characteristics; building coverage should be similar to that of surrounding development of possible; and, higher coverage should be mitigated by landscaping or site amenities.

c.

Site Development. Project frontage along a street should be similar to lot width; parking should serve all structures with minimal conflicts between pedestrians and vehicles; all structures must be accessible to public safety vehicles; development must have access to adjacent public streets and ways; internal circulation should minimize conflicts and congestion at public access points; landscaping should be integral to the development, providing street landscaping, breaks in uninterrupted paved areas, and buffering where required by surrounding land uses; and, parts of site with sensitive environmental features or natural drainageways should be preserved.

d.

Building Design. Architectural design and building materials should be compatible with surrounding areas or highly visible locations.

e.

Operating Characteristics. Project should not obstruct traffic on adjacent streets; compensating improvements will be required to mitigate impact on street system operations; project design should direct non-residential traffic away from residential areas; projects with long operating hours must minimize effects on surrounding residential areas; and, outside storage areas must be screened from surrounding streets and less intensive land uses.

f.

Public Facilities. Developments within 500 feet of a public sanitary sewer must connect to sewer system; individual disposal systems, if permitted, shall not adversely affect public health, safety, or welfare; sanitary sewer must have adequate capacity to serve development; development should handle storm water adequately to prevent overloading of public storm water management system; development should not inhibit development of other properties; development should not increase probability of erosion, flooding, landslides, or other run-off related effects; project must be served by utilities; and, rural estate subdivisions should be located in designated areas which can accommodate utility and infrastructure installation consistent with the need to protect the environment and public health.

g.

Comprehensive Plan. Projects should be consistent with the city's comprehensive development plan.

3.

The zoning administrator, or his/her designee may revoke a site plan approval if he/she determines that the development is not complying with the terms and conditions of the approval. Such revocation may be appealed in accordance with Section 11-317.03., Administrative Appeals.

G.

Approval to Run With Land. An approval pursuant to this section shall run with the land until the expiration date of such approval.

A.

Generally. All development proposed within a special flood hazard area and all development constructed, installed, commenced, improved, or maintained within a special flood hazard area after the effective date (to the extent permitted by this UDC), is required to obtain a floodplain development permit from the floodplain administrator, in accordance with the procedure established in this subsection, and the applicant for approval of such development shall pay the fee established by the city council.

B.

Standards of Issuance. Approval or denial of a floodplain development permit by the floodplain administrator, shall be based on all applicable provisions of Subsection 11-405.02, Floodway (FW) Overlay and Flood Fringe (FF) Overlay Districts, and the following relevant factors:

1.

The danger to life and property due to flooding and erosion damage;

2.

The susceptibility of the proposed facility and its contents to flood damage and the effect of such damage on the individual owner;

3.

The danger that materials may be swept onto other lands to the injury of others;

4.

The compatibility of the proposed use with existing and anticipated development;

5.

The safety of access to the property in times of flood for ordinary and emergency vehicles;

6.

The costs of providing governmental service during and after flood including maintenance and repair of street and bridges and public utilities and facilities such as water, waste water, gas, electric, and storm water systems;

7.

The expected heights, velocity, duration, rate of rise, and sediment transport of the floodwaters expected at the site;

8.

The availability of alternative locations, not subject to flooding or erosion damage for the proposed use; and

9.

The relationship of the proposed use to the comprehensive plan for that area.

C.

Procedure. Floodplain development permits are processed by the floodplain administrator, who may accept the review, comment, and recommendations of the director of public works and others, as applicable.

D.

Permit Issuance. No permit for any construction or development in any flood hazard area shall be issued until a floodplain development permit has been issued by the floodplain administrator.

A.

Generally. A sign permit is required as set out Section 11-822, Application. Set out in Section 11-820, Signs, are regulations about the height and area of signs, which vary by the type of sign. If a proposed sign meets all standards of this UDC, or all standards set out in an approved sign design program for the property, as set out in Section 11-827, Sign Plan Program, then the zoning administrator will issue the sign permit.

B.

Procedure. Sign permits are an administrative procedure in which the zoning administrator verifies that an application for approval of a sign complies with the requirements of Section 11-820, Signs, which may include a sign plan approved by the planning commission. Sign permits may be issued simultaneously with building permits or other required permits.

A.

Pre-Application Conference. Whenever any subdivision of land is proposed in the form of a planned development, or within a special or overlay district, the subdivider is required to discuss the project with the zoning administrator prior to submitting a preliminary plat.

B.

Procedures. The subdivider shall have a preliminary plat prepared by a registered engineer, and other materials as may be required by the city, which is provided with the application available from the Planning Department. The procedure for review and approval of a preliminary plat consists of the following:

1.

After a pre-application conference, as applicable, prepare and submit to the zoning administrator for the review, consideration, and review of the planning commission and approval of the City Council a preliminary plat of the proposed subdivision;

2.

Approval of the preliminary plat shall lapse unless a final plat is submitted within two years from the date of preliminary plat approval.

(Ord. No. 5463, 9-25-18)

A.

Generally. A final plat is required for submittal upon review by the zoning administrator and approval by the planning commission and city council. Based on its consistency and conformance with the preliminary plat, the planning commission shall recommend, and the city council shall similarly approve, approve with conditions, or disapprove a final plat.

B.

Procedures. After approval of the detailed subdivision improvement plans by the director of public works, the subdivider shall have a final plat prepared by a registered land surveyor, or engineer, and submitted to the city for review and approval within two years from the date of preliminary plat approval. The procedure for review and approval of a final plat consists of the following:

1.

Upon receipt of a final plat application, the zoning administrator shall be assured that the terms and conditions of the subdivision improvement agreement have been mutually agreed upon and in a form acceptable to the city attorney and that the plat document conforms substantially to the approved preliminary plat. The final plat may constitute only a portion of the approved preliminary plat that is proposed to be recorded and developed; provided, however, that such portion conforms substantially to that portion of the preliminary plat to which subdivision is being sought, as well as any other requirements of this UDC and any other standards and requirements of the city.

2.

After submission of a final plat application:

a.

The planning commission shall recommend, and the city council shall similarly approve, approve with conditions, or disapprove the final plat.

b.

If the plat is disapproved, the grounds for disapproval shall be stated upon the records of the city council, in writing.

3.

After approval of the final plat, two paper sets of the approved final plat, with any corrections and/or changes required by the city council, fully executed by the land surveyor, or engineer, preparing the same, the owner(s), and any associated notary(ies), shall be submitted to the zoning administrator, who shall collect a filing fee according to the fee schedule promulgated by the city council, as amended from time to time, and:

a.

The zoning administrator, or an appointee, shall obtain the signatures of the planning commission chairperson and mayor; and,

b.

The zoning administrator, or an appointee, shall then have the plat duly recorded in the office of the Register of Deeds of Dodge County, Nebraska.

C.

General Obligation Debt Criteria. Prior to submission of a final plat to the city council for consideration, the subdivision application shall meet the following criteria:

1.

The general obligation debt of any Sanitary Improvement District ("SID") shall not exceed four percent of the proposed valuation of the project;

2.

The subdivider/owner shall submit, as part of the final plat application, an estimate of the projected value of the SID, along with a letter from the fiscal agent of the SID stating that they have reviewed and agree with such projection;

3.

If the bids for any improvement of the SID exceed the original source and use of funds submittal by more than 10 percent upon approval of the final plat, the change shall be considered "substantial" and the project shall be directed back to the city council for consideration and approval of such excess along with submission of an amended source and use of funds;

4.

Any new and/or unanticipated construction costs of the SID which were not included in the original source and use of funds submittal shall be directed back to the city council for consideration and approval of such new and/or unanticipated construction costs along with submission of an amended source and use of funds;

5.

If the actual construction costs of an improvement of the SID are less than the approved source and use of funds, those savings shall not be considered expendable funds to be applied for other SID projects without written authorization of the city council. Project cost saving shall be distributed proportionally between special assessment and general obligation debt, as applicable, based on the originally approved apportionment; and

6.

Any development plan which includes distinct construction phases may seek the city council's approval of the overall development plan and planned construction phases. The anticipated overall and phased construction costs shall be included in the original source and use of funds submittal. Following completion of the initial phase of construction and before proceeding with any subsequent phase of development, the fiscal agent of the SID shall submit an amended source and use of funds to the city council for consideration and approval, specially noting changes in labor and material costs, as compared to the original source and use of funds submittal, if any.

A.

Generally. The city council may amend the text of this UDC in accordance with the procedures set out in this subsection and Section 11-314, Standardized Development Approval Procedures, to implement the comprehensive plan, as may be amended from time to time, conform to state or federal legal requirements, address changing or changed conditions, or otherwise advance the public health, safety, and welfare of the city.

B.

Initiation of Amendment. Petitions for amendments to this UDC shall be made to the zoning administrator. The city council and any other body that is described in Section 11-303, Bodies Established and Authorized, may initiate an amendment.

C.

Criteria for Text Amendments. Recommendations and decisions regarding petitions for amendments to text of this UDC are legislative in nature, but shall be based on consideration of all the criteria that the proposed amendment:

1.

Will help to implement the comprehensive plan, or, if it addresses a topic that is not addressed or not fully developed in the comprehensive plan, the proposed amendment does not impair the implementation of the comprehensive plan when compared to the existing UDC.

2.

