As permitted by section 15.2-2286 of the Code of Virginia, 1950, as amended, the purpose of the use permit process is to develop and enforce regulations for a specific use on a specific parcel of land, such that the use is not detrimental to surrounding properties, even though that use is not permitted by right in the zoning district in which the parcel is located. These uses may be allowed under the suitable regulations, safeguards, controls, and limitations (collectively "conditions") of a use permit. It is the duty of the city council under the provisions of this chapter to evaluate the impact and the compatibility of each such use, and to stipulate such conditions, in addition to those specifically contained in the applicable zoning district, if any, as will assure the use is compatible with the neighborhood in which it is located. Nothing in this ordinance shall guarantee, through implicit or explicit language, the granting of any use permit. Use permits shall be limited to those specified in the individual zoning districts.

Prior to the formal submission of an application, the community development department, if requested, will meet with the applicant and will review the criteria and standards governing the use permit process. In no way shall a pre-application conference be construed to equate to the approval of any subsequent application.

(1)

Application for a use permit shall be made by the property owner, or by persons other than the property owner with the written consent of the property owner, in writing to the director of the department of community development or his designee. A complete application shall include the following:

(a)

A fully completed "Use Permit Application," as provided in subsection (3) below; and

(b)

A non-refundable application fee of six hundred fifty dollars ($650.00) except that Qualified Arts and Cultural Businesses located in a designated Arts and Cultural District shall be eligible for a 100% reduction in the use permit application fee under the terms and conditions set forth in the Hampton City Code.

(2)

All application materials shall be submitted in writing and will become part of the record of the hearing on the use permit application.

(3)

A complete Use Permit Application shall include, unless waived by the director of the department of community development or his designee, the following information:

(a)

A legal description of the property for which the use permit is requested, including the actual dimensions and shape of the property, as well as the current zoning classification;

(b)

The names and addresses of the owners of the subject property and their agents, if any, and the written consent of the property owner if the applicant is not the property owner;

(c)

The most recent surveyed plat of the property involved in the use permit;

(d)

A site plan of the subject property prepared by a duly licensed professional engineer, land surveyor, architect, or landscape architect authorized to do business in the state of Virginia showing property boundaries, existing and proposed buildings and uses, yards, open spaces, pedestrian walkways, landscaping, screening and buffering, fences, signs, access to the site, and on-site parking and vehicular circulation, easements, water bodies, floodplains, wetlands and other natural features, existing and proposed streets, and utilities and drainage facilities within one-quarter-mile of the subject property The site plan shall also include the name of the property owner, as well as the name of the person who prepared the plan, together with the north point, scale (one (1) inch equals thirty (30) feet) and number of sheets of the plan. Required plans shall be submitted in such numbers as determined by written policy of the department of community development;

(e)

Elevation drawings and general floor plans of all buildings;

(f)

Information regarding the impact and/or demand the proposed use will place on the city's public services and facilities, including but not limited to traffic, public safety services, water, sewer and utility services, education, and other community facilities and services;

(g)

Proof that all city and state ad valorem taxes due upon the property have been paid in full; and

(h)

A statement specifically addressing all of the standards for review set out in the Use Permit Application.

(Ord. No. Z15-24, 12-9-2015)

Upon submission and acceptance of a complete application for a use permit, the following review procedures shall apply:

(1)

Action by the director of the community development department.

(a)

The director of the community development department or his designee shall transmit the use permit application to appropriate city departments and other agencies affected by the proposal, retrieve comments, and develop any conditions suitable to mitigate the impact of the proposed use, as set forth in section 14-5 of this chapter.

(b)

The director of the community development department or his designee shall have forty-five (45) days to respond to the applicant by forwarding any department or agency comments and identifying any deficiencies in the application.

(c)

The director of the department of community development or his designee shall not schedule the application for a public hearing before the planning commission until either he receives information addressing the deficiencies in the application and any required additional information or a written statement by the applicant stating that the stated deficiencies will not be addressed and/or no further information will be submitted.

