The city offices and bodies listed herein, without limitation upon such authority as each may possess by law, have responsibility for implementing and administrating this article in the manner so described.

(Code 2015, § 10.91(1))

The following city offices and bodies have responsibility for implementing and administering this article:

(1)

Zoning administrator.

(2)

Board of adjustments and appeals.

(3)

Planning agency.

(4)

City council.

(Code 2015, § 10.91(2))

The position of zoning administrator shall have the following responsibilities:

(1)

Administer this article and maintain permanent and current records of all associated maps, amendments, conditional uses, variances, and appeals.

(2)

Maintain a record of all conditional use and variance applications, all nonconforming uses, and all notices of violation, discontinuance, or removal in order to ensure compliance with the provisions of this article and, on request, provide such information for public inspection.

(3)

Forward any application for appeal of any administrative order or final decision made in the administration of this article, to the board of adjustments and appeals.

(4)

Receive and process any application for an amendment, conditional use, and planned development, and forward it to the planning agency for its recommendation to the city council.

(5)

Receive and process any application for a variance and forward it to the board of adjustments and appeals.

(6)

Make a determination of compliance with this article on all applications for a building permit and a certificate of occupancy.

(7)

Authorize minor adjustments to approved development site plans.

(8)

Render interpretations of the provisions of this article.

(9)

Enforce this article (the zoning code).

(Code 2015, § 10.91(3))

The board of adjustments and appeals shall have the following responsibilities:

(1)

Hear and decide applications for appeal of any administrative order or final decision made in the administration of this article.

(2)

Approve, approve with conditions, or deny variance requests.

(3)

Maintain a record of its proceedings, including the minutes of the meetings, its findings, and the action taken on each matter heard by it. The record shall be maintained in the city clerk's office.

(4)

The board of adjustments and appeals shall have any such other powers given to it by state law.

(Code 2015, § 10.91(4))

The planning agency shall have the following responsibilities:

(1)

Hear and make recommendations to the city council regarding all applications for a conditional use permit and amendments to conditional use permits.

(2)

Hear and make recommendations to the city council regarding all applications for a planned unit development.

(3)

Hear and make recommendations to the city council regarding all applications for an amendment to this article.

(4)

Review, hold public hearings, and prepare recommendations on any proposed change to the city's comprehensive planning policies and plans, including this article.

(5)

Review this article from time to time and make recommendations to the city council for such changes to this article as the planning agency may deem appropriate.

(6)

Hear and make recommendations on any other matter referred to it by the city council.

(Code 2015, § 10.91(5))

The city council shall have the following responsibilities:

(1)

Approve, approve with conditions, or deny any application for a planned unit development.

(2)

Approve, approve with conditions, or deny any application for a conditional use permit.

(3)

Approve or deny any application for an amendment to this article.

(4)

Take such other actions not delegated to other bodies that may be desirable and necessary to implement the provisions of this article.

(Code 2015, § 10.91(6))

The city council, in accordance with the procedures and standards set out in this section, may grant conditional use permits authorizing the development of uses listed as conditional uses in the regulations applicable to the district in which the specific property is located. The city council also reserves the right to review, modify, or terminate the approval of any conditional use permit.

(Code 2015, § 10.92(1))

The principal objective of this article is to provide for an orderly arrangement of compatible building and land uses, and for the proper locations of all types of uses required by the city. To accomplish this objective, each type and kind of use is classified as permitted in one or more of the various districts established by this article. However, in addition to those uses specifically classified and permitted in each district, there are certain additional uses which may be allowed because of their unusual characteristics or the service they provide the public. These conditional uses require particular considerations as to their proper location in relation to adjacent established or intended use and the planned development of the community; therefore, each application will be reviewed on a case-by-case basis and will be subject to a public hearing process.

(Code 2015, § 10.92(2))

An application for a conditional use permit may be made by any governmental office, department, board or commission, or by any person having a contractual interest in the subject property.

(Code 2015, § 10.92(3))

The following procedures shall govern application for conditional use permits:

(1)

Application. An application for a conditional use permit shall be filed with the zoning administrator on the form provided and shall contain at least the following information:

a.

The applicant's name, address, and proof of interest in the property.

b.

The owner's name and address, if different than the applicant, and the owner's signed consent to the filing of the application.

c.

The names and addresses of all professional consultants advising the applicant with respect to the proposed development.

d.

The street address and legal description of the property.

e.

The zoning classification and present use of the subject property.

f.

A general description of the proposed conditional use.

g.

A statement indicating whether the applicant will require a variance in connection with the proposed conditional use.

h.

A site plan conforming to the requirements of article X, division 10, of this chapter.

i.

Such other information or documentation as the zoning administrator may deem to be necessary or appropriate for a full and proper consideration and disposition of the application.

(2)

Action of zoning administrator. Upon receipt of a properly completed application for a conditional use and accompanying site plan, the zoning administrator shall forthwith transmit to the planning agency, the application together with all other documents made part thereof.

(3)

Public hearing. Upon receipt of a properly completed application for a conditional use, the planning agency shall set a date for a public hearing.

(4)

Notice. Notice of the public hearing shall be given by the planning agency by one publication in one or more newspapers of general circulation. Notice shall be published a minimum of ten days prior to the hearing date and a maximum of 30 days to the hearing. Notice shall also be given by first class mail to all owners of property within 300 feet from the proposed location of the conditional use. The notice shall describe the particular conditional use and shall contain a brief description thereof. County assessment records and street addresses shall be deemed sufficient for the location or certification of ownership for notification purposes.

(5)

Action of the planning agency. Upon the conclusion of the public hearing, the planning agency shall transmit its recommendation to the city council. The planning agency shall either recommend the granting of the conditional use permit, granting the conditional use permit subject to conditions, or denying the conditional use. The failure of the planning agency to act within 60 days of receipt of the application shall be deemed a recommendation for the approval of the conditional use permit, unless the planning commission tabled the request. When a request is tabled by the planning commission, the request shall not be forwarded to the council until a recommendation to approve, approve with conditions, or deny has been adopted.