Is consistent with the stated purposes of this UDC.

3.

Will maintain or advance the public health, safety, or general welfare.

4.

Will help to mitigate adverse impacts of the use and development of land on the natural or built environment, including, but not limited to mobility, air quality, water quality, noise levels, storm water management, wildlife protection, and vegetation; or will be neutral with respect to these issues.

5.

Will advance the strategic objectives of the city council, such as fiscal responsibility, efficient use of infrastructure and public services, and other articulated city objectives.

D.

Procedure. Text amendments are processed according to the sequential steps set out in Subsection 11-314.02., Pre-Application Conference, through Subsection 11-314.10., Public Meetings and Hearings, and shall be decided by the city council after recommendation of the planning commission, as set out in Subsection 11-313.03., Public Meeting and Hearing Approvals. The planning commission shall hold a public hearing. The procedure shall incorporate the following additional requirements:

1.

Staff Review. The zoning administrator shall review each proposed amendment in light of the criteria of Subsection C., above, and refer the application to other departments or entities as deemed necessary. Based on the results of those reviews, the zoning administrator shall provide a report and recommendation to the planning commission.

2.

Planning Commission Recommendation.

a.

The planning commission shall hold a public hearing on the proposed text amendment. Following the public hearing, the planning commission shall make a final report to the city council.

b.

Upon receiving the report of the planning commission, the zoning administrator shall draft an ordinance, submit it to the city attorney for approval as to form, and shall forward the ordinance to the city council for consideration.

3.

City Council Action. Upon receipt of the final report from the planning commission, the city council shall vote to approve, approve with amendments, or reject the proposed amendment, based on the approval criteria in Subsection C., above. The city council also may refer the proposed amendment back to the planning commission for further consideration, continue a public hearing, or postpone action on an application for a period not to exceed 90 days (or shorter period if the application is being processed concurrently with a plat and the plat application is still pending at the time the amendment is postponed).

E.

No Retroactive Cure of Violations. The amendment of text of this UDC may transform a legally nonconforming situation into a conforming one. However, no petition for a text amendment shall be used to cure a violation of any party of this UDC.

A.

Generally. The boundaries of any zoning district in the city may be changed, or the zoning classification of any lot or tract may be changed, as provided in this subsection.

B.

Initiation of Zoning Change.

1.

A zoning change (rezoning) may be initiated by the owner of the property to be rezoned or their authorized agent or representative, the city council, the planning commission, or by the zoning administrator. Zoning change applications by property owners and their agents or representatives shall be submitted on a form approved by the zoning administrator, which is available in the offices of the zoning administrator.

2.

The zoning administrator may require the submission of such other information as may be necessary to permit the informed exercise of judgment under the criteria for the review of a zone change application. Such information shall be related to the scale, location, and impacts of the zone change application and may include, by way of illustration and not limitation, analysis of the capacity of the land to support development (e.g., soil characteristics and hydrology) or the additional impacts (or reduction in impacts) that may be created by changing the district designation, in terms of: traffic (trip generation), drainage (flooding and storm surge), visual, aesthetic, and land use adjacency impacts, water and waste water use and availability, and other information determined by the city as necessary to make an informed analysis and decision.

C.

Criteria for Approval. The planning commission may recommend approval, and city council may grant the approval of a zoning change request if it is demonstrated that:

1.

The proposed zoning is preferable to the existing zoning in terms of its likelihood of advancing the goals, objectives, and policies of the comprehensive plan or another adopted land use or area plan, including but not limited to redevelopment plans;

2.

The proposed zoning is consistent with the future land use plan of the comprehensive plan;

3.

The proposed change is consistent with the implementation of existing or pending plans for providing streets, water and waste water, other utilities, and the delivery of public services to the area in which the lot or tract proposed for a zoning change is located;

4.

The range of uses and the character of development that is allowed by the proposed zone will be compatible with the properties in the immediate vicinity of the lot or tract proposed for a zoning change, and the lot or tract proposed for a zoning change has sufficient dimensions to accommodate reasonable development that complies with the requirements of this UDC, including parking and buffering requirements; and

5.

The pace of development and/or the amount of vacant land currently zoned for comparable development in the vicinity suggests a need for the proposed rezoning in order to ensure an appropriate inventory of land to maintain a competitive land market that promote economic development.

D.

Procedures. Applications for zoning changes are processed according to the sequential steps set out in Subsection 11-314.02., Pre-Application Conference, through Subsection 11-314.10., Public Meetings and Hearings, and shall be referred to other departments and agencies, as applicable, and then decided by the city council, upon the recommendation of the planning commission, as set out in Subsection 11-313.03., Public Meeting and Hearing Approvals. The planning commission shall hold a public hearing. The procedure shall incorporate the following additional requirements, which supersede any conflicting provisions in Section 11-314, Standardized Development Review Procedures:

1.

A pre-application conference is required for planned unit developments, or for rezoning to a special or overlay district. A conference is optional for all other application types.

2.

If the zoning administrator requires additional information pursuant to Subsection B.2., above, the zoning administrator may suspend the process and notify the applicant regarding the specific information requested.

3.

The applicant shall provide the additional information within 30 days of the date of the zoning administrator's request. If the materials are not submitted within said time period, the application shall be rejected.

4.

The planning commission shall hold a public hearing on the proposed zoning change and issue a final report to the city council.

5.

The zoning administrator shall forward the final report from the planning commission to the city council with a recommendation.

E.

Joint Hearing. After publishing notice as set out in Subsection 11-314.09., Public Notice, the city council may hold a public hearing pertaining to zoning that is required by this UDC or the statutes of Nebraska jointly with any public hearing required to be held by the planning commission, but the city council shall not take action until it has received the final report of the planning commission.

F.

Decision.

1.

The city council shall hold a public hearing on the application at which time they will consider the recommendation of the planning commission and take one of the following actions:

a.

Approve the zoning change by ordinance;

b.

Approve the zoning change by ordinance with modifications;

c.

Deny the zoning change; or

d.

Refer the proposed zoning change back to the planning commission for further consideration.

2.

The city council shall support its decision to deny the zoning change with written findings of fact regarding the approval criteria in Subsection C., above.

G.

Protest Petition. In case of a protest against such zoning change, signed by the owners of 20 percent or more either of the area of the lots included in such proposed change, or of those immediately adjacent on the sides and in the rear thereof extending 300 feet therefrom, and of those directly opposite thereto extending 300 feet from the street frontage of such opposite lots, and such change is not in accordance with the comprehensive plan, such amendment shall not become effective except by the favorable vote of three-fourths of all the members of the city council.

H.

Effective Date. In accordance with this subsection, no amendment, supplement, or change of the UDC or official zoning map shall become effective unless and until the planning commission has submitted its report and recommendations to the city council, the city council has held a public hearing, and a final vote has been taken on the zoning change application by the city council.

A.

Generally. A conditional use is a use that is allowed within a district, but which is subject to specific standards and a public meeting process in order to reduce the potential for incompatibility with other uses within the district. These uses commonly have the potential for various adverse impacts such as traffic congestion, noise, visual and aesthetic impacts, which if unmitigated, could undermine the integrity of the district. The designation of a conditional use means that it is only allowed in a proposed location if all of the conditions applicable to the use, set out in Section 11-504, Limited and Conditional Uses, the criteria of Subsection B., below, and all of the other applicable requirements of this UDC or conditions of the planning commission are met.

B.

Criteria for Approval. In addition to the applicable standards of this UDC, including those set out in Section 11-504, Limited and Conditional Uses, all conditional uses shall comply with the following standards:

1.

The conditional use shall not be of a type that would tend to undermine the implementation of an adopted plan that includes the lot or tract proposed for development.

2.

The conditional use shall be compatible with surrounding land uses and the natural environment, and will not materially detract from the character of the immediate area or negatively affect the planned or anticipated development or redevelopment trajectory.

3.

There is no practicable alternative location where the use is permitted as-of-right within 1,000 feet of the lot or tract proposed for development, or, if such a location exists, the proposed location is more favorable in terms of:

a.

Providing a needed community service;

b.

Providing a critical mass of jobs that are likely to pay more than the median wages for the region;

c.

Providing a balance of land uses, ensuring that appropriate supporting activities, such as employment, housing, leisure-time, and retail centers are in close proximity to one another; or

d.

Making more efficient use of public infrastructure, such as off-peak street capacity.

4.

The approval of the conditional use will not create a critical mass of similar conditional uses that is likely to discourage permitted uses by making the vicinity less desirable for them.

5.

The conditional use and any conditions of development shall adequately protect public health and safety against natural and man-made hazards which include, but are not limited to, traffic noise, water pollution, airport hazards, and flooding.

6.

The conditional use will not use an unfairly disproportionate share of public services that would compromise the delivery of those services to other uses in the vicinity. Applicable public services include, but are not limited to, utilities, police protection, fire protection, schools, parks, and libraries.

C.

Procedure. In issuing a conditional use permit, applications are processed according to the sequential steps set out in Subsection 11-314.02., Pre-Application Conference, through Subsection 11-314.10., Public Meetings and Hearings, and shall be referred to other departments and agencies, as applicable, and then decided by the city council, upon the recommendation of the planning commission, as set out in Subsection 11-313.03., Public Meeting and Hearing Approval.

D.

