Mukwonago Village City Zoning Code
ARTICLE IV
Conditional Uses
§ 100-351 Applicability and restrictions.
[Added 10-21-2020 by Ord. No. 985[1]]
(a)
General applicability. Those land uses designated as a conditional use must comply with the requirements in this article.
(b)
Limitation due to nonconforming lot. In the event a lot is classified as a nonconforming lot (e.g., lot area, lot width), all conditional uses are prohibited, unless the Plan Commission determines, on a case-by-case basis, that the nature of the nonconformity does not affect the appropriateness of the lot for the conditional use. Any such determination in the affirmative shall have no bearing on the Plan Commission's recommendation and/or Village Board's decision under this article.
(c)
Limitation due to a nonconforming use on the lot. In the event a lot has a nonconforming use, all conditional uses are prohibited, unless the Plan Commission determines, on a case-by-case basis, the nonconforming use and a proposed conditional use are compatible. Any such determination in the affirmative shall have no bearing on the Plan Commission's recommendation and/or Village Board's decision under this article.
(d)
Limitation due to existing conditional use on the lot. In the event a lot has an approved conditional use, all other conditional uses are prohibited, unless the Plan Commission determines, on a case-by-case basis, that the existing and proposed conditional uses are compatible. Any such determination in the affirmative shall have no bearing on the Plan Commission's recommendation and/or Village Board's decision under this article.
[1]
Editor's Note: This ordinance also repealed former § 100-351, Permits, which derived from Ord. No. 700, § V, 1-21-2003, as amended.
§ 100-352 Application.
[Ord. No. 700, § V, 1-21-2003; amended 8-21-2019 by Ord. No. 967; 10-21-2020 by Ord. No. 985]
(a)
Application for conditional use shall be made on forms maintained by the Zoning Administrator and shall include the following:
(1)
Names and addresses of the applicant, owner of the site, architect, professional engineer, contractor, and all opposite and abutting property owners of record.
(2)
Description of the subject site by lot, block and recorded subdivision or by metes and bounds; address of the subject site; type of structure; proposed operation or use of the structure or site; number of employees; and the zoning district within which the subject site is located.
(3)
Plat of survey prepared by a registered land surveyor, or a sketch drawn to scale and approved by the Zoning Administrator, showing all of the information required under § 100-14 for a building permit and existing and proposed landscaping.
(4)
All information requested by site plan and architectural review in § 100-601. However, for conditional use applications in an existing structure, the Zoning Administrator may waive submission requirements.
(5)
The application fee for conditional uses shall be set by Village Board resolution.
(6)
A plan of operation that describes in detail, acceptable to the Zoning Administrator, the following characteristics as proposed:
a.
Hours of operation;
b.
Number of employees, including both full-time equivalents and maximum number of personnel to be on the premises at any time;
c.
Anticipated noise, odors, dust, soot, runoff or pollution and measures taken to mitigate the impacts of these matters on neighboring properties;
d.
Descriptions of any materials stored outside and any activities, processing or other operations taking place outside of an enclosed building, if otherwise allowed;
e.
Compliance with the Village's Stormwater Ordinance, erosion control standards, where applicable;
f.
Sanitary facilities and private on-site waste transfer systems are in compliance with the requirements of the county agencies with jurisdiction;
g.
Facilities for managing removal of trash, solid waste and recycling materials;
h.
Anticipated daily traffic, including, but not limited to, the types and weights of vehicles, night provisions, necessary intersection and road improvements or other measures proposed to accommodate increased traffic and/or the weight of the vehicles being utilized;
i.
List of hazardous, toxic or explosive materials to be stored on-site, if otherwise allowed, and any spill containment, safety or pollution measures which will be put in place for the use; and
j.
Outdoor lighting and measures taken to mitigate light pollution and impacts to neighboring properties.
§ 100-353 Hearings.
[Ord. No. 700, § V, 1-21-2003; Ord. No. 836, § II, 1-18-2011; 10-21-2020 by Ord. No. 985]
The Plan Commission shall hold a public hearing on each application, giving public notice as specified in Article XIV of this chapter. The Plan Commission may subsequently recommend approval of the conditional use with appropriate conditions or recommend denial with reasons. The recommendations shall be forwarded to the Village Board.