(6)

Action of the city council. After receipt of the planning agency's recommendation or its failure to act within 60 days, the city council shall either deny the conditional use permit, or grant the conditional use permit with or without conditions.

(Code 2015, § 10.92(4))

The planning agency shall only recommend the granting of the conditional use permit, granting the conditional use permit subject to conditions, or denying the conditional use based on written findings of fact with regard to each of the standards set forth below and, where applicable, any special standards for specific uses set forth in the provisions of a specific zoning district.

(1)

It is one of the conditional uses listed in the particular district.

(2)

It is in keeping with the comprehensive planning policies of the city and this article as amended from time to time.

(3)

It does not interfere with or diminish the use of property in the immediate vicinity.

(4)

It can be adequately served by public facilities and services.

(5)

It does not cause undue traffic congestion.

(6)

It preserves significant historical and architectural resources.

(7)

It preserves significant natural and environmental features.

(8)

It will not cause a negative cumulative effect, when considered in conjunction with the cumulative effect of various special uses of all types on the immediate neighborhood, and the effect of the proposed type of conditional use upon the city as a whole.

(9)

It complies with all other applicable regulations of the district in which it is located and other applicable ordinances, except to the extent such regulations have been modified through the planned development process or the granting of a variance.

(10)

It will not jeopardize the public's health, safety, or general welfare.

(Code 2015, § 10.92(5))

Whenever the applicant indicates that a variance will be necessary in connection with the proposed conditional use (other than a planned development), the applicant shall at the time of filing for a conditional use, file an application for a variance with the board of adjustments and appeals. The board of adjustments and appeals shall not take any action on the application for a variance until the planning agency shall first act to recommend the granting of the conditional use permit, granting the conditional use permit subject to conditions, or denying the conditional use.

(Code 2015, § 10.92(6))

(a)

The city council, upon recommendation of the planning agency, may impose such conditions and limitations concerning the use, construction, character, location, landscaping, screening, parking and other matters relating to the purpose and objectives of this article upon the premises benefited by a conditional use. In addition, the city council may require a performance guarantee to be submitted to the city in order to ensure compliance with the terms of approval.

(b)

The conditions and limitations of approval may be more restrictive than standards outlined in this article, but shall not be less restrictive. Such conditions and limitations may be necessary or appropriate to prevent or minimize adverse effects upon other property and improvements in the vicinity of the proposed property or on public facilities. Such conditions shall be expressly set forth in the resolution granting the conditional use permit. Violation of any such condition or limitation shall be a violation of this article and shall constitute grounds for revocation of the conditional use permit pursuant to division 7 of this article.

(Code 2015, § 10.92(7))

The listing of a conditional use within each zoning district does not constitute an assurance or presumption that such conditional use will be approved. Rather, each proposed conditional use shall be evaluated on an individual basis in order to determine whether approval of the special use is appropriate at the particular location and in the particular manner proposed.

(Code 2015, § 10.92(8))

The approval of a proposed conditional use by the city council shall not authorize the development, construction, reconstruction, alteration or moving of any building or structure, but shall merely authorize the preparation, filing and processing of applications for such permits or approvals as may be required by the regulation of the city, including, but not limited to, a building permit and a certificate of occupancy.

(Code 2015, § 10.92(9))

Subject to an extension of time granted by the city council, no conditional use permit shall be valid for a period longer than 12 months, unless a building permit is issued, or unless a certificate of occupancy is issued and the conditional use commenced within that period of time. Except when otherwise provided in the resolution approving a conditional use, a conditional use shall be deemed to relate to, and be for the benefit of, the use and lot in question, rather than the owner or operator of such lot.

(Code 2015, § 10.92(10))

An applicant for a conditional use permit shall pay a nonrefundable filing fee in connection with the submittal of the application in accordance with a fee schedule as established, from time to time, by the city council.

(Code 2015, § 10.92(11))

The city council may, in accordance with the procedures and standards set forth in this section, and other standards and regulations applicable to the district in which the subject property is located, approve by ordinance, planned unit developments for uses as listed within each zoning district.

(Code 2015, § 10.93(1))

A planned unit development is intended to encourage the efficient use of land and resources, to promote greater efficiency in public and utility services, and to encourage innovation in the planning and building of all types of development. A planned unit development may be approved by the city council following a review and recommendation by the planning agency.

(Code 2015, § 10.93(2))

The public benefits to the surrounding neighborhood and the city as a whole that are intended to be derived from the approval of a planned unit development include, but are not limited to:

(1)

Preservation and enhancement of desirable site characteristics and open space.

(2)

A pattern of development which preserves natural vegetation, topographic and geologic features.

(3)

Preservation and enhancement of historic and natural resources that significantly contribute to the character of the city.

(4)

Use of design, landscape, or architectural features to create a pleasing environment or other special development features.

(5)

Provision of a variety or housing types in accordance with the city's housing goals.

(6)

Elimination of blighted structures or incompatible uses through redevelopment or rehabilitation.

(7)

Business and commercial development to enhance the local economy and strengthen the tax base.

(8)

The efficient use of land resulting in more economic networks of utilities, streets, schools, public grounds, buildings, and other facilities.

(Code 2015, § 10.93(3))

The following general provisions shall govern the review, approval, and establishment of planned unit developments:

(1)

Control of the planned development. A planned unit development may be established for any parcel or tract of land under single ownership or control. The property included in the planned unit development shall be planned and developed or redeveloped as a single unit and in a manner consistent with the intent and purpose for which a planned unit development may be permitted.

(2)

Uses allowed. All permitted and conditional uses listed in a specific district are allowed as planned unit developments. Where residential units are provided as part of a planned unit development, regardless of the specific district, they may be of one-family attached, one-family detached, townhouse, or clustered or multiple-family type construction. Mixed use planned unit developments are permitted and encouraged provided they meet the intent and purpose for which a planned unit development is permitted. Uses not listed as permitted or conditional in a specific district shall not be allowed in a planned unit development unless it is found that the use is complementary to the functionality of the development and the other uses found therein.

