a.

Generally.

1.

Application procedure. Applications for special exceptions must be filed in accordance with section 25.07.02 and reviewed in accordance with the provisions of section 25.07.08.

2.

Findings. The Board of Appeals must not grant any petition for a special exception unless it finds from a preponderance of the evidence of record that:

(a)

The proposed use does not violate or adversely affect the plan, this chapter or any other applicable law; and

(b)

The proposed use at the location selected will not:

(i)

Adversely affect the health and safety of residents or workers in the area;

(ii)

Overburden existing and programmed public facilities as provided in article 20 of this chapter and as provided in the adopted adequate public facilities standards manual;

(iii)

Be detrimental to the use or development of adjacent properties or the neighborhood;

(iv)

Change the character of the neighborhood in which the use is proposed considering services currently provided, population density, character, and number of similar uses; and

(v)

Constitute a nuisance because of noise, traffic, number of people, or type of physical activity; and

(c)

The proposed use complies with all applicable requirements of this chapter, including, but not limited to, the special requirements contained in section 25.15.02 and the general purposes of this chapter contained in section 25.01.02.

3.

Imposition of terms, conditions, and restrictions. The Board of Appeals may impose terms, conditions, and restrictions upon the grant of any special exception that are reasonably necessary to protect adjacent properties, the neighborhood, and the residents and workers in the vicinity. Compliance with all such terms, conditions, and restrictions are deemed to be continuing conditions imposed upon the grant of the special exception.

b.

Modifications. The operator of a special exception or the subject property owner may file an application to modify the terms or conditions of the special exception.

1.

Minor modification.

(a)

Chief of planning approval. If the proposed modification is such that the terms or conditions can be modified without substantially changing the nature, character, or intensity of the use and without substantially changing the effect of traffic from the use or on the immediate neighborhood, the Chief of Planning may modify the term or condition in accordance with the provisions for a level 1 site plan under article 7.

(b)

Decision. A copy of the Chief of Planning's decision modifying a special exception must be transmitted to the holder of the special exception, the Planning Commission, the Board of Appeals, and all parties entitled to notice in accordance with article 5.

(c)

Opportunity for a hearing on the decision. The decision letter must state that any interested person may, within fifteen (15) days after the date of the written notification of the Chief of Planning's decision, request a public hearing on the proposed modification. The request must be in writing, and must specify the reasons for the request and the nature of the objections or relief desired. If a request for a hearing is received, the decision of the Chief of Planning shall become void and the application for modification will be referred to the Board of Appeals to conduct a public hearing and render a decision.

2.

Major modification.

(a)

Board of appeals' approval. If, in the opinion of the Chief of Planning, the proposed modification substantially alters the nature, character, or intensity of use or the conditions of the original grant, the Board must convene a public hearing to consider the proposed modification. Except as otherwise provided in this section, such request for modification is subject to the requirements set forth in article 5, and the Board must receive and process applications for modification of a special exception in accordance with the provisions of that article.

(b)

Public hearing. The public hearing must be limited to consideration of the following:

(i)

Proposed modifications as set forth in the application; and

(ii)

Those aspects of the special exception use that are directly related to, or affected by the proposed modification.

(c)

Additional considerations for certain expansions. Notwithstanding the provisions of subsection 25.15.01.b.2.(b) above, the Board shall consider other aspects of the special exception if the modification proposes an expansion of the total floor area of all structures or buildings by more than twenty-five (25) percent, or seven thousand five hundred (7,500) square feet, whichever is less.

(d)

Decision. After the close of the record of the proceedings, the Board must issue a decision in accordance with the requirements of article 5.

(e)

Conditions. As a condition of any modification, the Board may require the special exception to be brought into compliance with the general landscape, streetscape, pedestrian circulation, noise, and screening requirements of article 17, if:

(i)

The proposed modification expands the total floor area of all structures or buildings by more than twenty-five (25) percent, or seven thousand five hundred (7,500) square feet, whichever is less; or

(ii)

The expansion, when considered in combination with the approved special exception, changes the nature or character of the special exception to an extent that substantial adverse effects on the surrounding neighborhood could reasonably be expected if the requirements of article 17 are not met.

3.

Notices.

