Kalispell City Zoning Code
CHAPTER 27
33 CONDITIONAL USE PERMITS
§ 27.33.010 General Provisions.
(1)
No structure, building or land shall be used, constructed, altered, moved or expanded where a Conditional Use Permit (as used in this section "Conditional Use Permit" includes both a full Conditional Use Permit and an Administrative Conditional Use Permit unless otherwise noted) is specifically required by the terms of these regulations until a Conditional Use Permit for such use has been issued.
(2)
Any use which was lawfully established prior to the adoption, extension or application of these regulations and which is now permitted by these regulations subject to a Conditional Use Permit, may continue in the same manner and to the same extent without securing a Conditional Use Permit.
(3)
All changes made to Chapter 27.33 by Ordinance No. 1948 shall apply only to Conditional Use Permits granted after January 15, 2026.
(Ord. 1677, 7-19-2010; Ord. 1948, 12-15-2025)
§ 27.33.020 Application.
(1)
Application for a Conditional Use Permit shall be made by the owner of the affected property on a form obtainable from the Zoning Administrator.
(2)
The completed application and associated fee shall be submitted to the Zoning Administrator. Said fee is not refundable.
(Ord. 1677, 7-19-2010)
§ 27.33.030 Processing of Application-Full Conditional Use Permit Only.
(1)
The Zoning Administrator shall:
(a)
Accept the completed application;
(b)
Circulate the application to City departments and other advisory agencies as deemed necessary for evaluation;
(c)
Set a public hearing date;
(d)
Publish a notice advertising the public hearing before the Planning Board at least once in a newspaper of general circulation in the community at least 15 calendar days prior to the meeting of the Planning Board at which the application is to be considered;
(e)
Mail written notice to all property owners within 150 feet of the subject property not less than 15 calendar days prior to the time of the Planning Board hearing (where the subject property abuts a public right-of-way, the 150 foot measurement shall be in addition to the right-of-way along the abutting side); and
(f)
Prepare a staff report which establishes the basis for a recommendation on the requested conditional use.
(2)
The Planning Board shall hold the public hearing.
(a)
Testimony should be specific in establishment of the level and degree of positive or negative impacts associated with the project.
(b)
Based on factual findings, the Planning Board shall make a recommendation to the City Council to approve, approve with conditions, or deny the application.
(3)
The City Council shall, based upon the record, approve, conditionally approve, or deny the Conditional Use Permit request.
(4)
The Zoning Administrator shall notify the applicant of the Council decision and forward a Conditional Use Permit with conditions, if any, or a letter of denial as appropriate.
(Ord. 1677, 7-19-2010)
§ 27.33.040 Administrative Conditional Use Permits.
(1)
Administrative uses fall into three categories:
(a)
Designated as ACUP in the zoning district standards or otherwise provided for in this Zoning Ordinance;
(b)
Up to 25% cumulative expansions of nonconforming uses (see Section 27.23.030); and
(c)
Up to 25% cumulative expansions of existing CUPs.
(2)
Application.
(a)
A completed application shall be submitted to the Zoning Administrator.
(b)
The application shall contain:
1.
A certified list of property owners within 150 feet (excluding adjacent rights-of-way);
2.
The fee as established by the City Council; and
3.
Other information as requested by the Zoning Administrator.
(3)
The Zoning Administrator shall:
(a)
Accept the completed application;
(b)
Mail written notice to all property owners within 150 feet of the subject property providing at least 15 days for formal comment (where the subject property abuts a public right-of-way, the 150 foot measurement shall be in addition to the right-of-way along the abutting side); and
(c)
Review the application pursuant to the review criteria contained in this chapter.
(4)
If no public comment is received, the Zoning Administrator shall approve, conditionally approve, or deny the application as appropriate.
(5)
If public comment is received, the Zoning Administrator shall contact the applicant.
(a)
If the comment can be satisfactorily resolved by additional information or appropriate conditions, the Zoning Administrator shall approve, conditionally approve, or deny the application as appropriate.
