The Administration and Procedures Provisions establish the methods for implementation of the Zoning Regulations. These provisions include procedures for reviewing specific uses within certain zoning districts; amending the Zoning Regulations; and granting variances.

(Ord. No. 6864, 3-12-2002 effective April 15, 2002)

A.

Purpose. The Site Plan Review Procedure provides for the administrative review in addition to plan review required by other sections of the Kearney Municipal Code of projects that have potentially significant effects on traffic circulation or a significant effect on land uses in adjacent neighborhoods. The procedure provides for review and evaluation of site development features and possible mitigation of unfavorable effects on surrounding property.

B.

Administration. The City Planner, or his/her designee shall review, evaluate, and act on all site plans submitted pursuant to this procedure. An applicant may appeal a denial of any application to the Planning Commission and City Council.

C.

Uses Requiring Site Plan Review. All uses indicated as subject to Site Plan Review in Table 59-1 are subject to the provisions of this section, unless otherwise subject to a Planned Development Review or a Conditional Use Permit procedure for specific zoning districts.

D.

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 City Planner. 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 (5) foot intervals.

(f)

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

E.

Administrative Action and Appeal. The City Planner, or his/her designee must act upon each complete application within ten (10) working days of filing. An applicant may appeal a denial to the Planning Commission and City Council within ten (10) days of the action.

F.

Review and Evaluation.

1.

The City Planner, or his/her designee, shall review and evaluate the site plan based on the criteria established in Table 59-1 and conformance with applicable regulations in these Zoning Regulations.

2.

The City Planner, or his/her designee, shall make the following findings before approval of the site plan:

(a)

The proposed development, together with any necessary modifications, is compatible with the criteria established in Table 59-1.

(b)

Any required modifications to the site plan are reasonable and are the minimum necessary to minimize potentially unfavorable effects.

(c)

The site plan conforms to the Zoning Regulations.

G.

Modification of Site Plan. The City Planner, or his/her designee, may require modification of a site plan as a prerequisite for approval. Required modifications may be more restrictive than base district regulations and may include, but not be limited to, additional landscaping or screening; installation of erosion control measures; improvement of access or circulation; rearrangement of structures on the site; or other modifications deemed necessary to protect the public health, safety, welfare, community character, property values, and/or aesthetics.

H.

Term and Modification of Approval.

1.

A Site Plan Approval shall become void two (2) 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 City Planner, 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 criteria set forth in Table 59-1.

3.

The City Planner, 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 to the Planning Commission and City Council.

I.

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

(Ord. No. 6864, 3-12-2002 effective April 15, 2002; Ord. No. 6964, 6-10-2003)

A.

Purpose. The Conditional Use Permit Procedure provides for public input and discretionary Planning Commission review and recommendation to the City Council for uses within zoning districts, which have unusual site development or operating characteristics that could adversely affect surrounding properties.

B.

Administration. The City Planner shall be responsible for the administration of the Conditional Use Permit Procedure. The Planning Commission shall review, evaluate, and submit a recommendation to the City Council for each application. The City Council shall then review, evaluate, and take action on the Conditional Use Permit application.

C.

Application Requirements. An application for a Conditional Use Permit may be filed with the City by the owner(s) of a property or the owners' authorized agent. The application shall include the following information:

1.

Name and address of the applicant.

2.

Owner, address and legal description of the property (shall be verified with a certified copy of the last deed or document of record from the appropriate County Register of Deeds Office).

3.

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

4.

Any graphic information, including site plans, elevations, other drawings, or other materials determined by the City Planner to be necessary to describe the proposed use to approving agencies.

5.

Filing fee as set forth in the City of Kearney Comprehensive Fee Schedule shall be paid.

D.

Approval Process.

1.

The Planning Commission, following proper notice, shall hold a public hearing on each Conditional Use Permit and, following such public hearing, shall make a recommendation to the City Council on the application.

2.

A failure to act on the part of the Planning Commission shall be considered a denial of the application.

3.

The City Council, following proper notice, shall hold a public hearing on the application and, following such public hearing and after consideration of the Planning Commission recommendation, shall act on the application.

E.

Criteria for Review.

1.

The Planning Commission and City Council shall review and approve the site plan based on the criteria established in Table 59-1 and conformance with applicable regulations in these Zoning Regulations.