(d)

Subject to meeting all advertising and notification deadlines and upon receipt of information addressing deficiencies or a written statement by the applicant stating that the deficiencies will not be addressed and/or no further information will be submitted as described in subsection (c) above, the director or his designee shall forward the application to the planning commission. The forwarded application shall include any comments from city departments or other agencies, the manner in which the proposed use permit application complies or does not comply with the applicable provisions of this chapter, and any recommendations the community development department may have regarding approval, disapproval or conditions to be attached to the proposed use.

(2)

Action by the planning commission.

(a)

Upon receiving the use permit application with all related material, the planning commission shall give notice of and hold a public hearing in accordance with section 15.2-2204 of the Virginia Code, as amended. A party's actual notice of or active participation in, the public hearing shall waive the right of that party to challenge the validity of the proceeding due to the failure of the party to receive the written notice required herein.

(b)

After the public hearing, the planning commission may:

(i)

Recommend approval of the use permit with the conditions stated in the applicable zoning district, if any, and any additional conditions developed by the community development department;

(ii)

Recommend disapproval; or

(iii)

Recommend approval with the conditions stated in the applicable zoning district, if any, and different conditions than those developed by the community development department as deemed appropriate to protect the public interest in accordance with section 14-5 of this chapter and the standards set forth in section 14-6 of this chapter.

(c)

Unless the use permit application is deferred or withdrawn pursuant to sections 14-7 or 14-8 of this chapter, within forty-five (45) days after the public hearing the planning commission shall forward its recommendation to the city council.

(3)

Action by the city council.

(a)

Upon receiving the recommendation of the planning commission, the city council shall hold a public hearing on the application in accordance with section 15.2-2204 of the Virginia Code, as amended. A party's actual notice of, or active participation in, the public hearing shall waive the right of that party to challenge the validity of the proceeding due to the failure of the party to receive the written notice required herein.

(b)

After the public hearing, the city council may:

(i)

Approve the use permit with the conditions recommended by the planning commission;

(ii)

Disapprove the use permit;

(iii)

Approve the use permit with conditions stated in the applicable zoning district, if any, and any additional conditions as deemed appropriate to protect the public interest in accordance with section 14-5 of this chapter and the standards set forth in section 14-6 of this chapter; or

(iv)

Refer the application back to the planning commission for further consideration or advice.

(c)

Unless the application is sponsored by the City of Hampton, the city council shall not approve a use permit until any delinquent real estate taxes owed to the City of Hampton on the subject property have been paid.

(Ord. No. Z15-15, 8-12-2015)

(1)

Conditions stipulated by the city council may include, but are not limited to:

(a)

Those conditions specifically contained in the applicable zoning district, if any.

(b)

Those related to fencing; planting or other landscaping; additional setbacks from property lines; location and arrangement of lighting; setting of reasonable hours of operation upon the use of the property; and the operation, establishment, location, and construction of the use.

(c)

Other matters relating to the purposes and objectives of the zoning ordinance as may be necessary or appropriate to prevent or minimize adverse effects upon other property and improvements in the vicinity of the subject property or upon public facilities and services, or are necessary to protect the public interest and to secure compliance with the standards and requirements specified in this chapter.

(2)

The city council may impose a condition for a time limitation when granting a use permit if, in the estimation of the director of the department of community development, the planning commission, or the city council, the proposed use is of such nature that a mandatory review is necessary to affirm that the use permit is in compliance with all conditions imposed and provisions of this chapter.

Without limiting the discretion of either the planning commission or city council, the planning commission and city council may consider whether the proposed use and operation thereof, together with the conditions attached, meets the following standards:

(1)

That the proposed use will not be detrimental to or endanger the public health, safety, or general welfare, including but not limited to consideration that:

(a)

Adequate public facilities, improvements and services have been or will be provided; and

(b)

Adequate measures have been or will be taken to provide ingress and egress designed to minimize vehicle traffic congestion on public streets and provide for safe pedestrian traffic.

(2)

That the proposed use will conform to:

(a)

The city's comprehensive plan and official policies adopted in relation thereto, including this chapter;

(b)

The goals and objectives of the Hampton Zoning Ordinance; and

(c)

The applicable regulations of the zoning district classification in which the use is located.