(3)

Authority to modify regulations. The city council shall have the authority in approving any planned unit development to change, alter, modify, or waive any provision of this article or the subdivision regulations as they apply to the proposed planned unit development. No such change, alteration, modification or waiver shall be approved unless the city council shall find that the proposed planned unit development:

a.

Will achieve the purpose for which a planned unit development may be approved pursuant to this section.

b.

Will not violate the general purpose, goals, and objectives of this article and of any plans adopted by the planning agency or the city council.

(4)

Limitations. No change, alteration, modification or waiver authorized by this section shall authorize a change in uses allowed in any district or a modification with respect to any standard established by this section, or a modification with respect to any standard in a zoning district made specifically applicable to a planned unit development, unless the regulation expressly authorizes such a change, alteration, modification or waiver.

(Code 2015, § 10.93(4))

(a)

The number of principal use structures which may be constructed within the planned unit development shall be determined by dividing the net acreage of the project acreage by the required lot area per unit that is required in the district in which the planned unit development is located. The net acreage shall be defined as the project area less the land area dedicated for public streets or other public purposes. The project area includes all the land within the planned unit development that is allocated for residential, institutional, commercial, or industrial uses, and for common open space as required.

(b)

The development plan shall contain such proposed covenants, easements, and other provisions relating to the bulk, location, and density of permitted structures, accessory structures, and public facilities as may be necessary for the welfare of the planned unit development and the city.

(c)

The common open space, and other common properties, individual properties, and all other elements of the planned unit development shall be so planned that they achieve a unified scheme of integrated planning and a harmonious selection and efficient distribution of uses.

(d)

Common open space within a planned unit development must be used for amenity or recreational purposes. Motor vehicle parking areas and traffic corridors shall not be considered an approved use of common open space. The uses authorized for the common open space must be approved to the scale and character of the planned unit development, and consider the planned unit development's size, density, topography, and number and type of structures to be provided.

(e)

Common open space must be suitably improved for its intended use. Common open space containing natural features worthy of preservation may be left unimproved. The development plan must coordinate the improvement of the common open space and the construction of the permitted structures within the planned unit development.

(f)

Adequate access shall be provided for fire and emergency vehicles.

(Code 2015, § 10.93(5))

A planned unit development proposed for any parcel or tract of land under single ownership or control shall have a minimum net site area for each zoning district as set forth below.

(Code 2015, § 10.93(6))

An application for a planned unit development shall be processed in accordance with the following procedures:

(1)

Preapplication conference. Prior to submitting a formal application for a planned unit development, an applicant shall participate in a preapplication conference with the planning director and zoning administrator. Representatives of other city departments and decision-making bodies may also be present where appropriate. The purpose of the preapplication conference is to enable the applicant to present the concept of the proposed planned unit development and to discuss the procedures and standards for planned unit development approval. The conference is intended to facilitate the filing and consideration of a formal planned unit development application. No representations made by any representatives of the city's departments or decision-making bodies during the preapplication conference shall be binding upon the city with respect to a formal application subsequently submitted.

(2)

Information needed for the preapplication conference. The applicant shall provide the following information at the time of the scheduling of the preapplication conference:

a.

Concept site plan.

b.

Narrative summary of the proposal.

c.

Description of the land uses and neighboring characteristics.

(3)

Formal application-development plan. Formal applications for a planned unit development shall be filed with the zoning administrator on a form provided and accompanied by such number of copies as so indicated. Upon receipt of a properly completed formal application for a planned unit development, the zoning administrator shall forthwith transmit to the planning agency the application together with all papers and plans attached thereto. All formal applications for a planned unit development shall include at least the following information:

a.

General information.

1.

The applicant's name, address, telephone number, and interest in the property.

2.

The owner's name, address, and telephone number, if different than the applicant, and the owner's signed consent to the filing of the application.

3.

The street address and legal description of the property.

4.

The zoning classification, zoning district boundaries, and present use of the property.

5.

The proposed title of the project and the names, addresses, and telephone numbers of the architect, landscape architect, planner or engineer on the project.

b.

Preliminary development site plan. A development site plan shall be drawn at a scale of 20 feet to one inch and shall contain at least the following, unless determined not applicable by the zoning administrator:

1.

The location, dimensions, and total area of the site.

2.

The location, dimensions, floor area, type of construction, and use of each proposed building or structure and setbacks from property lines.

3.

The number, the size, and type of dwelling units in each building, and the overall dwelling unit density.

4.

The proposed treatment of open spaces and the exterior surfaces of all structures, with sketches of proposed landscaping and structures, including typical elevations.

5.

Architectural graphics, including typical floor plans and elevations, profiles, and cross sections.

6.

The number, location, and dimensions of parking spaces and loading docks, with means of ingress and egress.

7.

The proposed traffic circulation pattern within the area of the development, including the location and description of public improvements to be installed, including any streets and access easements.

8.

A vehicular traffic analysis.

9.

The location of all fire hydrants on the property and the location of all fire hydrants within 150 feet of the property.

10.

The location and dimensions of all accesses for fire and emergency vehicles.

11.

Statement of whether or not the building will be sprinkled and fire flow availability for the sprinkler system and fire hydrants.

12.

The location and intensity of safety and security lighting.

13.

The location and purpose of any existing or proposed dedication or easement.

14.

The general drainage plan for the development tract.

15.

The location and dimensions of adjacent properties, abutting public rights-of-way and easements, and utilities serving the site.

16.

Significant topographical or physical features of the site, including existing trees.

17.

Wetland delineation showing all wetlands present on the site.

18.

The location and proposed treatment of any historical structure or other historical design element or feature.

c.