Decision; Conditions of Approval. The zoning administrator may recommend, and the planning commission may attach, conditions of approval to the conditional use in order to mitigate its impacts (or reasonably foreseeable impacts) such that it complies with the criteria of Subsection B., above, and/or to assure and monitor continued compliance with this UDC. Conditions shall be roughly proportional to the impacts to which they are addressed, taking into account the mitigating effects of applicable requirements set out in Section 11-504, Limited and Conditional Uses. The subject matter of conditions, by way of illustration and not limitation, may include, but not be limited to:

1.

Additional landscaping or buffering, or landscaping improvements;

2.

Building or facade improvements;

3.

Limitations on the use or related activities;

4.

Noise abatement measures;

5.

Limitations on lighting, such as lighting curfews or restrictions on levels of illumination;

6.

Measures to control, mitigate, or direct traffic;

7.

Parking, loading, and site circulation adjustments;

8.

Restrictions on outdoor displays, sales, or storage;

9.

Standards and assurances regarding the maintenance of property; and

10.

Restrictions on signage that relate only to the sign structure, materials, lighting, placement, size, or type, but not to the content of messages displayed (unless such messages are not protected speech).

E.

Annotation of Official Zoning Map. If the application is approved, the official zoning map shall be annotated to reference the approval by case number.

A.

Generally. The procedures of this subsection are used for the petition of property owners to designate historic property or districts. In addition to consideration and approval of petitions by property owners, the city council, following a public hearing and upon recommendation of the planning commission, may designate historic properties or districts.

B.

Initiation by Petition. A property owner may submit an application to the zoning administrator for consideration and recommendation of designation as a historic property by the planning commission. The application shall be in the form and in the manner required by the zoning administrator, which is available in the offices of the zoning administrator.

C.

Initiation by Motion. The city council may, without a petition, consider, propose, and move to consider designation of historic properties or districts. In such a case, the city council's approved motion to do so will substitute for the property owner's application. All relevant procedures outlined in this subsection shall then be followed. No action may be taken by the city council to designate historic properties or districts unless and until a recommendation of the planning commission is received.

D.

Notification. Owners of properties proposed to be designated as a historic property or included in a designated historic district shall be notified in writing 30 days prior to consideration by the planning commission.

E.

Criteria for Historic Designation. A property may be designated historic if it:

1.

Has significant inherent character, interest, or value as part of the development or heritage of the community, state, or nation;

2.

Is the site of an event significant in history;

3.

Is associated with a person or persons who contributed significantly to the culture and development of the community, state, or nation:

4.

Exemplifies the cultural, political, economic, social, ethnic, or historic heritage of the community, state, or nation;

5.

Individually, or as a collection of resources, embodies distinguishing characteristics of a type, style, period, or specimen in architecture or engineering;

6.

Is the work of a designer whose work has influenced significantly the development of the community, state or nation;

7.

Contains elements of design, detail, materials, or craftsmanship which represent a signification innovation;

8.

Is part of or related to a square, original town, or other distinctive element of community planning;

9.

Represents an established and familiar visual feature of the neighborhood or community; or

10.

Has yielded, or may be likely to yield, information important in pre-history or history.

F.

Procedure.

1.

In designating a historic property or district, applications are processed according to the sequential steps set out in Subsection 11-314.02., Pre-Application Conference, through Subsection 11-314.10., Public Meetings and Hearings, and shall be referred to other departments and agencies, as applicable, and then decided by the city council.

2.

Generally, the following steps must be followed according to the general procedures of Section 11-314, Standardized Development Approval Procedures:

a.

The application is submitted to the zoning administrator for review and recommendation.

b.

Once the application is submitted and processed, the planning commission shall conduct a public hearing wherein the owner, interested parties, or technical experts may present testimony or documentary evidence which will become part of a record regarding the historic, architectural, or cultural importance of the proposed property or district. Notice shall be given as is provided in Subsection 11-314.09., Public Notice. Following the hearing and deliberation, the planning commission shall forward a recommendation to the city council.

c.

The city council shall also give notice and conduct a public hearing on the proposed property or district designation. Notice shall be sent in the same manner as for the planning commission's hearing. At the hearing, the zoning administrator shall present the planning commission's recommendation.

G.

Decision.

1.

The city council shall approve or reject the application.

2.

The city council shall cause the designation to be filed with the Dodge County Register of Deeds, the tax records of the City of Fremont, and the Dodge County Tax Assessor's office.

H.

Tax Incentives and Funding. In order to qualify for any special funding or tax incentives, historic properties, and contributing resources in historic districts, must maintain the characteristics on the basis of which they were designated, must be properly maintained, and follow all relevant guidelines established by the city.

A.

Permit Issuance. No building permit application shall be accepted nor shall any such permit be issued, and no work shall be performed until after approval of a certificate of appropriateness after a public hearing by the planning commission, and not until five days have elapsed from its transmission to the building official by the zoning administrator with any advice as to conditions which may have been attached to such a certificate.

B.

Exemption. A public hearing for an application for a certificate of appropriateness is not required in the instance where the planning commission determined that the application is not a substantive change and that the certificate complies with the standards of this UDC and other applicable guidelines and ordinance provisions.

C.

Procedure. In issuing a certificate of appropriateness, applications are processed according to the sequential steps set out in Subsection 11-314.02., Pre-Application Conference, through Subsection 11-314.10., Public Meetings and Hearings. The certificate of appropriateness may be issued by the zoning administrator, after a public hearing and approval by the planning commission.

D.

Approval. Evidence of approval shall be by the issuance of a certificate of appropriateness. The planning commission shall cause to have a record kept of all applications and all proceedings and decisions. The planning commission shall have the right to make such recommendations for changes and modifications as it may deem to be necessary in order to enable the applicant to meet its requirements.

E.

Project Phasing. Certificates of appropriateness may be issued for distinct and separate phases of an ongoing project.

F.

Submission of a New Application. If the planning commission determines that a certificate of appropriateness should be denied, a new application affecting the same property may be submitted to the zoning administrator only if substantial change is made in the plans for the proposed work (see Subsection 11-314.13., Successive Application).

G.

Resubmission of a Denied Application. A property owner or his/her agent or representative may resubmit the same application for a certificate of appropriateness affecting the same lot or tract or project after 12 months have passed. If, in the opinion of the zoning administrator, there are substantial changes and improvements in the application for a project, the zoning administrator, shall allow an owner to resubmit an application for certificate of appropriateness affecting the same lot or tract after a waiting period of 10 days from the date of the initial denial.

H.

Appeal of Decision. In the event an applicant for a certificate of appropriateness disagrees with the determination of the planning commission regarding the issuance of a certificate, the applicant may file an appeal as set out in Subsection 11-317.05., Appeals to City Council.

I.

Hardship Waiver. See Subsection 11-317.04., Hardship Waiver for Certificates of Appropriateness (as applicable).

A.

Generally. There are certain eligible applicants who may initiate an application for variances, appeals, and interpretations from the standards, requirements, and terms of this UDC. Parties not listed in Table 11-317.01., Eligible Applicants, may petition the city council to initiate a change, but the city council is not bound to act on behalf of the petitioner.

B.

Eligibility. The following applicants may make application for variances and appeals to the standards, requirements, and terms of this UDC:

A.

Generally. The variance process is intended to provide limited relief from the requirements of this UDC in those cases where strict application of a particular requirement will create an unnecessary hardship by preventing the use and development of land in a reasonable manner that is otherwise allowed under this UDC.

B.

Exceptions. Some requests are not within the jurisdiction of the board of adjustment ("board"), and are therefore, not subject to this subsection. These requests include, but are not limited to:

1.

Appeals to the Building Board of Appeals (appeals to the requirements of adopted standardized building codes and amendments to such codes that are adopted by the city), which are subject to the requirements of FMC, Chapter 9, Building Regulations, or where such chapter is silent, the adopted standardized code.

2.

Appeals to the terms of one or more conditions of approval imposed by a development review body described in Section 11-300, Administrative Bodies. Modifications to conditions of approval shall be sought from the body that granted the approval.

3.

Requests that would have the effect of making existing nonconforming or illegal construction (buildings and structures), site improvements, parking, or landscaping conforming. Nonconforming situations are subject to the requirements of Section 11-320, Nonconformities.

C.

Prohibitions.

1.

Variances shall not be used to allow a use in a district in which the use is prohibited or which would constitute a change in district boundaries (variances to Section 11-500, Land Uses).

2.

Variances shall not be used to modify any requirements that are set out in Section 11-504, Limited and Conditional Uses, with respect to an application for conditional use approval.

3.

State and/or federal laws may not be varied by the city unless such authority is expressly granted to the city.

D.

Authority of the Board. Variances are processed by the board as a public hearing meeting approval. The board may approve, approve with conditions, or deny a variance. The board may impose such conditions and restrictions upon the premises benefited by a variation as may be necessary to comply with the standards established in this subsection, to reduce or minimize the effect of such variations upon other property in the neighborhood and to better carry out the general intent of this UDC.

E.

Obligation of Applicant. It is the obligation of an applicant, who bears the burden of proof, to present facts about the circumstances which would justify a variance in convincing fashion so that the decision-making authorities (e.g., board of adjustment, planning commission, or zoning administrator) may be satisfied that the request is not injurious from a public health, safety, and general welfare perspective, and that the effect of the variance will not negatively impact the immediate or general environs of the city.