(3)

That the proposed use is compatible with and not injurious to the enjoyment, use, and orderly development and improvement of the properties in the immediate vicinity of the subject property. Specific factors to be considered by the planning commission and city council may include the following, in relation to the immediate vicinity of the subject property:

(a)

Adequate safety, including fire hazards and use of effective measures for fire control, the location and type of any fuel and fuel storage the location and nature of any proposed security features and provisions, and other similar factors;

(b)

The impact of nuisances, including noise, glare or light odors, fumes, dust, vibrations or other similar factors emanating from the site;

(c)

The preservation or destruction, loss or damage of any topographic or physical, natural, scenic, archaeological, or historic feature in the immediate vicinity or neighborhood;

(d)

The location, lighting, and type of signs in relation to the proposed use and the sign requirements of the zoning ordinance;

(e)

The days and hours of operation associated with the proposed use, including the number of full and part-time employees;

(f)

The location and use of any anticipated accessory uses and structures and any existing nonconforming uses and structures associated with the proposed use;

(g)

The location, nature, and extent of existing or proposed landscaping, screening and buffering on the site, including parking and loading spaces and areas; and

(h)

The location of any parking and loading spaces and areas.

(1)

Deferral of consideration of any use permit application filed pursuant to this chapter may be requested by the applicant in writing at any time, provided that:

(a)

If the request for deferral is made prior to the publication of the notice of public hearing for either the planning commission or city council, whichever is applicable at the time, such shall be granted administratively, for a period not to exceed one hundred eighty (180) days.

(b)

If the request for deferral is made after the publication of the notice of public hearing, such deferral shall only be granted with the consent of either the planning commission or city council, whichever body advertised the hearing.

(c)

If an application is deferred at the request of the applicant after it has been advertised for public hearing, an additional fee of three hundred dollars ($300.00) shall be paid by the applicant for re-advertising the application.

(2)

The planning commission or city council may defer consideration of any use permit application filed pursuant to this chapter upon a finding that there is a public benefit to be gained by deferring the application. Applications deferred by the planning commission or the city council will not be subject to the additional re-advertisement fee.

A use permit application may be withdrawn from consideration at any time, in writing by the applicant, provided that if the request for the withdrawal is made after publication of the notice of public hearing either before the planning commission or city council, withdrawal shall be granted only with the consent of either the planning commission or city council, whichever body advertised the hearing.

No application for a use permit shall be accepted within one (1) year of denial by the city council of a use permit application concerning substantially the same use on substantially the same land.

All persons aggrieved by a decision of the city council granting or failing to grant a use permit must appeal within thirty (30) days of the decision to the Hampton circuit court as set forth in section 15.2-2285 of the Virginia Code, as amended. However, nothing in this section shall be construed to create any new right to contest the action of the city council.

The city council may revoke a use permit, after notice and a public hearing as set forth in section 15.2-2204 of the Virginia Code, as amended, for any violation of a term or condition thereof or repeated or continuing violations of the city zoning ordinance or city code, failure to comply with approved plans, and/or when false, fraudulent, or misleading information is supplied by the applicant. The consideration of a possible revocation shall follow the procedure set forth in this chapter for approving the use permit, provided that fifteen (15) days' written notice is given to the owner of the subject property prior to the public hearing.

Unless otherwise specified in this ordinance or in the conditions of the use permit, a use permit shall automatically expire and become null and void under any of the following conditions:

(1)

If, in the case of new construction, the building has not been erected, with doors, windows, roof covering and exterior finish materials in place within two (2) years of the issuance of the use permit;

(2)

No building permit to construct the authorized improvements has been issued within twelve (12) months of the date of approval by the city council, or if no building permit is required, if the use is not established within twelve (12) months of the date of approval by the city council; or

(3)

Once the property may be occupied, if the property is not used for the permitted purpose for a continuous two-year period unless otherwise specified in the zoning ordinance.

(Ord. No. Z25-0199, 8-13-2025)

Any amendment or change of substance to an approved use permit shall be subject to the same procedures and standards as for a new application. Minor modifications to approved terms and conditions of a use permit may be authorized by the director of the department of community development or his designee when such modifications do not: expand or significantly alter the location or boundaries of the use; conflict with specific requirements of this chapter; decrease the width or depth of any yard, setback or buffer area; significantly alter points of access to the property or the internal arrangement of site plan elements; or have an appreciable effect on surrounding properties.