Preliminary plat of survey. A preliminary plat of the property shall be submitted in conformance with article XII of this chapter. The layout of the plat shall conform to the development plan.

d.

Additional information. The application shall also contain the following information and be accompanied by the following submissions, as well as such additional information, drawings, plans or documentation as may be requested by the zoning administrator or the planning agency, if determined necessary or appropriate for a full and proper consideration and disposition of the application:

1.

A certificate of disclosure of ownership interest.

2.

When the proposed planned unit development includes provisions for common open space or recreational facilities, a statement describing the provision that is to be made for the care and maintenance of such open space or recreational facilities. If it is proposed that such open space be owned or maintained by an entity other than a government authority, copies of the proposed articles of incorporation and bylaws of such entity shall be submitted.

3.

Copies of any restrictive covenants that are to be recorded with respect to property in the proposed planned unit development.

4.

When the planned unit development is to be constructed in stages, a schedule for the development of such stages shall be submitted stating the approximate beginning and completion time for each stage. When the development provides for common open space, the total area of common open space provided at any stage of development shall, at a minimum, bear the same relationship to the total open space to be provided in the entire development as the stages completed or under development bear to the entire development.

5.

A statement showing the relationship of the proposed planned unit development to any adopted general plan of the city.

6.

A statement showing why the proposed planned unit development is compatible with other property in the neighborhood.

(4)

Review procedure.

a.

Action of zoning administrator. Upon review of the formal application, including the development site plan, the zoning administrator shall determine if the application is complete. If the application is determined not to be complete, the zoning administrator shall not transmit the application to the planning agency, but shall notify the applicant of any deficiencies or modifications necessary to perfect the application.

b.

Public hearing. Upon receipt of a properly completed application for a planned unit development, the planning agency shall set a date for a public hearing.

c.

Notice. Notice of the public hearing shall be given by the planning agency by one publication in one or more newspapers of general circulation. Notice shall be published a minimum of ten days prior to the hearing date and a maximum of 30 days prior to the hearing. Notice shall also be given by first class mail to all owners of property within 300 feet from the proposed location of the conditional use. The notice shall describe the particular planned unit development and shall contain a brief description thereof.

d.

Action of the planning agency. Upon the conclusion of the public hearing, the planning agency shall transmit its recommendation to the city council. The planning agency shall either recommend the granting of the planned unit development, granting the planned unit development subject to modifications, or denying the planned unit development.

e.

Action of the city council. After receipt of the planning agency's recommendation, the city council shall either deny the planned unit development, or grant the planned unit development with or without modifications and conditions.

(Code 2015, § 10.93(7))

(a)

The planning agency shall not recommend approval of, nor shall the city council approve, a planned unit development unless each shall first make written findings of fact that the planned unit development satisfies the intent of this article or does not jeopardize the public health, safety, or welfare.

(b)

The development of the planned unit development shall conform to the approved development plan; including all proposed covenants, easements, conditions of approval, and other provisions relating to the bulk, location, and density of permitted structures, accessory structures, parking, and other public facilities.

(c)

All land shown on the approved development plan as common open space must be conveyed to trustees provided in the indenture establishing the association or similar organization for the maintenance of the planned unit development.

(d)

No common open space may be put to any use not specified in the approved development plan.

(Code 2015, § 10.93(8))

No planned unit development approval shall be valid for a period longer than one year unless a building permit is issued. However, upon written request of the applicant, the one-year period may be extended by the planning agency for such time as it shall be determined and for good cause shown, without further hearing.

(Code 2015, § 10.93(9))

The approval of a proposed planned unit development by the city council shall not authorize the development, construction, reconstruction, alteration or moving of any building or structure, but shall merely authorize the preparation, filing, and processing of applications for such permits or approvals as may be required by the regulation of the city, including, but not limited to, a subdivider's agreement as required in article XII of this chapter, building permit, and a certificate of occupancy.

(Code 2015, § 10.93(10))

Following approval of the planned unit development, the development site plan, including any modifications thereof, shall constitute the use, parking, loading, sign, bulk, space, and yard regulations applicable to the property, and no use, building or development, other than home occupations and temporary uses not allowed by the development site plan, shall be permitted within the area of the planned unit development.

(Code 2015, § 10.93(11))

Adjustments to the development site plan shall be in accordance with the requirements set forth in this section.

(1)

New application required. No alteration or amendment shall be made in the construction, development, or use without a new application under the provisions of this section. However, minor alterations may be made subject to written approval of the zoning administrator.

(2)

Minor adjustments.

a.

During build-out of the planned unit development, the zoning administrator may authorize minor adjustments to approved development site plans when such adjustments appear necessary in light of technical or engineering considerations. Such minor adjustments shall be limited to the following elements:

1.

Adjusting the distance as shown on the approved development site plan between any one structure or group of structures, and any other structure or group of structures, or any vehicle circulation element or any boundary of the site.

2.

Adjusting the location of any open space.

3.

Adjusting any final grade.

4.

Altering the types of landscaping elements and their arrangement within the required landscaping buffer area.

b.

Such minor adjustments shall be consistent with the intent and purpose of the ordinance and development plans approved pursuant to this section and shall be the minimum necessary to overcome the particular difficulty and shall not be approved if such adjustments would result in a violation of any standard or requirement of this article.

(3)

Major adjustments. Any adjustments to the development site plan not authorized as a minor adjustment shall be considered a major adjustment and shall require a new application under the provisions of this section.

(Code 2015, § 10.93(12))

All applications for a planned unit development shall be accompanied by a nonrefundable filing fee in accordance with section 10-1889 and as provided in the city fee schedule.

(Code 2015, § 10.93(13))

In accordance with the procedures and standards set forth in this section, the board of adjustments and appeals shall have the authority to grant variances from the provisions of this article in instances where their strict enforcement would cause undue hardship because of circumstances unique to the individual property.