F.

Scope of Approval.

1.

The City Council may, at their discretion, grant a Conditional Use Permit to a specific owner or applicant; however, the Planning Commission may recommend, and the City Council may establish special site development or operational regulations as a condition for approval of a Conditional Use Permit.

2.

At the discretion of the City Council and upon recommendation from the Planning Commission, a sunset clause may be determined as a condition for approval of a Conditional Use Permit. The Conditional Use Permit may be renewed by approval of the City Council upon expiration.

3.

Any changes or amendments to an approved Conditional Use Permit must be submitted in accordance with Section 59-103 for approval unless indicated otherwise within the Unified Land Development Ordinance.

4.

Conditional Use Permits may be transferred from the original applicant and/or property upon written consent to the City.

5.

The City Council shall not grant a Conditional Use Permit for any home occupation/home-based business, which is otherwise prohibited under Section 46-112.

G.

Lapse and Revocation of Permit.

1.

A Conditional Use Permit shall become void two (2) years after its effective date if the applicant has not carried out development or occupancy during that period.

2.

The City Council may, upon notice and hearing, revoke a Conditional Use Permit should the operation of the use subject to such permit violate the conditions under which the permit was granted.

H.

Previously Approved Conditional Use Permits.

1.

Any conditional or special use approved under regulations in effect before the effective date of these Regulations shall be considered to have a valid Conditional Use Permit, subject to requirements imposed at the time of its approval.

2.

Any use lawfully established before the effective date of this Ordinance and required by this Unified Land Development Ordinance to have a Conditional Use Permit within its respective zoning district shall be deemed to have such a valid Conditional Use Permit, provided that it complies with all other applicable provisions of this Ordinance.

(Ord. No. 6864, 3-12-2002 effective April 15, 2002; Ord. No. 6964, 6-10-2003; Ord. No. 7115, 9-14-2004; Ord. No. 7358, 6-12-2007 effective October 1, 2007; Ord. No. 8719, § 1, 1-14-2025)

TABLE 59-1:
CRITERIA FOR SITE PLAN REVIEW AND CONDITIONAL USE PERMITS

(Ord. No. 6864, 3-12-2002 effective April 15, 2002)

A.

Purpose. The Amendment Procedures describe the methods by which changes may be made in the text of the Zoning Regulations (text amendment) and/or the official boundaries of Zoning Districts (rezoning).

B.

Initiation of Amendments.

1.

Text amendments may be initiated by a citizen, the Planning Commission or City Council.

2.

A filing fee as set forth in the City of Kearney Comprehensive Fee Schedule shall be paid for an application for text amendment.

3.

Rezonings may be initiated by a property owner or authorized agent; the Planning Commission; or the City Council.

4.

A filing fee as set forth in the Comprehensive Fee Schedule shall be paid for an application for rezoning.

C.

Rezoning Application Requirements. An application for a rezoning may be filed with the City Planner, or his/her designee. The application shall include the following information:

1.

Name and address of the applicant.

2.

Owner, address and legal description of the property (shall be verified with a certified copy of the last deed or document of record from the appropriate County Register of Deed's Office).

3.

A description of the reason for the rezoning application and the nature and operating characteristics of the proposed use.

4.

Any graphic information, including site plans, elevations, other drawings, or other materials determined by the City Planner to be necessary to describe the proposed use to approving agencies.

5.

A filing fee as set forth in the City of Kearney Comprehensive Fee Schedule shall be paid.

D.

Amendment Process.

1.

The Planning Commission, following ten (10) days' notice and publication, shall hold a public hearing on each proposed text or rezoning and, following such public hearing, shall recommend action to the City Council. A vote either for or against an amendment by a majority of all Planning Commission members present shall constitute a recommendation to the City Council. A vote either for or against an amendment by less than a majority of all Planning Commission members present shall constitute a failure to make a recommendation to the City Council.

2.

The City Council, following ten (10) days' notice and publication, shall hold a public hearing, and shall act on the proposed amendment.

3.

Protest: If a valid protest petition opposing an amendment is filed with the City Clerk by eligible property owners, pursuant to Section 19-905 of the Nebraska Revised Statutes, such amendment shall not become effective except by the favorable vote of three-fourths (3/4) of all members of the City Council. A valid protest petition must meet the following criteria:

(a)

Submission of the petition in the office of the City Clerk within fourteen (14) days after the conclusion of the public hearing on the amendment by the Planning Commission.