Any use legally established prior to October 9, 1996 shall be considered a nonconforming use.

The use permit and all its conditions shall apply to the property for which it is issued so long as such property is used for the permitted purpose, regardless of changes in the ownership of the property, provided the use permit is not expired or revoked, or the use is terminated through a subsequent rezoning. Approval of a use permit shall not be considered a rezoning of the subject property. Once the use permit is approved by the city council, the conditions attached to the use permit shall constitute additional zoning regulations and requirements for the site, which to the extent of any conflict shall supersede the zoning district regulation. All other regulations of the zoning district in which the use is located shall apply and remain in force.

Whenever the public necessity, convenience, general welfare, or good zoning practice requires, the city council may, by ordinance, amend, supplement, or change the regulations, district boundaries, or classifications of property. Any such amendment may be initiated by resolution of the city council or motion of the planning commission, or by petition submitted to the planning director by the property owner or the authorized agent therefor of the property which is the subject of the proposed zoning map amendment or rezoning. Applications may be submitted by persons other than the property owner provided that written consent of such action, signed by the property owner(s), is included with the application. The terms "application" and "petition," and "applicant" and "petitioner" are used interchangeably throughout this chapter. The term "planning director" means the director or his designee.

(1)

Applications shall include the following materials:

(a)

A fully completed rezoning application as provided by the planning director;

(b)

The most recent surveyed plat of the property proposed for rezoning;

(c)

A non-refundable application fee of seven hundred fifty dollars ($750.00) plus one hundred dollars ($100.00) per acre or portion thereof, except that Qualified Arts and Cultural Businesses located in a designated Arts and Cultural District shall be eligible for a 100% reduction in the rezoning application fee under the terms and conditions set forth in the Hampton City Code; and

(d)

A check made payable to the clerk of the Circuit Court of the City of Hampton in an amount required by the clerk to cover recording fees for the proffer, if applicable.

(2)

Once the application has been submitted, the planning director or his representative shall review the application with the applicant. Subject to the provisions of section 14-24(7) as applicable to conditional zoning applications, if the application is complete, the planning director shall schedule the application for public hearing with the planning commission. If the application is not subject to section 14-24 and the application is not complete, no later than thirty (30) days of receipt of the application not subject to section 14-24, the planning director shall return the application to the applicant with a statement of the reasons for the deficiency. Upon certification by the director that the application is complete and payment of required fees, the application shall be deemed received and shall be transmitted to the planning commission.

(3)

In addition to the requirements set forth in this section, if the application is for a conditional zoning and conditions are to be proffered, the applicant is responsible for supplying a voluntary proffer in accordance with the provisions outlined in section 14-24 herein. If no conditions are to be proffered, a written statement to that effect must be submitted and the application will be considered as a change of zoning classification. Submission of either the proffer or statement is required for the application to be advertised for public hearing.

(Ord. No. Z15-15, 8-12-2015; Ord. No. Z15-24, 12-9-2015)

Consideration of proposed amendments to zoning district boundaries, to classifications of property or conditional zonings may include, but need not be limited to, the adopted comprehensive plan and capital improvements plan, the timing of the proposed development, the relation of the proposed and existing development of utilities and public facilities; and the net public costs of the development. Unless the application is sponsored by the City of Hampton, the city council shall not approve an amendment to zoning district boundaries or classifications of property until any delinquent real estate taxes owed to the City of Hampton on the subject property have been paid.

(1)

Purpose. It is the purpose of this section to provide a procedure by which conditional zoning may be used in accordance with the enabling legislation provided in the Code of Virginia. It is the policy of the City of Hampton to encourage voluntary proffering of conditions by the applicant in cases where the use of traditional zoning methods is inadequate to achieve certain desired goals and where the proffered conditions will offset identified problems to the extent that the proposed rezoning is thus acceptable; but to discourage its use where the proffered conditions do not sufficiently offset or are unrelated to identified problems or where traditional zoning methods are adequate to achieve certain desired goals. It is further the purpose of this section to allow for complete and timely review and evaluation of the proffered conditions by city staff, the public, the planning commission and the city council.