§ 100-354 Review, findings and approval.
[Ord. No. 700, § V, 1-21-2003; Ord. No. 836, § III, 1-18-2011; amended 8-21-2019 by Ord. No. 967; 10-21-2020 by Ord. No. 985]
(a)
The Plan Commission shall, as a minimum, review the site, existing and proposed structures, architectural plans, neighboring uses, parking areas, driveway locations, highway access, traffic generation and circulation, drainage, sewerage and water systems and the proposed plan of operation.
(b)
Conditions such as landscaping, architectural design, type of construction, construction commencement and completion dates, sureties, lighting, fencing, planting screens, operational control, hours of operation, improved traffic circulation, deed restrictions, highway access restrictions, increased yards, or parking requirements may be required upon a finding that these are necessary to fulfill the purpose and intent of this chapter.
(c)
Compliance with all other provisions of this chapter, such as lot width and area, yards, height, parking, loading, traffic, shoreland-wetland zoning requirements and highway access, shall be automatically required of all conditional uses. Variances shall only be granted as provided in § 100-808 of this chapter.
(d)
The Plan Commission shall recommend approval, denial or conditional approval of all conditional use applications within 60 days of submittal, unless said time frame is extended by written approval of the applicant.
(e)
When recommending approval of the conditional use, the Plan Commission shall find that:
(f)
The following shall apply to the administration of conditional uses:
(1)
If a structure has been granted a conditional use permit, but the conditional use permit was not granted for a specific use, then the specific use shall first gain a conditional use permit prior to occupancy, if such use required a conditional use permit in the zoning district in which the property is located.
(2)
Conditional uses that expand or relocate positions within the same property shall submit a new application to be reviewed under the standards and requirements in effect on the date of the submittal.
(3)
An existing conditional use cannot be transferred within the same property or location to another conditional use category; for example, from a tavern to a body shop.
(4)
A conditional use in good standing, such as conditional uses that conform to conditions of approval and all municipal codes, shall be allowed to transfer ownership, unless otherwise specified in the approval. The process for amending an approved conditional use order shall follow the procedures for issuance.
(g)
Should an applicant, his/her heirs or assigns fail to comply with the conditions of an approved conditional use order or should the use or characteristics of the use be changed without prior approval by the Village Board, the permit shall be revoked. The process for revoking an approval shall generally follow the procedures for reviewing an application for a new conditional use.
(h)
Only complete applications will be accepted. In the event there are any orders pending with respect to the property or the property is in violation of the terms and conditions of the Village Code, or in the event there are fees, special charges for current services or other sums owed by the owner or occupant of the property to the Village, the application will not be considered until such time as the outstanding fees, costs or assessments are paid and the property is in compliance with Village ordinances.
(i)
The Village may consult with a person or persons with appropriate expertise as determined by the Village to effectively evaluate a conditional use application. The review that may be conducted by the consultant may include, but not be limited to, peer review of the reports, analysis and opinion of the applicant's consultant or experts, the adequacy of the measures proposed to protect the public health, safety and welfare, as well as the impact of traffic, noise, odors, lighting and containment, the safety or pollution prevention measures necessary to implement the conditional use. The Village Administrator or his/her designee will select the consultant. The applicant shall bear all reasonable costs and expenses associated with such consultation. The Zoning Administrator shall advise the applicant of the Village's intention to exercise its authority under this section. The applicant may withdraw a pending application to avoid the incurring of fees under this subsection until such time as the expert or consultant is retained; after which the applicant shall be responsible for the fees incurred by the expert consultant until the time the application is withdrawn. The Village may postpone action on any application until any pending violations of the Village's Municipal Code are resolved and the property owner brings the property to full compliance with applicable standards and any outstanding fees, costs or expenses incurred by the property owner, or any tenant, are paid in full.