(Code 2015, § 10.94(1))

The variance procedure is intended to provide a narrowly circumscribed means by which relief may be granted from unforeseen particular applications of this article that create practical difficulties or particular hardships.

(Code 2015, § 10.94(2))

Applications for variances may be filed by the owner of, or any person having contractual interest in, the property.

(Code 2015, § 10.94(3))

An application for a variance shall be processed in accordance with the following procedures:

(1)

Application. An application for a variance shall be filed with the zoning administrator and shall include, at least, the following information:

a.

The applicant's name, address, and proof of interest in the property.

b.

The owner's name and address, if different than the applicant, and the owner's signed consent to the filing of the application.

c.

The names and addresses of all professional consultants advising the applicant with respect to the proposed development.

d.

The street address and legal description of the property.

e.

The present use of the subject property.

f.

A site plan showing existing lot lines and dimensions as well as lot area, all easements, all public streets and private rights-of-way bordering and adjacent to the site, the use and location of all adjacent property.

g.

The specific feature or features of the proposed use, construction, or development that require a variance.

h.

The specific provisions of this article from which a variance is sought and the precise variance therefrom being sought.

i.

Statement of the characteristics of the property that prevent compliance with the provisions of this article.

(2)

Action of zoning administrator. Upon receipt of a properly completed application for an appeal, the zoning administrator shall forthwith transmit to the board of adjustments and appeals the application together with all papers and plans attached thereto.

(3)

Public hearing. Upon receipt of a properly completed application for a variance, the board of adjustments and appeals shall set a date for a public hearing.

(4)

Notice. Notice of the public hearing shall be given by the zoning administrator by one publication in one or more newspapers of general circulation. Notice shall be published a minimum of ten days prior to the hearing date and a maximum of 30 days to the hearing. Notice shall also be given by first class mail to all owners of property within 200 feet from the proposed location of the variance. The notice shall describe the particular variance and shall contain a brief description thereof. County assessment records and street addresses shall be deemed sufficient for the location or certification of ownership for notification purposes.

(5)

Board of adjustments and appeals action. The board of adjustments and appeals shall render its decision in accordance with the board's adopted rules of procedures. The board of appeals may grant the variance, grant the variance subject to conditions, or deny the variance.

(Code 2015, § 10.94(4))

In considering an application for a variance, the board of adjustments and appeals may approve such variance only upon the finding that the application complies with the standards set forth below.

(1)

General standard. No variance shall be granted unless the applicant shall establish that conforming to the strict letter of the provisions of this article would create a unique and particular hardship.

(2)

Unique and particular hardship. Unique and particular hardship is defined as the property is exceptional as compared to other property subject to the same provisions by reason of a unique physical condition, including the presence of an existing use or structure, whether conforming or nonconforming; irregular or substandard shape or size; exceptional topographical features; or other extraordinary physical conditions peculiar to and inherent in the subject lot. The hardship shall amount to more than a mere inconvenience to the owner and the hardship shall relate to the physical situation of the lot rather than the personal situation of the current owner of the lot.

(3)

Not self-created. The unique physical condition and hardship shall not be the result of any action or inaction of the property owner or its predecessors in title. The unique physical condition shall have existed at the time of the enactment of the provisions from which a variance is sought or was created by natural forces or was the result of governmental action, other than the adoption of the ordinance from which this chapter is derived.

(4)

Denied substantial rights. The carrying out of the strict letter of the provision from which a variance is sought would deprive the owner of the subject lot of substantial rights commonly enjoyed by owners of other property subject to the same provisions.

(5)

Not merely special privilege. The alleged hardship shall not include the inability of the owner or occupant to enjoy some special privilege or additional right not available to owners or occupants of other lots subject to the same provision. The alleged hardship shall not include the inability of the property owner to realize a greater profit than if the variance were not granted.

(6)

No other remedy. There are no means other than the requested variance by which the alleged hardship can be avoided or remedied to a degree sufficient to permit a reasonable use of the lot.

(7)

Variance less than requested. A variance less than or different from that requested may be granted when the record supports the applicant's right to some relief but not to the relief requested.

(8)

Essential character of the area. The variance would not result in a development on the lot that:

a.

Would be materially detrimental to the public welfare or materially injurious to the enjoyment, use, development, or value of property or improvements permitted in the vicinity.

b.

Would materially impair an adequate supply of light and air to the properties and improvements in the vicinity.

c.

Would substantially increase congestion in the public streets due to traffic or parking.

d.

Would unduly increase the danger of flood or fire.

e.

Would unduly tax public utilities and facilities in the area.

f.

Would endanger the public health or safety.

g.

Would not be in harmony with the general and specific purposes of this article and the comprehensive planning policies and objectives of the city.

(Code 2015, § 10.94(5))

The board of adjustments and appeals may impose specific conditions and limitations upon the granting of a variance as are necessary to achieve the purpose and objectives of this article. Such conditions and limitations may include, but are not limited to, those concerning the use, construction, character, location, landscaping, screening, parking, and other matters relating to the purpose and objectives of this article and shall be expressly set forth in the resolution granting the variance. Violation of any such condition or limitation shall be a violation of this article and shall constitute grounds for revocation of the variance pursuant to article X, division 10, of this chapter.

(Code 2015, § 10.94(6))

The approval of a proposed variance by the board of adjustments and appeals shall not authorize the development, construction, reconstruction, alteration, or moving of any building or structure, but shall merely authorize the preparation, filing and processing of applications for such permits or approvals as may be required by the regulation of the city, including, but not limited to, a building permit and a certificate of occupancy.

(Code 2015, § 10.94(7))

Subject to an extension of time granted by the board of adjustments and appeals, no variance shall be valid for a period longer than 12 months unless a building permit is issued, or unless a certificate of occupancy is issued and a use commenced within that period of time. Except when otherwise provided in the resolution approving a variance, a variance shall be deemed to relate to, and be for the benefit of, the lot in question, rather than the owner of such lot.