(2)

Criteria for proffers. Proffers shall only be accepted as conditions attached to the conditional rezoning if they meet the following criteria:

(a)

the rezoning itself must give rise for the need for the condition;

(b)

such conditions shall have a reasonable relation to the rezoning;

(c)

all such conditions shall be in conformity with the comprehensive plan;

(d)

such conditions shall be capable of being readily and effectively enforced by the City of Hampton at the time of development of the property; and

(e)

such conditions shall be deemed necessary and sufficient to offset identified problems caused by the rezoning in a manner not readily available by traditional zoning methods.

(3)

Proffers including dedication of real property or cash proffers. In the event proffered conditions include the dedication of real property of substantial value or the payment of cash such dedication and the collection of payment thereof shall by in accordance with the provisions of section 15.2-2298 of the Code of Virginia.

(4)

Legal form of proffer. All proffers shall be in writing, prepared by the owner of the property or an attorney licensed to practice law in the Commonwealth of Virginia, and shall be in a form suitable for recordation in the deed books maintained by the Clerk of the Circuit Court of the City of Hampton. The proffer shall be accompanied by a check made payable to the Clerk of the Circuit Court of the City of Hampton in an amount required by the clerk to cover recording fees. No proffer shall be accepted by the city council which has not received the approval of the city attorney as to legal form and sufficiency.

(5)

Title certificate. Each conditional zoning petition shall be accompanied by a certificate of title, prepared and signed by an attorney licensed to practice law in the Commonwealth of Virginia. The certificate of title shall describe the property that is the subject of the petition and shall identify all parties having a recorded interest in the property, including legal and equitable owners, and shall state the source of title or interest for each party. The certificate of title shall state the date through which the attorney examined the title to the property, which date shall not be more than six (6) months prior to the date of filing the petition. The city attorney shall reject any certificate of title which, in his opinion, is incomplete or is otherwise insufficient.

(6)

Parties to sign the proffer. The written proffer shall name as grantors all owners of the property and shall be signed by all such parties. In the event the applicant for the conditional zoning is a contract purchaser, such purchaser shall also be made a party to the proffer and shall sign same. The foregoing provisions shall not be construed as limiting the authority of the city attorney to require any additional person, firm, association or corporation be made a party and sign the proffer, when in his opinion, the inclusion of such person, firm, association or corporation is necessary to protect the city's interest. Nor shall the foregoing be construed as limiting the authority of the city attorney to require that the proffer be approved by a court of competent jurisdiction in the case of church property.

(7)

Procedure for proffering.

(a)

The written proffers, together with the certificate of title described in subsection (5), and a check made payable to the clerk of the circuit court of the City of Hampton in an amount required by the clerk to cover recording fees shall be submitted to the planning director as part of the application for conditional zoning. In complying with the notice requirements of section 14-25 and 14-27 of this ordinance, the planning commission and the city council shall state whether conditions have been proffered, and such proffers shall be made available for public review by the planning director as part of the public documents in the case.

(b)

No later than thirty (30) days after receipt of the proffers, the planning director shall submit to the applicant a written statement identifying deficiencies in the proffered conditions, if any, or identifying any additional information needed. Upon receipt of the planning director's statement, the applicant may make any changes he deems appropriate to the written proffer, provided that they are submitted in writing and shall provide any additional information required by the planning director.

(c)

Subject to meeting all advertising and notification deadlines, the planning director shall not schedule the application for conditional zoning for a public hearing before the planning commission until the planning director receives information addressing the deficiencies in the proffers and such required additional information or a written statement by the applicant stating that the stated deficiencies will not be addressed and/or no further information will be submitted.