(j)
The Plan Commission may require, in its reasonable discretion, a bond or other financial guaranty to dismantle equipment, buildings or structures that may pose a hazard or nuisance after a conditional use has been abandoned or revoked, unless otherwise required by an applicable state law or Administrative Code provision. Any bond or financial instrument provided hereunder shall expressly state that it will remain in full force and effect for a period of at least six months after the surety provides the Village with written notice of an expiration or termination of the surety's obligation under the bond. The applicant shall remove any equipment or structure placed or erected pursuant to a conditional use order that may pose a hazard or nuisance after the use has been abandoned or revoked not less than 30 days prior to termination or expiration of the bond or financial guaranty. The amount of the surety shall be based upon the estimated cost of the removal of the equipment, building or structure, plus 20%.
(k)
Compliance with standards.
(1)
The Plan Commission in making its recommendation and the Village Board in making its decision shall ensure compliance with the following standards:
a.
The establishment, maintenance or operation of the conditional use will not be detrimental to or endanger the public health, safety or welfare of the Village.
b.
The uses, values and enjoyment of other property in the surrounding neighborhood that are already permitted shall be, in no foreseeable manner, substantially impaired or diminished by the establishment, maintenance or operation of the conditional use.
c.
The establishment, maintenance or operation of the conditional use is compatible with surrounding properties, whether in the same or different zoning districts. In making this determination, the Plan Commission and Village Board must determine whether the petitioner has demonstrated there are no adverse effects on surrounding properties or that potentially adverse effects have been eliminated or reduced to an acceptable level. Approaches that could be employed to mitigate potentially adverse effects will depend on the particular circumstances but may include:
1.
Adjusting the location of the use, or parts thereof, on the subject property;
2.
Limiting hours of operation;
3.
Limiting the size or scope of the use, or parts thereof;
4.
Controlling how the use is managed on an ongoing basis;
5.
Providing additional landscaping;
6.
Providing additional screening; and
7.
Limiting operations conducted out-of-doors, if otherwise allowed.
d.
The establishment, maintenance or operation of the conditional use will not impede the normal and ordinary development and improvement of the surrounding property for uses permitted within the district and/or which are consistent with the standards in the Comprehensive Plan.
e.
Adequate utilities, access roads, drainage and other necessary site improvements have been or are being made to accommodate the use.
f.
Adequate measures have been taken or will be taken providing ingress and egress to minimize traffic congestion on public streets so as not to diminish the level of service of any intersection which is impacted by traffic arising from the conditional use.
(2)
In making such determination, the personal experience of surrounding property owners may be considered substantial evidence.
(l)
The Plan Commission shall grant approval if the terms and conditions of this article are met. However, in the event the terms and conditions of the article are not consented to and complied with by the applicant, the Commission shall deny the application. In addition, the Commission may deny the conditional use or place conditions on it if substantial evidence, as defined in W.S.A. § 62.23(7) is presented. That evidence shall demonstrate the inability of the applicant to comply with or meet the conditions of this article or that the conditions to be applied by the Plan Commission are necessary to protect the public health, safety or welfare of the community based upon the presentation of substantial evidence.
§ 100-355 Special conditions of approval.
[Added 10-21-2020 by Ord. No. 985]
(a)
Generally. Based on substantial evidence, the Plan Commission may recommend and the Village Board may impose one or more conditions of approval as may be necessary to grant approval. Such conditions and restrictions may relate to the establishment, location, construction, maintenance, operation of the use, off-site impacts, and any other aspect of the use that impacts the public health, safety, or general welfare. Examples of such conditions are listed below:
Issue | Potential Condition | |
|---|---|---|
1. | Hours of operation | Limit hours of operation to hours to be more compatible with surrounding uses |
2. | Buffering | Require more of a buffer than what is otherwise required by this chapter. Buffering may include landscaping, walls or fences, berms, and other features to physically separate adjoining uses. |
3. | Maximum floor area | Establish a maximum floor area that may be less than what is otherwise allowed |
4. | Maximum number of patrons | Limit the size of the use by establishing maximum patron loads, often by seats and/or tables |
5. | Uses within buildings | Limit commercial uses to the first floor of a multistory building |
6. | Number and/or location of entrances | Design the site and building so that entrances are located in areas away from adjoining properties |
7. | Outdoor activity | Restrict locations and/or times of outdoor activity |
8. | Outdoor storage | Establish a maximum area for outdoor storage that may be less than what is otherwise allowed |
9. | Take-out food service | Prohibit drive-up service windows and/or walk-up service windows in certain areas of the property (e.g., near a residential use). If these are allowed, limitations could be set. |
10. | Delivery services | Prohibit delivery services that entail frequent trips or establish upper limits on the activity |
11. | Signage | Prohibit signage in areas of the property that may cause an impact on surrounding areas |
(b)
Limitation on imposing conditions. A condition of approval shall not lessen a development standard or other requirement in this chapter.