(Code 2015, § 10.94(8); Ord. of 2-9-2004)

Notwithstanding any other provision in this section, no variance shall be granted to establish a use not permitted in the zoning district where the property subject to the application is located.

(Code 2015, § 10.94(9))

An applicant for a variance shall pay a nonrefundable filing fee in connection with the submittal of the application in accordance with a fee schedule as established, from time to time, by the city council.

(Code 2015, § 10.94(10))

The zoning administrator shall have the authority to review applications for certificates of occupancy and building permits in order to determine compliance with this article.

(Code 2015, § 10.95(1))

For the purposes of this article, the certificate of occupancy, in part, provides a procedure for the inspection of completed premises to ensure their compliance with this article and approved plans prior to commencement of the use or occupancy of such premises. The certificate also serves as evidence of compliance with other provisions of other codes or ordinances of the city. For the purposes of this article, the building permit authorizes the development on a lot in conformance with applicable sections of this Code and special approval conditions.

(Code 2015, § 10.95(2))

Unless a certificate of occupancy shall have first been obtained certifying compliance with the provisions of this article, no structure, or addition thereto, constructed, remodeled, altered, or moved shall be used for any purpose, and no vacant land shall be used or occupied for any purpose. Except for changes involving substitution of occupants in existing dwelling units, no use or occupancy of any land or structure shall be changed to any other use or occupancy without first obtaining a certificate of occupancy.

(Code 2015, § 10.95(3))

The following procedures shall govern application for certificates of occupancy and building permits:

(1)

Application. Applications for a certificate of occupancy and building permits shall be made to the building official. For the purpose of this article, applications for a building permit shall include a site plan which conforms with the requirements of section 10-1812.

(2)

Action on application. Within ten days after the receipt of a completed application, the building official shall forward the application to the zoning administrator who shall review the application and inspect the subject structure or premises and shall take the following actions based on such inspection:

a.

If all construction has been completed and the structure and premises are in compliance, or the building permit application is complete and the accompanying plans depict a development that conforms with all the applicable provisions of this article and special approval conditions, the zoning administrator shall approve the application for a certificate of occupancy or building permit.

b.

If, however, all work is not in compliance with all applicable requirements of this article or the building permit application is incomplete and the accompanying plans depict a development that would not conform with all the applicable provisions of this article, the zoning administrator shall deny the application and shall inform the applicant in writing of the specific deficiencies on which such denial is based, citing the particular provisions of this article, the particular items in the applicant's plans, or the applicable special approval conditions with respect to which compliance is lacking.

(3)

Contents of certificate. Every certificate of occupancy shall, at a minimum, state the specific use of the property for which it is issued, shall identify the specific plans, if any, pursuant to which it is issued, and shall set forth any conditions imposed in connection with any approval granted pursuant to this article.

(4)

Filing of certificates. Every certificate of occupancy issued pursuant to this section shall be kept on file in the community development department and shall be considered a public record, and shall be open for public inspection upon request.

(5)

Additional inspection cost. The zoning administrator may, where necessary, require the services of a qualified testing laboratory to determine anticipated compliance with performance standards prior to issuance of a building permit or certificate of occupancy. The cost of employing the testing laboratory shall be paid by the applicant.

(Code 2015, § 10.95(4))

Pending the issuance of a certificate of occupancy, the zoning administrator may approve a temporary certificate of occupancy for a period not exceeding six months, pending the completion of the development, including the erection or alteration of a structure. The temporary certificate shall state its temporary nature, and it shall not be construed as in any way altering the respective rights, duties, or obligations of the owners or of the city relating to the use or occupancy of the premises or any other matter except under such restrictions and provisions as will adequately ensure the safety of the occupants and abutting properties. The zoning administrator or building official may require the property owner to submit a performance guarantee to the building official. The performance guarantee shall be held by the building official for the duration of the temporary certificate of occupancy. The amount of the performance guarantee shall be equal to an amount deemed necessary to cause the completion of the development, including the erection or alteration of a structure. The performance guarantee shall only be returned to the property owner upon the issuance of a certificate of occupancy. If the temporary certificate of occupancy expires and the development is not completed per the approved site plan, conditions of approval, and approved building plans, the city reserves the right to use the performance guarantee to cause the completion of the development, including the erection or alteration of a structure.

(Code 2015, § 10.95(5))

The zoning administrator may approve a certificate of occupancy certifying the lawful existence and use of any existing structure or use, provided it is issued in the same manner and subject to the same requirements as described in this division. The certificate shall evidence only that which is contained in the certificate with respect to any structure or use as of the date of its issue and shall remain effective only for that purpose for so long as neither the use or structure nor the applicable provisions of this article are changed.

(Code 2015, § 10.95(6))

The zoning administrator may approve a certificate of occupancy certifying the lawful existence and use of any nonconforming use, structure, lot, sign, or fence, provided it is issued in the same manner and subject to the same requirements as described in this section.

(Code 2015, § 10.95(7))

Any certificate of occupancy or building permit issued in violation of the provisions of this article, whether intentionally, negligently, or innocently, shall be void immediately upon issue and shall give rise to no rights whatsoever.

(Code 2015, § 10.95(8))

The zoning administrator is hereby authorized and directed to enforce all the provisions of this article and shall perform the following duties:

(1)

Inspections. The zoning administrator shall have the authority to periodically inspect buildings, structures, and uses of land to determine compliance with the provisions of this article, or of any permit or approval granted pursuant to this article, or of any condition imposed pursuant to this article on any such permit or approval. In regard to performance standards, the zoning administrator may require the services of a testing laboratory to determine compliance. The cost of the laboratory services shall be paid for by the person responsible for the violation if one is so determined.

(2)

Procedure upon discovery of violation. Upon finding the existence of any violation of this article, the zoning administrator may take any or all of the following procedures:

a.