(d)

The applicant may make additional changes to the written proffer after the planning director schedules the complete application for a public hearing before the planning commission, provided that such changes are in writing and are submitted at least thirty (30) days prior to the planning commission public hearing. Provided, however, that where the written proffer provides for cash contribution, dedication of real property or payment for or construction of substantial public improvements, the planning director may require that the amended proffer be submitted at least forty-five (45) days prior to the public hearing when, in his opinion, such additional time will be necessary to allow adequate staff review of the sufficiency of such amended proffers. Upon receipt of the amended proffers, the planning director shall make them part of the public record. The planning commission shall not consider any proffer not made available for public review for at least thirty (30) days prior to the scheduled public hearing.

(e)

After holding a public hearing on the proposed conditional zoning, the planning commission, in its action on the proposal, may recommend acceptance of all, acceptance of some and rejection of some, or rejection of all of the proffers. The planning commission may also, with the concurrence of the applicant, defer action to a later meeting for the purpose of considering revised proffers, but only so that such revisions are submitted and reviewed on the same time schedule as for the original proffers established in this section.

(f)

Upon completion of planning commission action, the matter shall be forwarded to the city council in the manner of all rezonings. The city council, in acting on the proposal may accept all, accept some and reject some, or reject all of the proffers. The city council may also accept any modified proffered condition once the public hearing has begun if the amended proffer does not materially affect the overall proposal. Otherwise a modified proffer may be accepted only with the concurrence of all parties to the proffer, and only after a new public hearing is held before city council to consider the modified proffer with the modified proffer being submitted in writing to the planning director at least ten (10) days prior to said public hearing.

(g)

The planning commission and the city council may reject any proffer for failure to submit it in a form acceptable to the city attorney. No proffer may be modified or added except in accordance with these provisions. After the effective date of this subsection, the city council shall attach no condition to or accept any proffer with a conditional rezoning except in accordance with this section. Nothing herein shall be deemed to supersede any provisions of sections 14-25 through 14-29 of this ordinance.

(8)

Recordation of proffer and amendment of zoning map. If the city council approves the conditional zoning petition and accepts the written proffer, the city attorney shall, within ten (10) days of the city council's action, examine the appropriate records so as to determine whether any change in the interest of the property has occurred since the date of the certificate of title described in subsection (5). In the event that the city attorney determines that no such change in interest has occurred, he shall within said ten-day period, present the proffer to the clerk of the circuit court for recordation. If the city attorney determines that a change in interest has occurred, he shall notify the petitioner in writing that the proffer will not be recorded and that city council's action in approving the conditional zoning will be rescinded and void unless an appeal is filed for a hearing before the city council within sixty (60) days of the date of the city attorney's letter. The city attorney shall mail the notice described herein to the petitioner at the address given by the petitioner on the conditional rezoning petition. In the event that the petitioner files an appeal within the sixty (60) days of the date of the city attorney's letter, he shall be given an opportunity for a hearing before the city council. At the conclusion of such hearing, the city council may in its legislative discretion, permit the petitioner a certain amount of time in which to correct the objection raised by the city attorney or may rescind its earlier action in approving the rezoning. If either the petitioner fails to file his appeal within the said sixty-day period or upon hearing the appeal the city council acts to rescind its earlier action, the approval of the rezoning petition shall be void. In no event shall the zoning map be changed to reflect city council's approval of the rezoning petition until the planning director receives written notice from the city attorney that the proffer has been properly recorded.

(9)

Effect of recorded proffers.

(a)

Once proffered and accepted as part of an amendment to the zoning ordinance, such conditions shall continue in full force and effect until a subsequent amendment changes the zoning on the property covered by such conditions; provided, however, that such conditions shall continue if the subsequent amendment is part of the comprehensive implementation of a new or substantially revised zoning ordinance.

(b)

Once proffered and accepted as part of an amendment to the zoning ordinance including either the dedication of real property of substantial value, construction of substantial public improvements or substantial cash payment toward the construction, and the need for such dedication, construction or payment is not solely generated by the rezoning itself, no amendment to the zoning map for the property subject to such conditions, nor the conditions themselves, nor any amendments to the text of the zoning ordinance with respect to the zoning district applicable thereto may be initiated by the city which eliminate, or materially restrict, reduce, or modify uses, lot coverage, or the density of use permitted in the zoning district applicable to such property unless there has been mistake, fraud, or a change in the circumstances substantially affecting the public health, safety or welfare. This requires the property owner to pursue, in good faith, the completion of the development of the property.