(a)

Notices of filing of an application for modification of a special exception must be given in accordance with the provisions of subsection 25.05.03.c.

(b)

Notices of Board of Appeals hearing on an application for modification of a special exception must be given in accordance with subsection 25.07.08.k.

4.

Substantial changes requiring a new application. An application for a new special exception is required when substantial modifications meeting the criteria of subsection 25.05.07.d. are met.

(Ord. No. 7-11, § 15, 6-6-11)

a.

Adult oriented establishments.

1.

Scope. This subsection applies to adult oriented establishments that are permitted as special exceptions in the light industrial ("I-L") zone.

2.

Additional findings required for adult oriented establishments. The Board must make the following additional findings:

(a)

That the owners and operators of any adult oriented establishment have devised and will implement a procedure sufficient to ensure that no person under the age of eighteen (18) will be allowed access to the establishment; and

(b)

That neither the owner nor the operator of such a use has ever been convicted of violating any law, ordinance, or regulation dealing with obscenity or restricting the access of minors to such material, activities, or establishments.

3.

Additional development standards. Adult oriented establishments are subject to the following additional development standards:

(a)

No adult oriented establishment is allowed within a structure that is located within one thousand (1,000) feet of the nearest property line of any residence, school, church, library, public facility, or public building;

(b)

Any employee of an adult oriented establishment must be at least eighteen (18) years of age and must never have been convicted of violating any law, ordinance, or regulation concerning obscenity or restricting the access of minors to material, activities, or establishments;

(c)

No person under the age eighteen (18) is permitted access to any adult oriented establishment; and

(d)

No sexually oriented material or sexually oriented activities are allowed to be visible or audible from outside the establishment.

b.

Automobile filling station, class I; automobile filling station, class II; restaurant with drive-through and mechanical carwash.

1.

Scope. The provisions of this subsection apply to automobile filling stations, class I; automobile filling stations, class II; restaurants with a drive-through; and mechanical carwashes.

2.

Additional findings required for automobile filling stations, class I; automobile filling stations, class II; restaurants with a drive-through; and mechanical carwashes. The Board must make the following additional findings:

(a)

That the use at the location proposed will not result in a multiplicity and saturation of similar uses in the same general neighborhood of the proposed use; and

(b)

That all the additional development and use requirements contained in subsections 25.15.02.c.3.(a)(i)—(v) of this section will be satisfied.

3.

Additional development standards.

(a)

All uses enumerated in this subsection 25.15.02.c. must be located in such a manner that the proposed use:

(i)

Will not preempt frontage on a major highway in a manner that substantially reduces the visibility and accessibility of an interior commercial area zoned or proposed for commercial use which is oriented to the same highway;

(ii)

Will not impair the movement of through traffic along an adjoining thoroughfare through congestion and reduction of street capacities or cause the standing or backup of vehicles in the public right-of-way while awaiting service on the property in question;

(iii)

Will not cause frequent turning movements across sidewalks and pedestrian ways, thereby disrupting pedestrian circulation within a concentration of retail activity;

(iv)

Will not result in a fragmentation of the development pattern, thereby creating unnecessary additional points of vehicular conflict with an adjoining highway and adversely affecting the orderly development of the surrounding neighborhood; and

(v)

Will not preempt the use of any parking spaces or on-site driveways or cause vehicles waiting for service to back up into adjacent service drives or public roads by vehicles.

(b)

All restaurants with drive-through service are required to occupy a record lot that:

(i)

Is at least four hundred (400) feet away from any school site or parcel of land zoned or planned for single dwelling unit residential development or medium density residential use (this setback does not apply to residential or educational properties recommended for a nonresidential or noneducational use in the plan);

(ii)

Has a minimum of two hundred (200) feet of lot frontage on a business district road or major highway at the front lot line, and must preempt the utilization of such two hundred (200) feet of frontage by any other use; and

(iii)

Has a minimum lot size of forty thousand (40,000) square feet, and must preempt the utilization of such lot area by any other use.

4.

Additional parking, loading, and access requirements.

(a)

When a use enumerated in this subsection, 25.15.02.c.1., above occupies a corner lot, the ingress and egress driveways must be located at least seventy-five (75) feet from the point of intersection of the street line and the corner arc.