(b)
If the comment is of substance and cannot be mitigated, the Zoning Administrator shall schedule the Conditional Use Permit for the next available Planning Board public hearing and follow the procedures as outlined above for the processing of an application for a full CUP.
(6)
If the applicant wishes to appeal the Zoning Administrator's decision regarding the application, the application shall be forwarded to the Planning Board for consideration. Their recommendation shall be forwarded to the City Council for a determination as to whether the permit should be approved, conditionally approved, or denied. Any appeal by the applicant must be submitted in writing to the Zoning Administrator within 30 days from the date the permit was issued or denied. The applicant shall be responsible for paying a fee equal to the difference between an Administrative and a full Conditional Use Permit at the time the request for appeal is submitted. Any application forwarded to the Planning Board shall be processed as a full Conditional Use Permit, including, but not limited to, public notice as provided in Section 27.33.030.
(Ord. 1677, 7-19-2010; amd. Ord. 1771, 6-6-2016)
§ 27.33.045 Revocation.
(1)
If a conditional use for which a Conditional Use Permit has been granted is not in compliance with the requirements of the Conditional Use Permit, the City may revoke that Conditional Use Permit.
(2)
Prior to revocation, the City must send a written notice of revocation by certified mail to the property owner and the user of the property. The revocation notice must:
(a)
Identify which material misrepresentations the City believes the Conditional Use Permit holder made and/or which conditions the City believes the Conditional Use Permit holder has violated;
(b)
State that the property must be brought into compliance within 30 business days of the date of the notice of revocation; and
(c)
Set a hearing date for consideration of the revocation.
(3)
The City Council shall be the hearing body and follow its standard hearing procedures, including, but not limited to, hearing from the Conditional Use Permit holder, and any other witnesses through public comment. To revoke the conditional use permit, the City Council must make a finding that one or more of the criteria in Section 27.33.045, Subsection (4) has been established by a preponderance of the evidence. In the case of a revocation of a Conditional Use Permit, the determination of the City Council shall be final, unless recourse is sought in Flathead County District Court within 30 days.
(4)
The City Council may revoke, suspend, or reconsider a Conditional Use Permit if it determines that:
(a)
The information in the application or otherwise provided by the applicant or the applicant's agent as part of the original Conditional Use Permit approval was false or inaccurate, whether deliberate or unintentional, and that the misrepresentation was material to the City's decision to grant the Conditional Use Permit;
(b)
The development or use of the property is not in compliance with the application submitted as part of the original Conditional Use Permit approval; or
(c)
The development or use of the property is not in compliance with any condition or other requirement of the Conditional Use Permit.
(5)
As the granting of a Conditional Use Permit is a matter of grace per Section 27.33.090, resting in the discretion of the City and a refusal is not the denial of a right, conditional or otherwise, the revocation, suspension, or reconsideration of a Conditional Use Permit shall also be a matter of grace and not a denial of a right, conditional or otherwise.
(6)
A Conditional Use Permit revoked pursuant to this section may be reinstated at the City Council's discretion within one year upon a showing that all requirements of the Conditional Use Permit are being met and that any other deficiencies have been remedied. Should the requirements not be met and/or all deficiencies not be remedied within one year, a new application for Conditional Use Permit must be submitted for review.
(Ord. 1948, 12-15-2025)
§ 27.33.050 Violations.
Failure to comply with the terms and/or conditions of a Conditional Use Permit is a violation of the Zoning Ordinance in addition to a violation of any other applicable ordinance or policy.
(Ord. 1677, 7-19-2010)
§ 27.33.060 Termination and Transferability.
(1)
The Conditional Use Permit shall not run with the lot, building, structure, or use. When a new owner, lessee or other operator intends to continue a conditional use, the new user must submit an administrative renewal application to the Zoning Administrator verifying terms and conditions of the original grant of the Conditional Use Permit. If material changes related to the use of the property are proposed, the new user shall reapply for a new conditional use permit subject to this chapter.