Stop and cease-and-desist orders. Upon finding the existence of any violation of this article, the zoning administrator shall notify, in writing, the person responsible for such violation, indicating the violation and ordering the action necessary to correct it; specifically, the zoning administrator shall order the discontinuance of any illegal use of land or structures, the removal of illegal structures, additions, or alterations, and the discontinuance of illegal work being done.

b.

Legal action. In the enforcement of this article, the zoning administrator shall exercise all the powers authorized by this Code and state law to ensure compliance with, or to prevent or abate any violation of the provisions of this article, and in particular shall, when necessary or appropriate, shall cause the city attorney to initiate any and all actions, legal or equitable, including appeals, that may be required for the enforcement of this article.

c.

Revocation of permits. The violation of any provision of this article, or of any permit or approval granted pursuant to this article, or of any condition imposed pursuant to this article on any such permit or approval, shall be grounds for the revocation of any permit, variance, or approval granted pursuant to this article. If the zoning administrator determines any such violation exists, the zoning administrator shall forward a report to the city council regarding the violation. The city council shall hold a public hearing regarding the violation, after which the council shall either revoke the permit or approval, modify the original conditions of the permit or approval, or affirm the compliance with the permit or approval.

d.

Fines and penalties. In the enforcement of this article, the zoning administrator shall, when necessary and appropriate, order the issuance and enforcement of citations to recover fines and penalties for the violation of this article as authorized by state law and this article.

(Code 2015, § 10.96)

The zoning administrator, subject to the procedures, standards, and limitations herein, may, in written request, render interpretations, including use interpretations, of the provisions of this article and of any rule or regulations issued pursuant to it.

(Code 2015, § 10.97(1))

The interpretation authority established by this division, is intended to recognize that the provisions of this article, though detailed and extensive, cannot, as a practical matter, address every specific situation to which they may have it be applied. Many such situations can be readily addressed by interpretation of the specific provisions of this article in light of the general and specific purpose for which those provisions have been enacted. Because the interpretation authority established is administrative rather than legislative, it is not intended to add or change the essential content of this article, but is intended only to allow authoritative applications of that content to specific cases.

(Code 2015, § 10.97(2))

Requests for interpretations may be filed by any person having a legal or equitable interest in property that gives rise to the need for an interpretation. Requests shall not be accepted when based solely on hypothetical circumstances or where the interpretation would have no effect other than as an advisory opinion.

(Code 2015, § 10.97(3))

The following procedure shall govern requests for administrative interpretations:

(1)

Requests. Requests for interpretations of this article shall be filed with the zoning administrator, and shall contain at least the following information:

a.

The property owner's name and address, and the owner's signed consent to the filing of the application.

b.

The applicant's name and address, if different than the owner, and the applicant's interest in the subject property.

c.

The specific provision or provisions of this article for which an interpretation is sought.

d.

The facts of the specific situation given rise to the request for an interpretation.

e.

The precise interpretation claimed by the applicant to be correct.

f.

In cases of use interpretations, the use permitted in the particular zoning classification that is claimed to be included, or be most similar to, the proposed use sought.

g.

In cases of a use interpretation, documents, statements, and other evidence demonstrating that the proposed use will comply with all use limitations established for the district in which it is proposed to be located.

(2)

Action on. Within 30 days following the receipt of a properly filed request, the zoning administrator shall inform the applicant in writing of the interpretation, stating the reasons for the determination therein.

(3)

Records. A permanent record of all requests for interpretations shall be kept on file in the office of the zoning administrator.

(4)

Appeals. Appeals from interpretations rendered by the zoning administrator may be made to the board of adjustments and appeals.

(Code 2015, § 10.97(4))

The following standards shall govern the zoning administrator, and the board of adjustments and appeals when on appeal, in issuing use interpretations:

(1)

Any use defined in section 10-2 shall be interpreted as therein defined.

(2)

No use interpretation shall permit any use in a particular district unless evidence shall be presented that demonstrates that it will comply with the general district regulations established for that particular district.

(3)

No use interpretation shall permit any use in a particular district unless such use is substantially similar to other uses permitted in that district and is more similar to such other uses permitted or conditionally permitted in a more restrictive district.

(4)

If the proposed use is most similar to a use permitted only as a conditional use in the district in which it is proposed to be located, then any use interpretation permitting such use shall be conditioned on the issuance of a conditional use permit for such use pursuant to article XI, division 3, of this chapter.

(5)

No use interpretation shall permit the establishment of any use that would not be consistent with the statement of purpose of the district in question.

(Code 2015, § 10.97(5))

No use interpretation finding a particular use to be permitted or conditionally permitted in a particular district shall authorize the establishment of such use nor the development, construction, reconstruction, alteration, or moving of any building or structure, but shall merely authorize the preparation, filing, and processing of applications for any permits and approvals that may be required by the codes or ordinances of the city, including, but not limited to, a building permit, a certificate of occupancy, subdivision approval, and site plan approval.

(Code 2015, § 10.97(6))

Subject to a possible extension of time granted by the zoning administrator, no use interpretation finding a use to be permitted or specially permitted in a particular district shall be valid for a period longer than six months from date of issuance unless action has been taken by the applicant in the form of the use being established or a building permit and construction or a certificate of occupancy is obtained.

(Code 2015, § 10.97(7))

The text if this article and the official zoning map may be amended from time to time by the passage of any ordinance duly adopted by the city council in accordance with the procedures set forth herein.

(Code 2015, § 10.98(1))

The purpose of this section is to provide standards and procedures for making amendments to the text of this article and the zoning map that are of general significance or application. The amendment process is not intended to relieve particular hardships nor to confer special privileges or rights on any person, but only to make adjustments necessary in light of changed conditions or changes in public policy.

(Code 2015, § 10.98(2))

Amendments to the text of this article and the zoning map may be initiated by written petition of any affected property owner, the city council, or the planning agency, provided the petition meets the requirements set forth in this section.