(b)

Open storage of motor vehicles or trailers, except those temporarily awaiting service during the business hours of the establishment, is prohibited.

(c)

Vehicular access to any residential street is prohibited.

5.

Additional screening and landscaping requirements. Lighting facilities must be arranged or screened so that they neither disturb the occupants of nearby residential properties nor interfere with the movement of traffic.

6.

Special development and use requirements for automobile filling station, class I and class II.

(a)

When located in the MXC zone, automobile filling stations, class I must:

(i)

Be an integral part of a neighborhood shopping center;

(ii)

Be contained in a structure limited in size to two (2) single car service bays plus rest rooms and office or supply storage space;

(iii)

Be limited in function to dispensing gasoline, oil, grease, antifreeze, tires, batteries, and automobile accessories directly to motor vehicles and to washing, polishing, and servicing motor vehicles only to the extent of installation of the enumerated items;

(iv)

Not rent or sell motor vehicles, trailers, or general replacement parts;

(v)

Not overhaul, tune up, or repair motors or bodies, or provide break relining or wheel alignment service, upholstery work, auto glass work, painting, welding, tire recapping, or auto dismantling; and

(vi)

Extinguish all floodlights at the close of business or 11:00 p.m., whichever is earlier.

(b)

Gasoline pumps or other service appliances must be located on the lot at least twenty (20) feet behind the building line, and all service, storage, or similar activities in connection with such use must be conducted entirely within the building.

(c)

The following additional parking, loading, and access requirements apply:

(i)

Parking of vehicles being serviced or stored for customers on streets, alleys, public sidewalks, or public park strips is prohibited; and

(ii)

When such use occupies a corner lot, the ingress and egress driveways must be located at least seventy-five (75) feet from the point of intersection of the street line and the corner arc, and these driveways must not exceed twenty-five (25) feet in width.

(d)

When located in a mixed-use zone, the design of the building and site layout should reflect the development standards set forth in article 13, consistent with the particular needs for an automobile filling station.

c.

Bed-and-breakfast lodging.

1.

Scope. This subsection applies to bed-and breakfast lodgings in residential zones.

2.

Additional findings required. The Board must make the following additional findings:

(a)

The owner of the dwelling unit in which the bed-and-breakfast lodging is located must live in the dwelling;

(b)

The minimum lot area must be at least nine thousand (9,000) square feet, but no less than the minimum lot area required in the zone; and

(c)

The proposed use must have adequate and safe access from a public street.

3.

Development standards.

(a)

No more than three (3) guest rooms are allowed on a lot or parcel of less than two (2) acres.

(b)

Parking must be located only in the side or rear yard. The Board of Appeals may allow parking in the front yard and/or on-street parking in conjunction with the use if the Board finds that such parking will not have an adverse impact on the surrounding neighborhood.

d.

Charitable or philanthropic institutions.

1.

Scope. This section applies to charitable or philanthropic institutions.

2.

Special development and use standards. If the use is to be located in a residential zone, it must have:

(a)

A lot area of at least twenty-five thousand (25,000) square feet;

(b)

A lot frontage of at least one hundred fifty (150) feet; and

(c)

Building setbacks of at least thirty-five (35) feet in the front yard, side yards equal to at least two (2) times the height of the tallest institutional building located on the lot which is proximate to the side yard and a rear yard of at least forty (40) feet.

e.

Child care centers.

1.

Scope. This subsection applies to child care centers in all zones where a special exception is required.

2.

Additional findings and conditions.

(a)

The Board must make the following additional findings:

(i)

The site provides ample outdoor play space, free from hazard and appropriately equipped for the age and number of children being cared for;

(ii)

The use satisfies all applicable state and county requirements; and

(iii)

If a child care center is located within one thousand (1,000) feet of another center, the cumulative effect of the centers will not have an adverse impact on the neighborhood due to noise, traffic, or other similar facts.

(b)

Adequate fencing and screen planting may be required, if deemed necessary, to protect adjacent properties against intrusion.

3.

Special development and use requirements—Additional development standards.

(a)

Child care centers must meet the following lot size standards, based on the number of children being cared for at any one (1) time:

(b)

If any child care center cares for more than one hundred (100) children at any one (1) time, and if the special exception approval limits the use of the property so that no more than thirty (30) percent of the children are involved in outside activities at any one (1) time, then the child care center must have a minimum lot area of thirty thousand (30,000) square feet plus four hundred (400) square feet for each child in excess of forty (40).

f.