(2)
The Conditional Use Permit shall terminate 18 months from date of authorization if commencement of the authorized activity has not begun:
(a)
Unless otherwise spelled out in the conditions of approval; or
(b)
Unless the applicant can demonstrate and maintain a continuous good faith effort (preparing financing, securing state or federal permits, undertaking engineering and design, etc.) in commencing the activity. An extension request must be submitted to the Zoning Administrator, who may grant up to two one-year extensions.
(Ord. 1677, 7-19-2010; Ord. 1948, 12-15-2025)
§ 27.33.070 Denial of Application.
(1)
In the event an application is denied by the City Council, no re-submittal of an application for a Conditional Use Permit may be made for one year from the date of said denial, unless sufficient new evidence or conditions are offered to the Zoning Administrator to demonstrate that circumstances have altered and that further consideration of the application is warranted. In such an event, the re-submittal application shall follow the same procedures as the original, and shall be treated as a new application.
(2)
Denial of an application for a Conditional Use Permit may be appealed to a court of competent jurisdiction within 30 days from the date of such a denial.
(Ord. 1677, 7-19-2010)
§ 27.33.080 Review Criteria.
(1)
No Conditional Use Permit shall be issued except upon a finding that the proposed use conforms to the requirements set forth in this chapter and that the proposed conditional use will have no more adverse effect on the health, safety, or comfort of persons living or working in the area and will be no more injurious, economically or otherwise, to property or improvements in the surrounding area than would any use generally permitted in the district. An authorized conditional use may not be denied arbitrarily or if no specific adverse effect is found.
(2)
A Conditional Use Permit may be granted only if the proposal, as submitted, conforms to all of the following general Conditional Use Permit criteria, as well as to all other applicable criteria that may be requested:
(a)
That the site is suitable for the use. This includes:
1.
Adequate usable space;
2.
Height, bulk and location of structures;
3.
Adequate access; and
4.
The absence of environmental constraints (floodplain, slope, etc.).
(b)
That the site plan for the proposed use will provide the most convenient and functional use for the lot. Consideration should include:
1.
Parking scheme;
2.
Loading areas;
3.
Exterior lighting;
4.
Traffic circulations;
5.
Open space;
6.
Fencing/screening;
7.
Landscaping; and
8.
Signage.
(c)
That the following services and facilities are available and adequate to serve the needs of the use as designed and proposed:
1.
Sewer;
2.
Water;
3.
Stormwater drainage;
4.
Garbage collection;
5.
Fire protection;
6.
Police protection;
7.
Streets;
8.
Sidewalks and bike trails; and
9.
Other public services.
(d)
That the proposed use will not be detrimental to abutting properties in particular and the neighborhood in general. Typical negative impacts which extend beyond the proposed site include:
1.
Excessive traffic generation;
2.
Noise or vibration;
3.
Dust, glare, heat;
4.
Smoke, fumes, gas, or odors; and
5.
Inappropriate hours of operation.
(e)
That the historical uses and established use patterns be weighed with recent change in trends in the neighborhood.
(f)
That the proposed use will not cause or contribute to a decline in property values of adjacent properties.
(Ord. 1677, 7-19-2010)
§ 27.33.090 Burden of Applicant.
The burden of proof for satisfying the aforementioned criteria considered for approval shall rest with the applicant and not the City Council. The granting of the Conditional Use Permit is a matter of grace, resting in the discretion of the City Council and a refusal, or revocation thereof, is not the denial of a right, conditional or otherwise. Should any information or representation submitted in connection with a Conditional Use Permit be incorrect or untrue, the approval based thereon may be rescinded, and other appropriate action taken.
(Ord. 1677, 7-19-2010; Ord. 1948, 12-15-2025)
§ 27.33.100 Decision Based on Findings.
Every decision of the City Council pertaining to the granting, denial or amendment of a request for a Conditional Use Permit, or the revocation of a Conditional Use Permit, shall be based upon "Findings of Fact," and every finding of fact shall be supported in the records of its proceedings.
(Ord. 1677, 7-19-2010; Ord. 1948, 12-15-2025)