(Code 2015, § 10.98(3))

Petitions for amendments to this article shall be in such form and accompanied by such information as shall be prescribed, from time to time, by the planning agency and shall contain at least the following:

(1)

The petitioner's name, address, and interest in the petition and the name, address, and interest of every person, firm, corporation, or government agency represented by the petitioner in the petition.

(2)

The precise wording of the proposed amendment, together with concise explanation of its presumed effect.

(3)

A statement containing all the circumstances, factors, and arguments that the petitioner offers in support of the proposed amendment.

(4)

In the event that the proposed amendment would result in the rezoning of any property, the following shall be supplied:

a.

A statement specifying the names of the owners of the land proposed to be rezoned.

b.

A statement identifying the majority of owners of the land proposed to be rezoned and being parties to the petition.

c.

The street address and legal description of the land proposed to be rezoned.

d.

The present zoning classification and use of the land proposed to be rezoned.

e.

A preliminary plat if the property is not currently subdivided into lots and blocks in conformance with article XII of this chapter.

f.

A concept development plan for the property if the property is vacant or is intended to be redeveloped.

g.

A statement of purpose explaining the reasons for the rezoning.

(Code 2015, § 10.98(4))

In making their determination, the city council shall consider the following:

(1)

Whether the proposed amendment is consistent with the goals, objectives, and policies of the comprehensive land use plan, as adopted and amended from time to time by the city council.

(2)

Whether the proposed amendment is compatible with the overall character of existing development in the immediate vicinity of the affected property.

(3)

Whether the proposed amendment will have an adverse effect on the value of adjacent properties.

(4)

The adequacy of public facilities and services.

(Code 2015, § 10.98(5))

A petition to amend the text of this article and the official zoning map shall be processed in accordance with the following procedures:

(1)

Public hearing. After the filing of a petition for an amendment in the proper form, the zoning administrator shall set a date for a public hearing.

(2)

Notice. Notice of the public hearing shall be given by the planning agency by one publication in one or more newspapers of general circulation. Notice shall be published a minimum of ten days prior to the hearing date and a maximum of 30 days to the hearing. Notice shall also be given by first class mail to all owners of property within 350 feet of the area proposed to be rezoned, or as otherwise provided by state law. County assessment records and street addresses shall be deemed sufficient for the location or certification of ownership for notification purposes.

(3)

Planning agency action. Upon receipt of the petition, including a copy of the proposed text or map changes, the planning agency shall hold a public hearing. Within 60 days of the close of the public hearing, the planning agency shall recommend the approval or denial of the proposed amendment, or the approval of the amendment with modifications, and shall then submit its written recommendation, together with the petition for the text or map change, to the city council.

(4)

City council action. The city council shall either adopt or reject the recommendation of the planning agency or adopt some modification of the recommendation of the planning agency. No amendment shall be adopted except by the affirmative vote of two-thirds of all members of the city council.

(Code 2015, § 10.98(6))

An applicant for an amendment shall pay a nonrefundable filing fee in connection with the submittal of the application in accordance with a fee schedule as established, from time to time, by the city council.

(Code 2015, § 10.98(7))

The board of adjustments and appeals shall hear and decide appeals from any order or final decision of the zoning administrator by any person aggrieved by such order or final decision.

(Code 2015, § 10.99(1))

The appeal process is provided as a safeguard against arbitrary, ill-considered, or erroneous administrative decisions. It is intended to avoid the need for legal action by establishing local procedures to review and correct administrative errors. It is not, however, intended as a means to subvert the clear purposes, meanings, or intent of this article or the rightful authority of the zoning administrator to enforce the requirements of this article. To these ends, the reviewing body should give all proper deference to the spirit and intent embodied in the language of this article and to the reasonable interpretations of that language by those charged with the administration of this article.

(Code 2015, § 10.99(2))

The filing of an appeal shall stay all proceedings in furtherance of the action appealed from, unless the zoning administrator certifies to the board of adjustments and appeals, after the notice of appeal has been filed, that by reason of facts stated in the certificate, a stay would cause imminent peril to life or property, in which case the proceedings shall not be stayed otherwise than by a restraining order that may be granted by the board of adjustments and appeals or by a court of record.

(Code 2015, § 10.99(3))

An application for an appeal shall be processed in accordance with the following procedures:

(1)

Application. An application for an appeal to the board of adjustments and appeals shall be filed with the zoning administrator no later than 45 days after the action or decision being appealed.

(2)

Action of zoning administrator. Upon receipt of properly completed application for an appeal, the zoning administrator shall forthwith transmit to the board of adjustments and appeals the application together with all papers constituting the record upon which the action appealed from was taken.

(3)

Public hearing. Upon receipt of a properly completed application for an appeal, together with all papers constituting the record upon which the action appealed from was taken, the board of adjustments and appeals shall set a date for a public hearing. The hearing shall be held in accordance with the board's adopted rules of procedures.

(4)

Notice. Notice of the public hearing shall be given by the board of adjustments and appeals in accordance with the board's adopted rules of procedures.

(5)

Board of adjustments and appeals action. The board of adjustments and appeals shall render its decision in accordance with the board's adopted rules of procedures. The board of appeals may reverse or affirm, wholly or partly, or may modify the order or final decision as in its option ought to be made in the premises, and to that end has all the powers of the officer from whom the appeal is taken.

(Code 2015, § 10.99(4))

In any case where the application is accompanied by an application for a variance in accordance with division 5 of this article, the board of adjustments and appeals shall have the authority to grant, as part of the relief, a variance, provided it is done so in strict compliance with the provisions of division 5 of this article.

(Code 2015, § 10.99(5))

In any case where this article imposes conditions and limitations upon any right, any such right granted by the board of adjustments and appeals on appeal shall be subject to such conditions and limitations in the same manner and to the same extent as if secured without the necessity of an appeal.

(Code 2015, § 10.99(6))

An applicant, for an appeal, shall pay a nonrefundable filing fee in connection with the submittal of the application in accordance with a fee schedule as established from time to time by the city council.

(Code 2015, § 10.99(7))