Educational institutions, private.

1.

Scope. This subsection applies to private educational institutions, including but not limited to general academics, business, art, music, dance, trade, and job training in all zones where a special exception is required. This section does not apply to any private educational institution located on a lot or parcel that contains a church, synagogue, or other place of worship that is affiliated with the private educational institution.

2.

Special development and use requirements. The following special development and use requirements apply:

(a)

Institutions which offer any general academic instruction at levels above the eighth grade must have:

(i)

A lot area of at least one (1) acre plus eight hundred seventy-five (875) square feet for each student in excess of fifty (50);

(ii)

A lot frontage of at least three hundred (300) feet; and

(iii)

Building setbacks of at least fifty (50) feet in the front yard, side yards equal to at least two (2) times the height of the tallest institutional building located on the lot which is proximate to the side yard and a rear yard of at least fifty (50) feet.

(b)

Kindergartens and nursery schools must have:

(i)

A lot area of at least ten thousand (10,000) square feet for up to thirty (30) students;

(ii)

A lot frontage of at least one hundred (100) feet; and

(iii)

Building setbacks of at least thirty-five (35) feet in the front yard, side yards equal to at least the height of the tallest institutional building located on the lot which is proximate to the side yard and a rear yard of at least forty (40) feet.

(c)

All other private educational institutions must comply with the following:

(i)

Where the maximum attendance at any one (1) time does not exceed forty (40) students, such institution must have:

A.

A lot area of at least ten thousand (10,000) square feet for up to twenty (20) students, plus five hundred (500) square feet for each student over twenty (20) students;

B.

A lot frontage of at least one hundred fifty (150) feet; and

C.

Building setbacks of at least thirty-five (35) feet in the front yard, side yards equal to at least the height of the tallest institutional building located on the lot which is proximate to the side yard, and a rear yard of at least forty (40) feet.

(ii)

Where the maximum attendance at any one (1) time exceeds forty (40) students, such institution must have:

A.

A lot area of at least one (1) acre plus seven hundred (700) square feet for each student in excess of sixty (60);

B.

A lot frontage of at least two hundred (200) feet; and

C.

Building setbacks of at least fifty (50) feet in the front yard, side yards equal to at least two (2) times the height of the tallest institutional building located on the lot which is proximate to the side yard, and a rear yard of at least fifty (50) feet.

3.

Additional screening and landscaping requirement. School buses must be garaged or be stored in an area to the rear of the enclosed main building enclosed by such adequate screening as may reasonably be required by the Board of Appeals.

g.

Home-based business enterprise (major).

1.

General provisions. Major home-based business enterprises are subject to the applicable provisions of section 25.09.07 which include, but are not limited to general provisions, inspections, and use of accessory buildings.

2.

Major home-based business enterprises. Except as provided in subsection 25.09.07.c.2., major home-based business enterprises are subject to the following provisions:

(a)

Special exception approval. All major home-based business enterprises are special exceptions subject to the applicable review provisions of article 15 of this chapter.

(b)

Application procedures. As part of the special exception application, the applicant must provide the following information plus such additional information required for special exceptions:

(i)

The location of any off-street parking spaces;

(ii)

The hours of operation;

(iii)

The number of nonresident employees;

(iv)

Any licensing requirements.

(c)

Employees. A major home-based business enterprise must be conducted by an individual residing in the dwelling unit, and may employ no more than two (2) nonresident assistants or business associates who are at the dwelling unit for any length of time during the 24-hour day. The arrival and departure of the nonresident assistant or associate are not included in the limitations or visits to the site.

(d)

Visits to the site.

(i)

The maximum number of visits to and from the site, including deliveries, is limited to twenty (20) visits per week unless a greater number is set by the Board of Appeals.

(ii)

Visits are prohibited between the hours of 10:00 p.m. and 7:00 a.m., except in cases of medical emergency.

(e)

Sale and production of goods and services. The following activities are permitted in a major home-based business enterprise:

(i)

The sale of goods, excluding hazardous items;

(ii)

The production of handmade products; and/or

(iii)

Personal and professional services.