F.

Criteria for Issuance. The board may grant a variance from the strict application of this UDC if the variance is not prohibited by Subsection C., above, and the board makes findings based upon the evidence presented to it in each specific case that all of the following are demonstrated:

1.

Strict application of the zoning regulations will produce undue hardship;

2.

Such hardship is not shared generally by other properties in the same zoning district and within the same vicinity;

3.

The authorization of such variance will not be of substantial detriment to adjacent property and the character of the district will not be changed by the granting of the variance;

4.

The granting of such variance is based upon reason of demonstrable and exceptional hardship as distinguished from variations for purposes of convenience, profit, or caprice;

5.

The condition or situation of the property concerned is not of so general or recurring a nature as to make reasonably practicable a general regulation to be adopted as an amendment to the zoning regulations; and

6.

The granting of the variance will not cause substantial detriment to the public good and will not substantially impair the intent and purpose of this UDC or other ordinances/resolutions.

G.

Conditions for Variances in the Floodway (FW) Overlay District.

1.

Generally, variances may be issued for new construction and substantial improvements to be erected on a lot of one-half acre or less in size, contiguous to and surrounded by lots with existing structures constructed below the base flood level providing Subsections 2. through 6., below, have been fully considered. As the lot size increases beyond the one-half acre, the technical jurisdiction required for issuing the variance increases.

2.

Variances may be issued for the reconstruction, rehabilitation, or restoration of structures listed on the National Register of Historic Places or the State Inventory of Historic Places, without regard to the procedures set out in this subsection.

3.

Variances shall not be issued within any designated floodway if any increase in flood levels during the base flood discharge would result.

4.

Variances shall only be issued upon a determination that the variance is the minimum necessary, considering the flood hazard, to afford relief.

5.

In addition to the criteria out for variances in Subsection 11-303.03., Board of Adjustment, variances shall only be issued upon:

a.

A showing of good and sufficient cause;

b.

A determination that failure to grant the variance would result in exceptional hardship to the applicant; and

c.

A determination that the granting of the variance will not result in increased flood heights, additional threats to public safety, extraordinary public expense, create nuisances, cause fraud on or victimization of the public, or conflict with exiting local laws or ordinances.

6.

Any applicant to whom a variance is granted shall be given a written notice over the signature of a community official and maintained with the record of all variance actions that:

a.

The issuance of a variance to construct a structure below the base flood level will result in increased premium rates for flood insurance; and

b.

Such construction below the base flood level increases risks to life and property.

H.

Reports to the City Council. When an application for a variance is denied for failure to meet the requirement of special conditions, then the board may report to the city council as to whether it is appropriate and reasonably practicable to formulate a general regulation for such conditions, or situations, and amend the UDC accordingly.

I.

Notification. All applicants requesting a variance from the provisions of this UDC shall be notified in writing of the final action taken by the authorized governmental authority.

A.

Qualification. Appeals to the board may be taken by any person aggrieved or by any officer, department, board, or bureau of the city affected by any decision of the zoning administrator or other staff person set out in Section 11-303, Bodies Established and Authorized.

B.

Notice of Appeal. Appeals shall be taken within a reasonable time, as provided by the rules of the board, by filing with the officer from whom the appeal is taken, and with the board a notice of appeal specifying the grounds for the appeal.

C.

Transmission of Records. The officer from whom the appeal is taken shall transmit to the board all the papers constituting the record upon which the action appealed from was taken, after all transcript costs and all other costs of appeal are paid by the person or entity taking the appeal, and the appellant.

D.

Re-Hearing. Requests for re-hearing of an appeal shall not be granted by the board unless the applicant has additional relevant evidence to present which was not presented at the first hearing. Only on request for a re-hearing shall new evidence be allowed. Requests shall be filed with the zoning administrator within 10 days of the board decision being rendered.

E.

Stay of Proceedings. An appeal stays all proceedings in furtherance of the action appealed from, unless the officer from whom the appeal is taken certifies to the board after the notice of appeal shall have been filed, that by reason of facts stated in the certificate, a stay would in his or her opinion, cause imminent peril of life or property. In such case, proceedings shall not be stayed otherwise than by a restraining order that may be granted by the board or by a court of record on application or notice to the officer from whom the appeal is taken and on due cause shown.

A.

Generally. The relief available in this subsection is intended only for applicants whose applications for a certificate of appropriateness are denied.

B.

Economic Hardship Waiver. Within 10 days of receipt of written notification from the planning commission of the denial of a certificate of appropriateness to demolish a historic resource or any part of it, an aggrieved applicant may file an economic hardship waiver application with the zoning administrator. Within 60 days of the applicant's receipt of the denial, documentation and exhibits shall be submitted to the zoning administrator by the applicant, including, without limitation:

1.

Appraisal of the property by a licensed real estate appraiser;

2.

Estimated costs for appropriate rehabilitation prepared by a licensed architect or engineer with experience in historic preservation;

3.

Documentation of consideration of alternative uses for the property; and

4.

Documentation of public advertisement to solicit a buyer willing to appropriately rehabilitate the property.

C.

Waiver Required. If a certificate of appropriateness is denied, then no building permit or demolition permit shall be issued unless the planning commission makes a finding that hardship exists and approves a waiver.

D.

Standards for Approval of Waiver. Applicants for economic hardship waivers must prove with adequate and sufficient documentary and other evidence, that:

1.

The owner cannot make reasonable beneficial use of or, for income-producing properties, the property is not capable of yielding a reasonable return, regardless of whether that return represents the most profitable return possible;

2.

Reasonable efforts to find a party interested in acquiring the property and preserving it have failed; and

3.

The property cannot be adapted for any other use, whether by the current owner or by a purchaser, which would render it capable of yielding a reasonable return.

E.

Good Faith Required. The applicant shall consult in good faith with the planning commission, local preservation groups and interested parties in a diligent effort to seek an alternative that will result in preservation of the historic resource.

F.

Waiver Procedures.

1.

The planning commission shall hold a public hearing on the hardship waiver application no later than the second regular planning commission meeting following the 60 day discovery period.

2.

The applicant shall be given written notice of the time and place of the meeting according to the standards of Subsection 11-314.09., Public Notice.

3.

Following the hearing the planning commission shall decide whether to grant or deny the hardship application.

G.

Written Decision Required. Written notice of the planning commission's decision, shall be provided to the applicant.

H.

Appeal to City Council. An applicant who is dissatisfied with any action of the planning commission relating to the issuance or denial of a certificate of appropriateness or a waiver of the same that is aggrieved by such decision of the planning commission may present to the city council a petition, duly verified, setting forth that such decision is unjust, in whole or in part, and specifying the grounds of injustice. Such petition shall be presented to the city council within 10 days after the final decision of the planning commission, and not thereafter. The city council shall give notice, follow publication procedure, hold hearings, and make its decision according to Section 11-317.05., Appeals to City Council.

A.

Generally. Appeals from decisions of the planning commission are heard by the city council as provided in Subsection C., below.

B.

Jurisdiction; Limitation of Jurisdiction. The city council may decide appeals of dispositive decisions of the planning commission which are made during the processing of applications for approvals pursuant to this UDC. An asserted error in any order requirement, permit, decision, determination, refusal, or interpretation made by the planning commission in interpreting the provisions of this UDC may be appealed to the city council, provided that:

1.

The action is dispositive with respect to the application or a material part of it; and

2.

The appeal is not used to address or resolve disputed questions of fact or law in connection with an enforcement action, or to seek relief from an enforcement action.

C.

Filing of Appeal; Automatic Stay. An appeal may be brought by any person or entity that is aggrieved by the decision appealed, as follows:

1.

A complete application for an appeal, including required fees, shall be filed with the zoning administrator within 10 days of the date of the decision appealed from. No appeal will be heard if the application is untimely.

2.

The filing of an appeal shall stay all proceedings and further actions by both parties in furtherance of the contested action, unless the zoning administrator certifies to the city council that, in his or her opinion by reason of facts stated in the certification, such a stay could cause imminent peril to life and/or property. In such case, proceedings shall not be stayed except by a restraining order granted by the city council or by a court of law on notice to the zoning administrator, with due cause shown.

3.

Upon a finding that the application is complete, the zoning administrator shall schedule the appeal for consideration at a hearing before the city council. The zoning administrator shall transmit all applications and other records pertaining to such appeal to the city council.

D.

Hearing.

1.

Upon receiving the application materials from the zoning administrator, the city council shall hold a public hearing on the appeal.

2.

The burden of proof shall rest with the appellant.

E.

Effect of Appeal. The city council shall have the power to review the decision de novo, and may grant the appeal, grant the appeal with conditions that modify the order appealed from, or deny the appeal.

A.

Generally. It is the intent of this UDC that all questions of interpretation and enforcement shall be first presented to the zoning administrator and that such questions shall be presented to the board only on appeal from the decision of the zoning administrator and that recourse from the decision of the board shall be to the courts as provided by law.

B.

Requests for Interpretation. Any person may request an administrative interpretation of the terms, provisions, or requirements of this UDC if the application of the terms, provisions, or requirements is not obvious.

C.

Applicability. This subsection applies to any request to interpret a provision of this UDC.

D.

Application Fee.

1.

It is the intent of the city council that this UDC be accessible and clear to the residents, business owners, and landowners in the city. As such, city staff will provide:

a.