(b)

Notarized signatures by at least one (1) of the following:

(1)

The owner or owners of at least twenty percent (20%) of the property proposed for rezoning.

(2)

The owners of twenty percent (20%) of the total area, excepting public rights-of-way and public property, within the zoning jurisdiction of the City and within three hundred (300) feet of the proposed rezoning.

E.

Required Notice and Publication. Prior to consideration of amending, supplementing, changing, modifying, or repealing these regulations by the governing body, notice of public hearings shall be provided by two (2) of the three (3) following methods, as determined by the City:

1.

Notice By Posted Sign: A notice shall be posted in a conspicuous place on or near the property upon which action is pending. Such notice shall be not less than eighteen (18) inches in height and twenty-four (24) inches in width with a yellow or white background and black letters not less than one and one-half (1½) inches in height. Such posted notice shall be so placed upon such premises that is easily visible from the street and shall be so posted at least ten (10) days before the date of such hearing. It shall be unlawful for any person to remove, mutilate, destroy or change such posted notice prior to such hearing.

2.

Publication: At least ten (10) days before the date of hearing, the City Clerk shall have published in a daily newspaper having a general circulation in the City of Kearney, a Notice of the time, place and subject matter of such hearing.

3.

Notification By Mail of School District: The Planning Clerk shall mail notice of the time, place and subject matter of any Planning Commission rezoning hearings to the School District Administrative Official and/or Chair of the Board of Education, within whose boundaries the subject site is located. The notification shall be submitted to the applicable official and/or Board of Education at least ten (10) days prior to the date of such meeting. Each school district to be affected by such rezoning proposal shall be notified.

(Ord. No. 6864, 3-12-2002 effective April 15, 2002; Ord. No. 7358, 6-12-2007 effective October 1, 2007)

Upon the automatic extension of the two (2) mile Extra-Territorial Jurisdiction due to annexation, the City Council with the recommendation of the Planning Commission shall zone properties within the newly established jurisdiction concurrent with adoption of the annexation ordinance. The zoning shall consider the Comprehensive Development Plan of the City of Kearney and the present use of the land.

(Ord. No. 6864, 3-12-2002 effective April 15, 2002)

State Law reference— Similar provisions, Neb. Rev. Stat. 16-901

A.

Administration and Enforcement. The Director of Public Works shall administer and enforce these regulations and may direct other persons to assist him/her.

If the Director of Public Works, or his/her designee shall find that any of the provisions of these regulations are being violated, he/she shall notify in writing the person responsible for such violations, indicating the nature of the violation and ordering the action necessary to correct it. He/she shall order discontinuance of illegal use of land, buildings, or structures; removal of illegal buildings or structures or of illegal additions, alterations, or structural changes; discontinuance of any illegal work being done; or shall take any other action authorized by these regulations to ensure compliance with or to prevent violation of its provisions.

B.

Building Permits Required. No building or other structure shall be erected, moved, added to, or structurally altered without a permit therefore, issued by the Building Official. No building permit shall be issued by the Building Official except in conformity with the provisions of these regulations, unless he/she receives a written order from the Board of Adjustments in the form of an administrative review, special exception, or variance as provided by these regulations.

C.

Application for Building Permit. All applications for building permits shall include plans if applicable in duplicate drawn to scale, showing the actual dimensions and shape of the lot to be built upon; the exact sizes and locations on the lot of buildings already existing, if any; and the location and dimensions of the proposed building or alteration.

The application shall include such other information as lawfully may be required by the Building Official, including existing or proposed building or alterations; existing or proposed uses of the building and land; the number of families, housekeeping units, or rental units the building is designed to accommodate; conditions existing on the lot; and such other matters as may be necessary to determine conformance with, and provide for the enforcement of these regulations. One (1) copy of the plans shall be returned to the applicant by the Building Official, after he/she shall have marked such copy either as approved or disapproved and attested to same by his signature on such copy. One (1) copy of the plans, similarly marked, shall be retained by the Building Official.

D.

Expiration of Building Permit.

1.