(f)

Display/storage of goods. Allowable display or storage of goods will be determined by the Board of Appeals.

3.

Additional restriction. The special exception is granted solely to the owner/applicant and does not run with the land. The special exception expires when either of the following occurs:

(a)

The owner/applicant vacates the property, or

(b)

The owner/applicant no longer utilizes a portion of the dwelling for the home-based business enterprise.

h.

Hospitals or nursing homes. The following special development and use requirements apply:

1.

Additional development standards for hospitals. Hospitals must have:

(a)

A net lot area of at least five (5) acres;

(b)

A lot frontage of at least two hundred (200) feet; and

(c)

Building setbacks of at least fifty (50) feet in the front yard, side yards equal to at least three (3) times the height of the tallest building located on the lot which is proximate to the side yard, but not less than seventy-five (75) feet, and a rear yard of at least one hundred (100) feet.

2.

Additional development standards for nursing homes. Nursing homes must have one thousand (1,000) square feet of net lot area per bed.

i.

Housing for senior adults and persons with disabilities.

1.

Scope. This subsection applies to housing for senior adults and persons with disabilities.

2.

Additional required findings. The board must make the additional finding that the site proposed for such use has adequate accessibility to, or provides on-site, public transportation, medical services, shopping areas, recreational, and other community services frequently used by residents of such use.

3.

Special development and use requirements.

(a)

Minimum lot size. Development must be on a record lot of at least two (2) acres.

(b)

Minimum street frontage. The lot must have at least one hundred (100) feet of frontage on a public street.

(c)

Setbacks. All structures on the site must be set back at least as follows:

(i)

Front yard. Fifty (50) feet, except for projects in the MXT zone, the setback may be the minimum required in the zone; and

(ii)

Side and rear yards. Twice the minimum required in the zone.

(d)

Maximum lot coverage. Notwithstanding the provisions of subsections 25.10.05.a. and 25.10.05.b., in the R-400 and R-200 zones, the maximum lot coverage is limited to thirty (30) percent; provided that the development of the facility does not exceed one (1) story and also does not exceed twenty (20) feet in height, except as provided in subsection (e) below.

(e)

Building height. Building height is normally limited to the height allowed in the zone. The Board may allow additional height up to fifty (50) feet in a single unit detached residential zone if additional setbacks are provided and the Board finds that the additional height will not have an adverse impact on the adjoining and confronting properties. Additional height up to fifty (50) feet may be allowed by the Board in a mixed-use zone without the requirement for additional setbacks.

4.

Occupancy.

(a)

Occupancy of a dwelling unit is restricted to the following:

(i)

A senior adult or person with disabilities, as defined in section 25.03.02;

(ii)

The spouse of a senior or disabled resident, regardless of age or disability;

(iii)

The resident caregiver, if needed to assist a senior or disabled resident;

(iv)

In a development designed primarily for persons with disabilities rather than senior adults, the parent, daughter, son, sister, or brother of a disabled resident, regardless of age or disability; and

(v)

Resident staff necessary for operation of the facility.

(b)

Age restrictions must comply with at least one (1) type of exemption for housing for older persons from the familial status requirements of the federal Fair Housing Act, Title VIII of the Civil Rights Act of 1968, and subsequent amendments.

j.

Life care facility.

1.

Scope. This subsection applies to life care facilities.

2.

Additional required findings. The Board must make the additional finding that the site proposed for such use has adequate accessibility to, or provides on-site, public transportation, medical services, shopping areas, recreational and other community services frequently used by residents of such use.

3.

Special development and use requirements.

(a)

Minimum lot area. Development must be on a record lot of at least five (5) acres;

(b)

Frontage. The lot must have at least one hundred (100) feet of frontage on a public street;

(c)

Setbacks. All structures on the site must be set back at least as follows:

(i)

Front yard. Fifty (50) feet.

(ii)

Side and rear yards. Twice the minimum required in the zone or the height of the building, whichever is greater; except that if the adjoining property is either in a non residential zone or is in a single unit detached residential zone and is developed with a nonresidential use, the setback is the minimum required in the zone.