General information to residents, business owners, and landowners with respect to the districts that apply to property;

b.

References to the standards that may be applied to individual uses or buildings; and

c.

Requested public records that are related to the administration and enforcement of this UDC.

2.

It is not the intent of the city council that the zoning administrator affirmatively evaluates the full development potential of individual properties or resolve other such detailed inquiries about specific properties or issues without a pending application.

3.

Within these guidelines, the zoning administrator is authorized to waive the application fee for specific inquiries that do not involve material time commitments or copying costs, and to charge an hourly research fee for broad inquiries that are likely to involve material time commitments. Such fee shall be according to a fee schedule promulgated by city council resolution.

E.

Process. The interpretation is made by the official charged with administering the provision for which an interpretation is requested (the "responsible official"). The responsible official and the city are not obligated to render an interpretation. The interpretation is not subject to appeal, although related appeals may proceed as provided in this UDC (e.g., appeals of decisions on applications which may be impacted by the interpretation). After an interpretation is issued, the zoning administrator may propose a text amendment to this UDC to codify the interpretation.

F.

Application Requirements.

1.

Applications for interpretations shall be submitted on a form approved by the zoning administrator.

2.

The applicant shall cite the code provisions for which interpretation is sought, a description of a hypothetical situation or scenario to which the application of this UDC is in question, and a statement of the nature of the interpretation sought.

G.

Decision. Within 30 days after the application for an interpretation is filed, the responsible official shall make a good faith effort to interpret the provision that is the subject of the application. The responsible official shall respond to the applicant in writing, and shall keep a copy of the response in a record of interpretations. The responsible official may consult with the zoning administrator in drafting the interpretation.

H.

Standards for Interpretations. The interpretation shall be based on:

1.

The materials or scenario posed by the applicant;

2.

The plain and ordinary meaning of the terms that are subject to the application for an interpretation as set out in Webster's Third New International Dictionary or other current and authoritative dictionaries;

3.

The purpose statement for the UDC section that is subject to interpretation;

4.

Any other provision of the comprehensive plan, the municipal code, state law, or federal law that are related to the same subject matter;

5.

Any technical meanings of the words used in the provision subject to interpretation;

6.

Other interpretations rendered by the city relating to the same or related provisions of this UDC;

7.

The consequences of the interpretation;

8.

The legislative history;

9.

The problem or issue that is addressed by the provision subject to interpretation; and

10.

Sources outside the UDC provisions that provide a related source for the definition, such as technical or professional literature.

I.

No Legal Advice. The city does not provide legal advice to applicants or property owners. Private parties, including purchasers, lenders, title insurers, and others are advised to seek legal opinions from their attorneys with respect to specific potential applications of this UDC. No interpretation provided by city staff pursuant to this subsection shall be construed as legal advice.

J.

No Binding Effect. It is the policy of the city to evaluate applications for development approval comprehensively on their individual merits. Therefore, interpretation may be persuasive to the applicable development review bodies, but they are not binding on the city

K.

Recordkeeping. The zoning administrator shall keep records of interpretations made pursuant to this subsection.

A.

Generally. The city includes areas that have been developed for many years. Therefore, applying new regulations to existing development will create situations in which existing land uses, lot dimensions, development density or intensity, buildings, structures, landscaping, buffering, open spaces, parking and loading areas, or signs do not strictly comply with the new requirements, even though they complied with the regulations at the time they were permitted and constructed. The fact that these nonconformities were at one time conforming means that they are now considered "legally nonconforming" and therefore, will be permitted to continue without immediate retrofit until significant site or use changes are proposed. This section sets out fair rules for whether, when, and how the regulations of this UDC apply to existing development.

B.

Reduction of Nonconformities. It is the policy of the city to encourage reinvestments in property that increase its value and utility and improve its quality and character. Since bringing a developed lot or tract into full compliance with this UDC may involve substantial cost (which could discourage reinvestment), this section provides a set of thresholds for determining when new construction or modifications to development trigger a requirement for meeting the various standards of this UDC.

C.

Unlawful Uses, Buildings, Structures, or Signs. This section does not authorize or legitimize uses, buildings, structures, or signs that are not "legally nonconforming" but instead remain "unlawful", and are subject to all the provisions of this UDC (including enforcement provisions) and any other applicable law. Likewise, this section does not legitimize unlawful subdivisions of property that may have occurred before the effective date of this UDC.

A.

Generally. This section applies to uses, lots, buildings, structures, site access, parking, landscaping, bufferyards, site improvements, signs, and lighting, that were lawfully constructed or established, but do not conform to the requirements of this UDC.

B.

Exceptions to this section.

1.

Maintenance. This section does not exempt property owners from ongoing maintenance requirements, including, but not limited to, the maintenance of drainage structures and systems, parking lots (e.g., upkeep of paving and striping), and landscaping. See Section 11-324.04., Additions, Alterations, andRepairs.

2.

Eminent Domain; Governmental Acquisition. Any nonconforming land or structure expressly created or caused by a conveyance of privately-owned land to a federal, state, or local government to serve a public purpose shall be construed as 'legally nonconforming" and may continue without immediate retrofit until significant site or use changes are proposed. This interpretation applies only in cases where private land is obtained by a governmental entity for a public purpose, through condemnation, threat of condemnation or which otherwise creates a nonconforming situation in the remaining lot or tract in terms of lot size, setback, or other standards of this UDC. This exemption does not apply to right-of-way dedication or other public conveyances of land required by the city in the course of subdivision or other development approvals pursuant to this UDC.

C.

Types and Classes of Nonconformities. Types and classes of nonconformities are set out in Section 11-323, Types and Classes of Nonconformities. The application of the standards of this section is based on the type of nonconformity that is being addressed.

1.

Types. There are 7 types of nonconformities including:

a.

Uses;

b.

Lots;

c.

Buildings;

d.

Structures;

e.

Parking;

f.

Landscaping, buffering, and screening; and

g.

Signs.

2.

Classes. There are two classes of use nonconformities including "major" and "minor".

D.

General Regulations. Set out in Section 11-324, General Regulations, is the standards for when nonconforming situations must be made conforming (or more conforming) or, alternatively, terminated or removed. It also sets out the circumstances in which a nonconforming situation may be restored or resumed after damage, destruction, or temporary cessation of the use.

E.

Compliance Threshold. Set out in Section 11-325, Compliance Thresholds, is the standards for determining when new construction or modifications to development trigger a requirement for conformity with the various requirements of this UDC.

F.

Effect of section.

1.

Effect on Existing Development Entitlements. Nothing in this UDC shall be interpreted to require a change in plans, construction, or designated use of any building in which a building permit was lawfully issued prior to the effective date of adoption or amendment of the UDC, provided construction was commenced within 180 days after obtaining the building permit and diligently completed.

2.

Effect on Existing Unlawful Uses, Buildings, Signs, Structures, and Lots or Tracts. Any use, lot or tract of land, building, structure, and/or sign, which was used, erected, or maintained in violation of any previous zoning regulations shall not be considered as a legal, nonconforming use, lot or tract, building, structure, and/or sign, and shall be required to comply with all provisions of this UDC.

A.

Generally. A nonconforming use is a use of land that was lawfully established (e.g., it was allowed and legally authorized, if legal authorization was required) on a lot or tract before the effective date of this UDC (or amended hereto), that is no longer allowed after the effective date of this UDC (or amended hereto). The following uses are legally nonconforming uses:

1.

Permitted Uses and Structures. Uses that were lawfully established but are not currently listed as Permitted, Limited, or Conditional Uses in the district set out in Section 11-500, Land Uses, except that structures that were listed as uses of land prior to the effective date and are not regulated as accessory buildings or structures (see Section 11-610, Accessory and Supplemental Standards) are either:

a.

Conforming structures (if they comply with the requirements of this UDC); or

b.

Nonconforming structures (see Subsection 11-323.04., Structures).

2.

Limited Uses. Uses that are listed as Limited Uses in the district set out in Section 11-500, Land Uses, but were lawfully established without a limited use permit and do not comply with the applicable standards of Section 11-504, Limited and Conditional Uses. For these uses, the nonconforming use status may be removed by obtaining a limited use permit.

3.

Conditional Uses. Uses that are listed as Conditional Uses in the district set out in Section 11-500, Land Uses, but were lawfully established without a conditional use permit.

4.

Flood Prone Uses. Uses that were lawfully established within a floodplain or floodway, but are no longer permitted in the floodplain or floodway. See Subsection 11-405.02, Floodway (FW) Overlay and Flood Fringe (FF) Overlay Districts.

B.

Classifications of Nonconforming Uses. There are two classes of nonconforming uses. The classifications include:

1.

Major Nonconforming Uses. Major nonconforming uses are those uses for which the nonconformity generates a nuisance per se or represents such incompatibility with adjacent uses and/or the comprehensive plan that public policy favors their elimination from the district if they are discontinued, abandoned, or destroyed. As set out in Section 11-500, Land Uses, major nonconforming uses include, but are not limited to, Animal Feeding Operations ("AFO") / Concentrated Animal Feeding Operations ("CAFO") and mobile homes.

2.

Minor Nonconforming Uses. All nonconforming uses that are not classified as major nonconforming uses are minor nonconforming uses.