(c)

Once proffered and accepted as part of an amendment to the zoning ordinance, the subject property shall be appropriately annotated on the zoning map referencing the conditions as adopted. A conditional zoning index, which shall contain a record of conditions attached to each such special annotation on the zoning map, shall be maintained by the zoning administrator and updated annually as required by state law. Such conditions shall be in addition to the specific regulations set forth in this zoning ordinance for the zoning district in question. Further, the zoning administrator is hereby vested with all authority necessary to enforce such conditions in the same manner as all other zoning regulations, as set forth in section 1-6 of this ordinance.

(d)

Upon approval, any site plan, subdivision plat, or development plan thereafter submitted for the development of the subject property shall be in substantial conformity with all proffers, plans, profiles, elevations, or other submissions, and no development shall be approved by any city official in the absence of such substantial conformity. For the purpose of this section, "substantial conformity" shall mean that degree of conformity which leaves a reasonable margin for adjustment due to final engineering data, but conforms with the general nature of the development, the specific uses, and the general layout depicted by the proffered submissions of the petitioner.

(10)

Amendment to accepted proffers.

(a)

Any landowner subject to conditions proffered pursuant to a conditional zoning under this chapter may apply for amendments or variations of such proffered conditions. Application for any such amendment or variation shall be subject to the same procedure as set forth in section 14-24, including payment of fees and recording costs. However, written notice of such application shall be provided in the manner prescribed by subsection H of section 15.2-2204 of the Code of Virginia to any landowner subject to such existing proffered conditions. The department of community development planning division staff shall prepare a staff report with recommendations on the proposed amendment or variation.

(b)

There shall be no such amendment or variation of any accepted proffered condition until after a public hearing is advertised pursuant to the provisions of section 15.2-2204 of the Code of Virginia.

(c)

Once approved by city council pursuant to this section, the amended or varied proffered conditions shall be recorded in the office of the clerk of the circuit court for the City of Hampton at the landowner's cost and shall continue to be an amendment to the zoning ordinance and may be enforced by the zoning administrator pursuant to the applicable provisions of this chapter.

(d)

The approval of such an amendment or variation by city council shall not itself cause the use of any other property subject to the original proffer agreement to be determined a nonconforming use.

(e)

Notwithstanding any other provision of law, no claim of any right derived from any condition proffered pursuant to a conditional zoning under this chapter shall impair the right of any landowner subject to such a proffered condition to secure amendments to or variations of such proffered conditions.

(11)

Petitions not meeting minimum requirements. Any petition for which the parcel involved or structure on the parcel does not meet minimum area or dimensional restrictions shall be processed nevertheless, but shall not be approved by city council unless it finds that either special circumstances pertinent to the site or special conditions attached to the petition pursuant to this section satisfactorily offset the negative effects inherent in the area or dimensional deficiency.

(Ord. No. Z15-15, 8-12-2015)

Before making any recommendation on a proposed amendment or conditional zoning petition, the planning commission shall give notice of a public hearing thereon, as set forth in section 15.2-2204 of the Code of Virginia, as amended; provided, however, that written notice as prescribed therein shall be given at least fifteen (15) days prior to the hearing. A party's actual notice of, or active participation in the public hearing required herein shall waive the right of that party to challenge the validity of the proceeding due to the failure of the party to receive written notice required herein.

(1)

Withdrawal or deferral of consideration of any petition filed pursuant to this chapter may be requested by the applicant in writing at any time subject to the following:

(a)

Unless a petition is withdrawn or deferred by the applicant/petitioner by letter or other formal notice prior to the publication of the notice of public hearing, the hearing shall be held at the time and placed announced; provided that if the hearing is postponed, new public notice shall be issued.

(b)

If the request for deferral or withdrawal is made after publication of the notice of public hearing, such shall be granted with the consent of the planning commission; provided, however if the deferral is at the request of the applicant or due to the applicant's failure to properly follow applicable procedures, then the re-advertisement shall be at the applicant's expense as set forth in section 14-30. With the exception of conditional zoning petitions, a deferral under this subsection shall be granted for a period not to exceed the second regularly scheduled planning commission meeting after the date of the deferral.