(c)
Effect on contracts with another party. The review authority shall not condition or withhold approval based upon the property owner entering into a contract or discontinuing, modifying, extending, or renewing any contract with a third party under which the third party is engaging in a lawful use of the property.[1]
[1]
Editor's Note: See W.S.A. § 62.23(7)(gm). The Village, for example, could not require an applicant to terminate an existing contract with another party that is engaged in a lawful use of the property.
§ 100-356 Term for approval.
[Added 10-21-2020 by Ord. No. 985]
(a)
Generally. A conditional use order authorizing a conditional use shall have a five-year term unless otherwise specified in the conditional use order.
(b)
Change in term as part of renewal. If a term is specified in a conditional use order (i.e., the approval is not permanent), the Plan Commission during the renewal process may revise the term to be a longer period (e.g., change renewal from five years to 10 years) or make the approval permanent (e.g., remove the renewal requirement from the order).
(c)
Administrative renewal. The order may describe an administrative renewal process to allow for streamlined renewal of the conditional use order with a provision that allows the Plan Commission and/or the Village Board to remove the conditional use order from administrative renewal if there are concerns with compliance with the conditional use order or concerns raised by the public about the applicant's operations. If the Plan Commission or the Village Board pulls the conditional use order from administrative renewal, the conditional use order shall remain in effect while the Plan Commission provides due process to the applicant in reviewing the conditional use order and its potential renewal.
§ 100-357 Effect of approval.
[Added 10-21-2020 by Ord. No. 985]
(a)
Generally. Unless otherwise specified in the conditional use order, approvals run with the land.
(b)
Temporary uses. If a conditional use is listed as a temporary use and is approved by the Village Board as a conditional use, the use may be reestablished with the written approval of the Zoning Administrator if he or she determines that the use to be reestablished is substantially the same as what was originally approved and that the approved use did not create any potentially adverse impacts on the public health, safety, or welfare.
§ 100-358 Expiration of approval.
[Added 10-21-2020 by Ord. No. 985]
(a)
Nonestablishment of use. If the Zoning Administrator determines that substantial work as authorized by a conditional use approval did not commence within 12 months of the date of approval or if substantial work did commence within 12 months of the date of approval but has not continued in good faith to completion, he or she shall initiate the process to terminate the approval. Upon petition and with cause, the Zoning Administrator may grant a one-time extension, not to exceed six months, provided:
(1)
The permit holder requests the extension prior to the expiration of the approval;
(2)
The permit holder clearly demonstrates that circumstances beyond his or her control prevented the start of construction and the continuation of the same; and
(3)
The project complies with this chapter in effect at the time the extension is granted.
(b)
Cessation of use. If the Zoning Administrator determines that a conditional use has ceased to operate for any reason, whether intentional or otherwise, for more than 12 continuous months, he or she shall initiate the process to terminate the approval.
§ 100-359 Amendment of an approved conditional use.
[Added 10-21-2020 by Ord. No. 985]
Following approval of a conditional use, the Plan Commission shall review all proposed changes to the approval. If, in the opinion of the Plan Commission, the proposed change constitutes a minor alteration, the Plan Commission may approve the requested change in writing at a regular or special meeting of the Plan Commission without following the review procedure in this article. If the proposed change constitutes a major alteration, the review procedure in effect at the time of submittal shall be followed.
§ 100-360 Appeal.
[Added 10-21-2020 by Ord. No. 985]
An aggrieved person may appeal a final decision made pursuant to this article by filing an appeal with a court of competent jurisdiction within 30 calendar days of the final decision.
§ 100-361 Effect of Comprehensive Plan.
[Added 10-21-2020 by Ord. No. 985]
While a conditional use need not be consistent with the Village's adopted Comprehensive Plan as set forth in W.S.A. § 66.1001(2m)(b), the Village encourages consistency.