If the work described in any building permit has not begun within one hundred eighty (180) days from the date of issuance thereof, said permit shall expire; it shall be canceled by the Building Official; and written notice thereof shall be given to the persons affected.

2.

If the work described in any building permit has not been substantially completed within two (2) years of the date of issuance thereof, said permit shall expire and be canceled by the Building Official, and written notice thereof shall be given to the persons affected, together with notice that further work as described in the canceled permit shall not proceed unless and until a new building permit has been obtained.

3.

The expiration date of a building permit may be established for a period longer than two (2) years if established at the time that such permit is issued by the City. The Building Official, or his/her designee may, at his/her discretion extend the expiration period of the building permit.

E.

Construction and Use to be as Provided in Applications, Plans, Permits. Building permits issued on the basis of plans and applications approved by the Building Official authorize only the use, arrangement, and construction set forth in such approved plans and applications, and no other use, arrangement or construction. Use, arrangement, or construction at variance with that authorized shall be deemed violation of these regulations, and punishable as provided by Section 59-114.

(Ord. No. 6864, 3-12-2002 effective April 15, 2002)

Until all applicable fees, charges, and expenses have been paid in full, no action shall be taken on any application or appeal.

(Ord. No. 6864, 3-12-2002 effective April 15, 2002)

A.

Establishment.

1.

A Board of Adjustment is hereby established to provide relief in situations of hardship or to hear appeals. The Board shall consist of five (5) regular members, plus one (1) additional alternate member who shall attend and vote only when one (1) member is unable to attend for any reason.

2.

Each member shall be appointed by the Mayor with the approval of the City Council for a three (3) year term and is removable for cause by the appointing authority upon written charges and after public hearings. 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 Commission by such member shall also result in his/her immediate loss of membership on the Board of Adjustment and the appointment of another Planning Commissioner to the Board.

3.

The Board of Adjustment shall adopt rules and regulations in accordance with these regulations and the laws of the State of Nebraska pursuant to Sections 19-901 to 19-914 of the Nebraska Revised Statutes. Meetings shall be held at the call of the Chairperson and at such other times as the Board may determine. All meetings and records shall be open to the public. The Board shall keep minutes of its proceedings, showing the vote of each member upon each question, or, if absent or failing to vote, indicating such fact. The Board shall keep a record of its examinations and other official actions and shall be a public record. A majority of the Board shall constitute a quorum for the transaction of business.

4.

A filing fee as set forth in the City of Kearney Comprehensive Fee Schedule shall accompany each appeal to the Board of Adjustment.

B.

Procedure for Appeals.

1.

Appeals shall be made to the Board of Adjustment through the office of the Building Official in written form as determined by the Building Official. The Board shall fix a reasonable time for the hearing of the appeal and shall decide the appeal within thirty (30) days of the date of the public hearing. An appeal stays all proceedings in furtherance of the action, unless the Building Official certifies to the Board that by reason of the facts stated in the certificate, a stay would, in his/her opinion, cause imminent peril to life or property.

2.

The Board shall provide a minimum of ten (10) days' notice of a public hearing on any question before it. Notice of the hearing shall be posted in a conspicuous place on or near the property on which the application has been made; by publication in a newspaper of general circulation in the City of Kearney; and by written notice to the appealing party.

3.

Upon the public hearing, any party may appear in person or by agent or attorney. The concurring vote of four (4) out of five (5) members of such Board as so composed shall be necessary to reverse any order, requirement, decision or determination of any administrative official, or to decide in favor of the appellant on any matter upon which it is required to pass under any Unified Land Development Ordinance, or to effect any variation in such regulations.

(Ord. No. 6864, 3-12-2002 effective April 15, 2002; Ord. No. 7358, 6-12-2007 effective October 1, 2007)

State Law reference— Similar provisions, Neb. Rev. Stat. 19-905

The Board of Adjustment shall have only the following powers and duties:

A.

Administrative Review: To hear and decide appeals where it is alleged there is error in any order, requirement, decisions or determination made by the Building Official, or his/her designee in the enforcement of these regulations or any regulation relating to the location or soundness of structures

B.

Interpretation of Zoning Map: To hear and decide, in accordance with the provisions of any zoning regulation, requests for interpretation of any map.

C.