(2)

Following each hearing, the planning commission shall by motion adopt its recommendation, which may include any changes to the original proposal, and shall transmit such recommendation to city council. The planning commission shall make its report and recommendation to the city council in the form of resolutions duly authenticated. Such resolutions shall be forwarded to the clerk of council not later than forty-five (45) days following adoption by the planning commission.

(3)

Failure of the planning commission to report to the city council within one hundred (100) days after the first meeting of the planning commission on a proposed amendment or reenactment of the zoning ordinance shall be deemed a recommendation of approval unless the amendment or reenactment has been withdrawn by the applicant prior to the expiration of the time period.

(Ord. No. Z15-15, 8-12-2015)

Before approving or adopting any amendment or conditional zoning petition, city council shall give notice of a public hearing thereon, as required by law. Nothing in this chapter shall prohibit concurrent advertising of notice of public hearing as set for in section 15.2-2204 of the Code of Virginia, as amended; provided, however, that such concurrent advertising shall only be employed in the case of a city sponsored conditional zoning application, emergency legislation or compliance with amendments enacted by the general assembly of the Commonwealth of Virginia, or upon request of the applicant and upon the showing of good and sufficient cause, the planning director makes a determination that failure to grant the request would result in hardship to the applicant which hardship is not self-inflicted.

Where city council finds that there is public benefit to be gained by modifying a petition for amendment or conditional zoning under consideration, and that significant public inconvenience would not result from consideration within one (1) year of the modified petition, it may allow withdrawal of a petition for amendment or conditional rezoning during public hearing. However, if the petition is denied by city council, substantially the same petition shall not be filed within one (1) year of denial. For purposes of this section, a petition for a zoning amendment or conditional zoning shall be considered to be substantially the same petition when the request is for a district classification that is within the same chapter as the classification that was previously denied. These provisions shall not be held to impair the right of the planning commission or city council to propose an amendment to the zoning ordinance at any time.

(1)

The public hearing shall be held at the time and placed advertised. Following the hearing, city council may make appropriate changes or corrections in the proposed amendments; provided that no additional land may be zoned to a different classification than was contained in the public notice and no land may be rezoned to a less restrictive district classification without new notice and public hearing. Nothing herein shall be construed as prohibiting the city council from referring any petition back to the planning commission for further study and recommendation whenever it deems any change made in the petition to be substantial. In connection with such actions, the planning commission shall hold public hearings with notice suiting the circumstances of the case.

(2)

An affirmative vote of at least four (4) members of the city council shall be required to amend the ordinance. A reconsideration of a vote resulting in approval or denial may be initiated pursuant to section 2-48 of the city code.

(3)

A reconsideration of conditions attached to approval of any amendment may be initiated by the filing of an application with the planning director in accordance with the procedures set forth in section 14-21. Upon receipt of such application, the planning director, depending on the magnitude of the proposed reconsideration, may send the application to the planning commission in accordance with the provisions set forth in this chapter or directly to the city council. Upon receipt of such application by the city council, it may refer the matter to the planning commission or may act upon it.

(4)

Nothing in this section shall be deemed to supersede the provisions of subsection 14-24(9) with regard to conditional zoning.

(Ord. No. Z15-15, 8-12-2015)

(1)

The sum of seven hundred fifty dollars ($750.00) plus one hundred dollars ($100.00) per acre or portion thereof payable to the City of Hampton shall accompany every application for change of zoning district boundaries filed with the planning director. Such fee shall be applied to the cost of collecting, reviewing, and reporting the facts and expenses related to the advertising and notification procedures required by law; such fee is non-refundable.

(2)

If an application is deferred by the applicant or due to applicant's failure to properly follow applicable procedures after it has been advertised for public hearing, an additional fee of three hundred dollars ($300.00) shall be paid by the applicant for re-advertising the application.

(3)

If an application involves a conditional rezoning, a check made payable to the clerk of the circuit court in the amount required by the clerk shall be submitted by the applicant with his application to cover the costs of recording the approved proffer agreement.