Nonconforming lots are lots that were lawfully created before the effective date of this UDC, or amendments hereto, but which no longer comply with the lot area, width, depth, yard, frontage, or access requirements of this UDC, as set out in Section 11-600, Development Yield and Lot Standards.

A nonconforming building that was lawfully constructed prior to the effective date of this UDC (or amendment hereto) that does not conform to the height, coverage ratio, impervious cover, building scale, design standards density, or intensity, that are applicable to the same type of building in the district in which the building is located.

A.

Generally. A nonconforming structure is a structure other than a building that was lawfully constructed prior to the effective date of this UDC (or amendment hereto) that does not conform to the standards that are applicable to the same type of structure in the district in which the structures is located.

B.

Examples. The following are illustrative examples of nonconforming structures:

1.

Fences or walls that do not comply with the height, setback, or material standards set out in Subsection 11-614.02., Fences and Walls, and Subsection 11-615.02., Fences and Walls;

2.

Accessory structures that do not comply with the location, height, construction methods, design and appearance, or building standards set out in Subsection 11-614.01., Accessory Buildings and Structures, and Subsection 11-615.01.,Accessory Buildings and Structures; and

3.

Structures located in floodplains, floodways, required yards, or open space areas that do not comply with the applicable regulations of this UDC.

Nonconforming parking refers to parking, loading, stacking, access management, and circulation that does not conform to the requirements of this UDC that are set out in Section 11-800, Parking, Loading, and Access, in terms of their number, dimensions, or the surfacing and maintenance of off-street parking areas.

Nonconforming landscaping, buffering, and screening is landscaping, buffering, or screening (or lack thereof) that does not conform to the landscaping , buffering or the screening requirements of Section 11-810, Landscaping, Buffering, and Screening, or other provisions of this UDC that require the designation of open space, landscape surface areas, or the buffering of uses. Nonresidential, mixed-use, and multifamily residential lots or tracts that were lawfully developed but do not include the required landscape surface ratio, open space ratio, or bufferyard that is required after the effective date of this UDC, or amendment hereto, are also nonconforming with respect to landscaping, buffering, and screening.

A.

Generally. Any sign located within the city on the effective date of this UDC that does not conform to the provisions of Section 11-820, Signs, or, if applicable, Section 11-504, Limited and Conditional Uses, is a "legal nonconforming" sign, provided it also meets the following requirements:

1.

The sign is a permanent sign; and

2.

One of the following apply:

a.

The sign was approved by a sign permit before the effective date of this UDC, or amendment hereto, if a permit was required under applicable law;

b.

If no sign permit was required under applicable law for the sign in question - with the exception of temporary signs which by their very nature are temporary in term and shall either be removed 30 days from the effective date of these regulations or made otherwise compliant with the terms and conditions set forth in Section 11-826, Temporary Signs - the sign was in all respects in conformity with the applicable law or conditions of approval immediately prior to the effective date; or

c.

The sign had legal nonconforming status on the effective date of this UDC.

B.

Existing Signs on Annexed Property. If land is annexed into the city after the effective date of this UDC, any signs that do not conform to the provisions of this UDC at such time shall have legal nonconforming status if:

1.

Under applicable regulations, the sign was legal in all respects immediately prior to annexation;

2.

The sign is a permanent sign; and

3.

The annexation was not conditioned upon the removal or modification of the sign.

A.

Generally. This subsection sets out the standards for when a nonconformity must be terminated or removed, and when it is allowed to be restored after temporary cessation, damage, or destruction.

B.

Nonconforming Uses.

1.

If a major nonconforming use is discontinued for a period of 12 months, for any reason, whether or not the equipment or fixtures are removed, it shall not be resumed.

2.

If a nonconforming mobile home is discontinued for a period of 180 days, for any reason, it shall not be resumed. The applicant for compliance under this subsection shall provide the zoning administrator with a notarized letter stating that the replacement occurred within 180 days of the discontinuance of the previous home.

3.

If a minor nonconforming use is discontinued for a period of 12 months, for any reason, whether or not the equipment or fixtures are removed, it shall not be resumed.

4.

Uses or adjuncts thereof which are or become nuisances shall not be entitled to continue a nonconforming use.

C.

Unenclosed Nonconforming Uses. Any nonconforming use not enclosed within the confines of a building existing as of the effective date of (or amended to) this UDC but not in conformity with the provisions of this UDC may be continued no longer than six months from and after the effective date of this UDC, or after the determination of nonconformance. Such use shall only be allowed to continue operation as a nonconforming use provided the nonconforming use is enclosed and screened from view by a type B bufferyard, and provided the nonconforming use conforms to all other regulations of this UDC.

D.

Nonconforming Uses or Structures in a Floodway.

1.

Residential Use of Structure. If a residential use of structure is destroyed by any means, including flood, it shall not be reconstructed if the cost is more than 50 percent of the market value of the structure before the damage occurred within those areas identified as Floodway (FW) Overlay district. This limitation does not include the cost of any alteration to comply with existing state or local health, sanitary, building, or safety codes or regulations or the cost of any alteration of a structure listed on the National Register of Historic Places or a State Inventory of Historic Places.

2.

Nonresidential Use of Structure. If a nonresidential use of structure is destroyed by any means, including flood, it should not be reconstructed if the cost is more than 50 percent of the market value of the structure before the damage occurred except that if it is reconstructed in conformity with the provisions of Section 11-320, Nonconformities. This limitation does not include the cost of any alteration to comply with existing state or local health, sanitary, building, or safety codes or regulations or the cost of any alteration of a structure listed on the National Register of Historic Places or a State Inventory of Historic Places.

E.

Nonconforming Buildings, Structures, and Elements of Buildings or Structures.

1.

If a nonconforming building or structure or a nonconforming element of a building or structure is damaged or destroyed by any means, or declared unsafe by the building official to an extent that repairs would exceed more than 50 percent of the replacement cost of the building or structure or a damaged nonconforming element of a building or structure, the building, structure, or elements of the building or structure shall be reconstructed in conformity with the provisions of this UDC.

2.

If the reconstruction cost and/or area of reconstruction (whichever is less) is less than or equal to 50 percent of the cost of replacement or area of the building structure, or elements of the building or structure may be strengthened or restored to a safe condition provided that:

a.

The original nonconformity is not enlarged, increased, or extended;

b.

Building permits are obtained for repairs within six months of the date the building, structure, or elements of the building or structure was damaged or, if no date can be reasonably established for the damage, the date that the building official determines that the building is unsafe;

c.

Construction commences within 12 months after a building permit is obtained; and

d.

The construction is complete within 18 months from the time the building permit was obtained.

F.

Nonconforming Parking.

1.

Number of Parking Spaces.

a.

If an existing building or use is expanded, additional parking shall be required only in proportion to the new area of the building or use, as set out in Section 11-325, Compliance Thresholds.

b.

If the use of a building changes, resulting in additional demand for parking, additional parking shall be provided in an amount equal to the difference between the requirements of the former use (not the actual parking provided on-site) and the requirements for the new use, as set out in Subsection 11-803.02., Required Parking and Loading. However, a permit for the new use may be denied if the available parking is less than 75 percent of the required parking.

c.

If an existing building is redeveloped or substantially improved, parking shall be provided as required by Section 11-803, Parking and Loading Calculations.

2.

Size of Parking Spaces and Drive Aisles. Parking spaces and drive aisles shall be sized according to the requirements of Subsection 11-804.02., Space and Module Standards, when so required by Section 11-325, Compliance Thresholds.

G.

Nonconforming Landscaping, Buffering, and Screening. Multifamily, nonresidential, and mixed use properties that are nonconforming with respect to the standards of Section 11-814,Landscaping, and Section 11-815, Bufferyards, shall be brought into compliance when the property is redeveloped or substantially improved, and shall be brought into compliance as set out in Section 11-325, Compliance Thresholds.

H.

Nonconforming Signs or Sign Elements.

1.

Restoration. A nonconforming sign which has been damaged by fire, wind, water, or other cause in excess of 50 percent of its replacement cost shall not be restored except in conformance with this UDC.

2.

Replacement of Nonconforming Element. If an element of a sign that causes the sign to be nonconforming is removed, it shall not be replaced, except with a conforming element.

3.

Discontinuance of Message. If a nonconforming sign structure does not display any message for a period of 90 days, it shall be removed or brought into conformance with this UDC. For the purposes of this standard, a temporary sign may be used to display a message while a new sign face is being designed and fabricated.

4.

Removal. If a nonconforming sign structure is removed for any reason other than routine repair and maintenance, it shall not be replaced unless the replacement sign conforms to this UDC.

5.

Unsafe Signs. Nonconforming signs that are a danger to the public safety due to damage or wear shall be removed and shall not be replaced unless the replacement sign conforms to this UDC.

6.

Amortization. Within any district, all premise identification signs or other signage that pertains to the premises on which such sign is located shall comply fully with the provisions of this UDC, unless otherwise provided, within 15 years after the effective date of this UDC. This amortization provisions does not apply to outdoor advertising signs, provided that such signs remain in continuous use. Any nonconforming outdoor advertising sign that remains unused for a continuous period of 180 days shall forfeit its right to continue as a nonconforming sign.

A.

Generally. A nonconforming use shall not be changed to another nonconforming use.

B.

Effect of Change of Use.

1.

If a nonconforming use is changed to a conforming use, the nonconforming use shall not be resumed.