(d)

Lot coverage in R-400 and R-200 zones. Notwithstanding the provisions of subsections 25.10.05.a. and 25.10.05.b., in the R-400 and R-200 zones, the maximum lot coverage is limited to thirty (30) percent.

(e)

Building height. Building height is normally limited to the height allowed in the zone. The Board may allow additional height up to fifty (50) feet if additional setbacks are provided and the Board finds that the additional height will not have an adverse impact on the adjoining and confronting properties.

4.

Occupancy.

(a)

Occupancy of a dwelling unit is restricted to the following:

(i)

A senior adult or person with disabilities, as defined in section 25.03.02;

(ii)

The spouse of a senior or disabled resident, regardless of age or disability; and

(iii)

The resident caregiver, if needed to assist a senior or disabled resident.

(b)

Age restrictions must comply with at least one type of exemption for housing for older persons from the familial status requirements of the federal Fair Housing Act, Title VIII of the Civil Rights Act of 1968, and subsequent amendments.

k.

Personal living quarters. In addition to the required findings in section 25.15.01, the Board must also find that adequate on-site parking is available so the personal living quarters will not overburden the existing neighborhood.

l.

Pawnbroker. No pawnbroker is permitted within a structure that is located:

1.

Within five hundred (500) feet of the nearest property line of any residentially zoned property; or

2.

Within one thousand five hundred (1,500) feet of another structure in which a pawnbroker is located.

m.

Public utility buildings and structures. In all residential zones where authorized, all public utility buildings and structures, whenever practicable, must have the exterior appearance of a residential building together with such landscaping, screen planting, and fencing as may reasonably be required by the Board.

n.

Restaurants in the I-L zone. The establishment of a restaurant in the I-L zone:

1.

Must be accessory to the main use of any lot;

2.

Must be located within the main building; and

3.

Must not occupy more than twenty-five (25) percent of the gross floor area of the building.

o.

Swimming pools, non-accessory.

1.

Special development and use requirements. The following special development and use requirements apply to non-accessory swimming pools:

(a)

The membership of any such pool operated on a membership basis must not exceed four (4) times the legal capacity of the pool, and a family membership must be computed at three and one-half (3.5) persons;

(b)

Membership of any such pool must not exceed two thousand eight hundred (2,800) persons; and

(c)

The number of persons allowed on the lot on which the pool is located must not exceed the legal capacity of the pool.

2.

Additional development standards.

(a)

Minimum lot area. The minimum lot size of any non-accessory swimming pool must be in accordance with the following table. Legal capacity must be calculated in accordance with the requirements of section 25.03.03.c.8.:

(b)

Minimum deck size. The minimum deck size of a non-accessory swimming pool must be calculated in accordance with the requirements of subsection 25.03.03.c.9.

3.

Distance from property line and single-unit dwellings. Any such pool must be located no less than seventy-five (75) feet from the nearest property line nor less than one hundred twenty-five (125) feet from any existing single-unit detached or semi-detached dwelling, except that where the lot upon which such pool is located abuts a railroad right-of-way, publicly owned land (except streets) or land in a nonresidential zone, the pool may be constructed not less than twenty-five (25) feet from such railroad right-of-way, publicly owned land, or land in a nonresidential zone.

p.

Taxicab service—Special development and use requirements. The following special development and use requirements apply to taxicab services:

1.

All vehicles used in connection with such use must be parked entirely within the lot on which the use is operated; and

2.

Servicing of such vehicles, including but not limited to dispensing of gasoline and oil, is prohibited on the same lot unless auto repair is permitted in the zone in which the lot is located.

q.

Veterinary office and animal hospital—Special development and use requirements. The special development and use requirements for veterinary office and animal hospitals are as follows:

1.

Such use must have a lot area of at least one (1) acre; and

2.

No structure for the housing of animals is permitted within fifty (50) feet from any residential use.

r.

Wireless communication facility.

1.

Scope. This subsection applies to wireless communication facilities mounted on free-standing antenna structures.

2.

Special development and use requirements. Wireless communication facilities must comply with the development standards contained in section 25.09.08.

3.

Additional findings required. The Board of Appeals must make those additional findings required in section 25.09.08.

(Ord. No. 29-09, § 15, 10-26-09; Ord. No. 7-11, § 15, 6-6-11; Ord. No. 17-23, § 3, 10-9-23)