Variances to Relieve Hardships Relating to Property: To authorize, upon appeal, variances 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 zoning regulations; or by reason of exceptional topographic conditions or other extraordinary and exceptional situation or condition of such piece of property, such strict application would result in peculiar and exceptional practical difficulties to or exceptional and undue hardships upon the owner of such property.

1.

Requirements for Grant of a Variance. No such variance shall be authorized by the Board unless it finds that:

(a)

Strict application of the zoning regulations will produce undue hardship.

(b)

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

(c)

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.

(d)

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.

(e)

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 these Zoning Regulations.

(f)

The granting of the variance will not cause substantial detriment to the public good and will not substantially impair the intent and purpose of any ordinance or resolution.

2.

Findings by Board. The Board of Adjustment shall make findings that the requirements of Section 59-109C have been met by the applicant for a variance.

3.

Conditions for Grant of Variance.

(a)

In granting any variance, the Board of Adjustment may prescribe appropriate conditions and safeguards in conformity with these regulations. Violation of such conditions and safeguards, when made a part of the terms under which the variance is granted, shall be deemed a violation of these regulations and punishable under Section 59-114 of these regulations.

(b)

Under no circumstances shall the Board of Adjustment grant a variance to allow a use not permissible under the terms of these regulations in the district involved, or any use expressly or by implication prohibited by the terms of these regulations in said district.

(c)

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

D.

Board has Powers of Building Official on Appeals: Reversing Decisions of Building Official. In exercising the above mentioned powers, the Board of Adjustment may, so long as such action is in conformity with the terms of these regulations, reverse or affirm, wholly or partly, or may modify the order, requirement, decisions, or determination as ought to be made, and to that end shall have the powers of the Building Official from whom the appeal is taken.

The concurring vote of four (4) members of the Board shall be necessary to reverse any order, requirements, decision, or determination of the Building Official, or to decide in favor of the applicant on any matter upon which it is required to pass under these regulations, or to effect any variation in the application of these regulations.

(Ord. No. 6864, 3-12-2002 effective April 15, 2002)

State Law reference— Similar provisions, Neb. Rev. Stat. 19-910

Any person or persons, or any taxpayer, officer, department, board or bureau of the City aggrieved by any decision of the Board of Adjustment 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 Section 19-912 of the Nebraska Revised Statutes, and amendments thereto.

(Ord. No. 6864, 3-12-2002 effective April 15, 2002; Ord. No. 6964, 6-10-2003)

A.

It is the intent of these regulations that all questions of interpretation and enforcement shall be first presented to the Building Official, and that such questions shall be presented to the Board of Adjustment only on appeal from the decision of the Building Official, and that recourse from the decisions of Board of Adjustment shall be to the courts as provided by law.

B.

Under these regulations the City Council shall have only the duties of:

1.

Considering and adopting or rejecting proposed amendments, or the repeal of these regulations as provided by law.

2.

Establishing a schedule of fees and charges as stated in Section 59-108.

3.

Directing a city officer to appeal a decision of the Board of Adjustment.

(Ord. No. 6864, 3-12-2002 effective April 15, 2002)

Should any section or provision of this ordinance be declared by the courts to be unconstitutional or invalid, such decision shall not affect the validity of the ordinance as a whole, or any part thereof other than the part or provision so declared to be unconstitutional or invalid.

(Ord. No. 6864, 3-12-2002 effective April 15, 2002)

Whenever a violation of this ordinance occurs, or is allowed to have occurred, any person may file a written complaint. Such complaints stating fully the causes and basis thereof shall be filed with the Building Official. He/she shall record properly such complaint immediately, investigate, and take action thereon as provided by this ordinance.

(Ord. No. 6864, 3-12-2002 effective April 15, 2002)

A.

Any person, firm, or corporation violating any provision of the Unified Land Development Ordinance, being a part of the Code of the City of Kearney, Nebraska, shall be deemed guilty of a misdemeanor, and on conviction thereof, shall be fined in an amount not exceeding One Hundred Dollars ($100.00) for any one offense, recoverable with costs, or by imprisonment in the county jail for a term not to exceed thirty (30) days. Each day such violation continues after notice of violation is given to the offender may be considered a separate offense.

B.

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 herein provided.

C.

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

(Ord. No. 6864, 3-12-2002 effective April 15, 2002; Ord. No. 6964, 6-10-2003)