2.

If the use of only a portion of a building or property is changed from a nonconforming use to a conforming use, then the use of that portion of the building or property shall not be changed back to the nonconforming use.

C.

Reuse of Vacant Nonconforming Buildings. An existing vacant nonresidential building in a residential district, previously occupied by and structurally designed for nonresidential use, may be renovated and reoccupied under the following conditions:

1.

An application for conversion of the use is filed pursuant to by Section 11-325, Compliance Thresholds, and the application is granted;

2.

The off-street parking requirements comply with the provisions of Section 11-800, Parking, Loading, and Access;

3.

The landscaping and buffering requirements comply with the provisions of Section 11-810, Landscaping, Buffering, and Screening; and

4.

The property complies with the applicable yard requirements.

A.

Nonconforming Lots.

1.

Construction on Nonconforming Lots. A nonconforming lot that does not meet district requirements with respect to area, lot width, or frontage may be built upon if:

a.

The lot is a lot of record;

b.

The use is permitted in the district in which the lot is located;

c.

The lot has sufficient frontage on a public street to provide access that is appropriate for the proposed use;

d.

All yards or height standards are complied with.

2.

Re-subdivision. A nonconforming lot shall not be made more nonconforming through the process of re-subdivision.

B.

Combination of Lots to Increase Conformity.

1.

Where a landowner owns several abutting lots that do not conform to the dimensional requirements of the district in which they are located, they shall be combined to create fully conforming lots or, if full conformity is not possible, they shall be combined if the combination will increase the degree of conformity.

2.

The city will not require the combination of lots if:

a.

The combination of lots would not address a nonconformity; and

b.

Two or more of the lots are developed with principal buildings, and the combination of lots would require that one or more of the buildings be torn down in order to comply with this UDC.

A.

Generally. Repairs and modifications to nonconforming buildings, structures, and signs are permitted as provided by this subsection.

B.

Expansion of Nonconforming Uses.

1.

Major Nonconforming Uses. Major nonconforming uses shall not be expanded, enlarged, extended, increased, or moved to occupy an area of land or building that was not occupied on the effective date of this UDC or any amendment that made the use a major nonconforming use.

2.

Minor Nonconforming Use. No minor nonconforming use shall be expanded or extended in such a way as to:

a.

Occupy any open space or landscaped surface are that is required by this UDC;

b.

Exceed building cover, impervious cover, intensity, or height limitation of the district in which the use is located;

c.

Occupy any land beyond the boundaries of the property or lot as it existed on the effective date of this UDC; or

d.

Displace any conforming use in the same building or on the same lot or tract.

C.

Alterations and Repairs.

1.

Buildings Containing Major Nonconforming Uses. No building or structure that contains a major nonconforming use shall be enlarged unless the major nonconforming use is permanently discontinued.

2.

Structural Alterations. Structural alterations to nonconforming buildings, structures, and signs are permitted only if it is demonstrated that the alteration will eliminate the nonconformity or reduce it in accordance with the standards of Section 11-325, Compliance Thresholds.

3.

Maintenance and Repair. Routine maintenance of nonconforming buildings and structures is permitted, including necessary non-structural repairs, paint, and incidental alterations which do not extend or intensify the nonconforming buildings or structures or materially extend their life. This standard also applies to buildings or structures that house nonconforming uses if they are designed in a way that is not suitable for re-use as a conforming use. If the building is conforming and could be re-used for a conforming use, there is no limitation on its maintenance.

4.

Signs. Routine maintenance of nonconforming signs is permitted, including necessary non-structural repairs, paint, and incidental alterations which do not extend or intensify the nonconforming sign or materially extend its life. This standard applies to changing the message of a sign by replacing or repainting the sign face.

D.

Expansion of Nonstandard Uses. Notwithstanding any provision contained in this UDC to the contrary, in all zoning districts, a conditional use permit may be granted to authorize (1) the enlargement, extension, structural alteration, conversion, or reconstruction of a building or structure located upon a premises with a nonstandard use; and/or (2) decreased minimum requirements upon a premises with a nonstandard use provided that the city council finds that such decrease in minimum requirements (i) would not adversely affect the surrounding area; and (ii) the decrease is necessary in order for a building or structure located upon a premises to practicably be enlarged, extended, structurally altered, converted, or reconstructed, or such decrease is otherwise necessary to allow an existing premises to be subdivided.

The conditional use permit shall be granted pursuant to the procedures set forth in Section 11-316.05(c) for conditional use permits and shall comply with the standards for conditional use permits set forth in Section 11-316.05(B)(1—6). In consideration of applications for the conditional use permits under this Section 11-324.04(D), the following criteria shall be given specific consideration:

1.

Effects on adjacent property, safety, traffic, city utility service needs;

2.

Density of land use zoning for the subject property and adjacent property; and

3.

Economic impact for the city.

E.

Exceptions to the Minimum Lot Requirements Residential:

1.

In the R, SR, AR and UR zoning districts if a vacant lot or tract of land has less area or width or both less area and width than herein required and its boundary lines along their entire length abutted lands under other ownership on January 1, 1960, and have not since been changed, such lot or tract of land may be used for a single-family dwelling provided that:

a.

A side yard of at least five feet shall be provided when located in the R district.

2.

Where a vacant lot or tract of land has less area or width or both less area and width than herein required and its boundary lines along their entire length abutted lands under other ownership on January 1,1960 and have not since been changed, the lot or tract of land may be used for a single-family dwelling use permitted in this chapter.

3.

If a vacant lot or tract of land under (c)(1) or (c)(2) above comes under common ownership with an abutting lot or tract of land, such vacant lot or tract of land may be used for a single-family dwelling provided said abutting lot or tract of land was occupied by a dwelling on the date such contiguous properties came under common ownership.

4.

The City Council may, via Conditional Use Permit, reduce the minimum lot requirements for residential districts provided for herein to allow a lot to be subdivided into two lots on which a single-family attached dwelling may be constructed.

F.

Enlargement, Extension, or Reconstruction of Nonstandard Single-Family Dwellings Into Required Yards:

1.

In the R, SR, AR and UR districts, the enlargement, extension, or reconstruction of a nonstandard main building used as a single-family into a required yard is allowed under the following conditions:

a.

The proposed building enlargement, extension, or reconstruction shall not extend further into any required yard than the furthest extension of an existing exterior wall of the building, not including a bay window or any other projection allowed by Section 11-616(B) or any wall of less than ten (10) feet in length, and shall maintain a minimum required setback of three (3) feet for a side yard and twenty (20) feet for a front or three (3) feet for a rear yard.

b.

The use of the main building shall remain a single-family dwelling.

c.

This does not allow for the enclosure of front porches that encroach into the front yard setback.

G.

Lots or tracts of land containing more than one single family residence prior to January 1, 1971, may be subdivided to provide one (1) lot per residence provided that no such lot contains less area than four thousand (4,000) square feet in the SR district, or 3,500 square feet in the, AR and UR districts. In the R district lots or tracts of land containing more than one (1) single family residence prior to January 1, 1971, may be subdivided into lots smaller than one (1) acre but larger than .75 acre provided that the subdivider can first receive approval from the State of Nebraska regarding the size, spacing and design of septic systems and water wells or receive approval to connect to city sewer and water services.

(Ord. No. 5490, § 1, 2-26-19; Ord. No. 5508, § 1, 10-8-19; Ord. No. 5700, § 1(Att. A), 12-10-24)

The purpose of this section is to encourage reinvestment in existing buildings and properties by reasonably mitigating the costs of retrofitting existing buildings and sites to achieve full compliance with this UDC. This section does not relate to building code compliance or compliance with applicable engineering standards.

Set out in Table 11-325.02., Administrative Compliance Requirements, is the levels of reinvestment in property that trigger compliance with the regulations set out in this UDC.

This section establishes the procedures that the city may use to assure compliance with the provisions of this UDC and to correct violations. The section also sets out the remedies and penalties that the city may seek to correct violations. The provisions of this section are intended to encourage the voluntary correction of violations.

A.

Enforcement Official. The provisions of this UDC shall be administered and enforced by the city administrator or such other person(s) as may be designated by the city administrator.

B.

Compliance Required. No person shall develop or use any land, building, or structure within the city in violation of this UDC, regulations authorized under this UDC, or the terms and conditions of permits issued under this UDC or adopted uniform codes. The use of any land or structure shall conform to all conditions, restrictions, or limitations contained in any permit or required under any ordinance, and failure to conform shall be a violation of this UDC.

C.

Continuation of Prior Enforcement Actions. Nothing in this UDC shall prohibit the continuation of previous enforcement actions undertaken by the city pursuant to regulations in effect before the effective date of this UDC. Enforcement actions initiated before the effective date of this UDC and amendments hereto may be continued to completion or settlement under the terms of the regulations in effect prior to the effective date of this UDC.

A.

Responsibility. The zoning administrator, or an appointee, who is designated by the city administrator shall be responsible for administering and enforcing these regulations. As the administrative official, the zoning administrator may be provided with the assistance of such other persons as the city administrator may direct.

B.

Correction of Violations. If the zoning administrator, or an appointee, finds that any of the provisions of this UDC are being violated, he or she shall notify in writing the persons responsible for such violations, indicating the nature of the violation and ordering the action necessary to correct it. The zoning administrator, or an appointee, shall order the following:

1.

Discontinuance of illegal use of land, buildings, or structures;

2.

Removal of illegal buildings or structures or of additions, alterations, or structural change thereto;

3.

Discontinuance of any illegal work being done; or

4.

Shall take other action authorized by law to ensure compliance with or to prevent violation of its provisions.

A.

Complaints. Whenever a violation of this UDC occurs or is alleged to have occurred, any person may file a written complaint. Such complaint stating fully the causes and basis of the complaint shall be filed with the zoning administrator, acting as the administrative official. The zoning administrator shall record properly such complaint, immediately investigate, and take action as provided by this UDC.

B.

Penalties. Violations of the provisions of this UDC or failure to comply with any of its requirements shall constitute a misdemeanor. Any persons who violate this UDC or fails to comply with any of its requirements shall upon conviction thereof be fined not less than an amount set out in the fee schedule established by city council, as amended from time to time, or imprisoned for not more than 60 days, or both, and, in addition, shall pay all costs and expenses involved in the case. Each day such violation continues shall be considered a separate offense.

C.

Penalties of Responsible Parties. The owner or tenant of any building, structure, premises, or part thereof, any architect, builder, contractor, agent, or other person who commits, participates in, assists in, or maintains such violation may each be found guilty of a separate offense and suffer the penalties provided in this section.

D.

Other Lawful Action. Nothing herein contained shall prevent the City from taking such other lawful action as is necessary to prevent or remedy any violation.

E.

Repeat Violations. When a person has deliberately commenced a project without a permit and it is a second violation of this UDC by the offender, then the building official shall refer the project for abatement or judicial remedy as set out in this section.

A.

Generally. The city may abate violations of this UDC pursuant to this subsection. This remedy is authorized for, but is not limited to, any situation where any property owner fails to construct, improve, or maintain any improvement that is required by the terms of any permit or approval, or any condition upon any land that is in violation of this UDC.

B.

Warning Notice Required. Before action is taken to abate a violation to this UDC or any violation to an ordinance or other policies of the city, a final warning notice shall be posted on the property and served personally or by certified mail with return receipt required to the owner of record of the property, or to the property owner or association, as applicable, and a period of 10 days shall be given from the date of the notice indicated by the date on the letter. Failure to receive such notice when proof of delivery to the correct address has been provided by the U.S. Post Office shall not forestall enforcement action under this provision.

C.

Timing of Abatement. Unless this notice is appealed, pursuant to requirements herein within 10 days of the posting of the final warning, the city may proceed to abate the violation in accordance with city policies and procedures.

D.

Documentation of Costs. The zoning administrator shall keep an account of the direct and indirect cost incurred by the city in the abatement of any violation. The zoning administrator shall forward a bill for collection to the violator or association, and to owner of record of the property specifying the nature and costs of the work performed. For purposes of this subsection, direct and indirect costs shall include, but not be limited to, the actual expenses and costs to the city in the preparation of the notices, specifications and contracts, actual physical abatement processes, work inspection, and interest from the date of completion at the rate prescribed by law for delinquent real property taxes.

E.

Payment of Costs by Owner. The responsibility for payment of the charges for abatement as set out in this subsection shall rest solely upon the owners of the property upon which the abatement occurred, or the property owners' association, as applicable. Such charges shall become a lien upon the real property or properties upon which the violation was located or upon properties associated with the property upon which the violation was located. The lien shall be subordinate to all existing special assessment liens previously imposed upon the same property and shall be paramount to all other liens except for state or municipal property taxes, with which it shall be upon a parity. The lien shall continue until the charges and all interest due and payable thereon are paid.

F.

Allocation of Costs for Property Controlled by Property Owners' Associations. Where a property owners' association is involved:

1.

Expenses under Subsection E., above, shall be prorated among all lots and/or owners of lots within the subdivision.

2.

Actions directed under this subsection are considered delivered if they are addressed and sent by certified mail to the responsible person(s) who are shown to be the responsible person(s) on the most recent tax roll of the city.

A.

Generally. This subsection sets out remedies that may be requested by the city to enforce this UDC in a court of competent jurisdiction. This subsection shall not limit the power of the city to pursue multiple or alternative actions, remedies, and penalties, or to pursue actions, remedies, and penalties that are authorized by law but not listed in this subsection.

B.

Fines. Any person, firm, corporation, agent, or employee thereof who violates any of the provisions of this UDC shall be fined according to the provisions of the zoning ordinance of the City of Fremont, as amended from time to time.

C.

Injunctive Relief.

1.

The city may seek injunctive relief or other appropriate relief in court of competent jurisdiction against any person who fails to comply with any provision of this UDC or any requirement or condition imposed pursuant to this UDC or any violation to a uniform code or other policies of the city. In any court proceedings in which the city seeks a preliminary injunction, it shall be presumed that a violation of this UDC or continued violation of this UDC is, will, or may be an injury to the public health, safety, or general welfare; that the public health, safety, or general welfare will or may be irreparably injured by the continuation of the violation unless the violation is enjoined; and that there is no plain and adequate remedy at law for the subject violation.

2.

The city may seek an affirmative injunction to require the demolition or removal of a structure, or to allow the city to demolish or remove a structure and recover costs against the landowner, pursuant to the provisions of state law.

A.

Conditional Uses.

1.

Generally. The provisions of this subsection may be applied to enforce a conditional use permit.

2.

Inspection. The city may:

a.

Make inspections to determine compliance with the provisions of this UDC and the conditional use permit, and initiate appropriate action as necessary; and/or

b.

Keep a record of complaints, indicating any action taken. These records shall be made available at the time of renewal of the conditional use permit if there has been a time period placed on the conditional use, or where the planning commission has been requested to review the conditional use for compliance.

3.

Conditional Use Permit Revocation. Upon determination of noncompliance with the provisions of the conditional use permit, the city will take actions as necessary to assure compliance. Such actions may include non-renewal or revocation of the permit as follows:

a.

The zoning administrator shall provide a notice of violation to the record owner of the property upon which a conditional use is located, advising the owner that the use must be brought into compliance with specified UDC sections within 30 days from the date of the notice.

b.

If total compliance has not occurred or a plan for compliance has not been submitted to the zoning administrator within 30 days from the date of notice, then the zoning administrator shall issue a cease-and-desist order and notify the record owner of a hearing date by the planning commission to consider revocation of the conditional use permit.

c.

The planning commission shall revoke the conditional use permit if the use and/or property is/are not in total compliance. The planning commission may grant up to a 30 day period for compliance. The conditional use permit shall remain in suspension and the cease-and-desist order shall remain in effect until total compliance is obtained.

d.

At the end of a compliance period the planning commission shall revoke the conditional use permit if total compliance has not been obtained.

e.

If the use and property are brought into compliance, any further violation of terms of the conditional use permit within 90 days from the initial notice of violation are grounds for immediate revocation of the conditional use permit.

f.

Revoked conditional use permits may only be reinstated by the city council, which may impose conditions to ensure compliance.

B.

Historic Preservation.

1.

Generally. The purpose of this subsection is to provide additional means of enforcing the city's historic preservation. The remedies available to the city in this subsection are in addition to any other remedies allowed by this UDC or applicable law.

2.

Revocation of Designation. The planning commission may revoke classification designators for failure by the property owner(s) within a historic district or of a designated historic property to maintain the structure at the prescribed levels. Revocation procedures shall be as follows:

a.

The affected property owner and all property owners of the affected historic district or property, as applicable, shall be given written notice of the time and place of the hearing by certified mail sent at least 10 days before the meeting to the owner's address of record.

b.

Notice shall be provided as set out in Subsection 11-314.09., Public Notice.

c.

The zoning administrator shall make a presentation at the scheduled hearing and render a recommendation to the planning commission. The owner or owner's agent or representative shall attend the scheduled hearing. In the event the owner or owner's agent or representative fails to be present at the hearing the planning commission shall table the item. At any subsequent meeting and regardless of the absence of the owner or owner's agent or representative, the planning commission may take action.

d.

The planning commission shall consider a recommendation to withdrawal a designation if it finds that:

1.

A designated historic district has failed to maintain the characteristics of which it was designated;

2.

A designated district of historic property has failed to maintain the specified criteria; or

3.

Either such a district or property has failed to follow any relevant guidelines established by the city.

e.

After the city council receives the planning commission's recommendation if shall provide notice by publication as provided in Subsection 11-314.09., Public Notice, conduct a public hearing during which the zoning administrator shall make a presentation and render the planning commission's recommendation, and take action on the recommendation.

3.

Fines. A person found guilty of demolition of a designated property by neglect or without a required certificate of appropriateness shall be fined an amount set out in the fee schedule established by the city council, as amended from time to time.

4.

Violations Constitute Misdemeanor. Any person who shall violate, participate or acquiesce in the violation of any provision of this UDC relative to its historic preservation, or who shall fail to comply therewith or with any of the requirements thereof, or who shall erect or alter any building historic resource in violation of any detailed statement or plan required to be submitted and approved pursuant to this UDC shall for each and every violation or noncompliance be deemed guilty of a misdemeanor and shall, upon conviction, be punished accordingly.

5.

Authorized to city attorney. The city attorney's office is hereby authorized to file an appropriate action in a court of competent jurisdiction to enforce the provisions hereof by the cause in equity or by any other remedy available by law.