Although each zoning district is primarily intended for a predominant type of use (such as dwellings in residential districts), there are a number of uses which may or may not be appropriate in a particular district depending upon, for example, the location, nature of the proposed use, character of surrounding development, traffic capacities of adjacent streets and potential environmental effects. These factors may dictate that the circumstances of development should be individually reviewed. It is the purpose of this Article to provide review of such uses so that the Town is assured that such uses are compatible with their locations and surrounding land uses and will further the purposes of the Article and the Comprehensive Plan.

(Ord. 209 Art. III §1, 1981; Ord. 645 §7, 2008; Res. 2021-06 §7, 2021)

(a)

An application for approval of a special review use may be filed by a person having an interest in the property for which the special review use is requested, with the written consent of the owner, and shall be made on a form provided by the Town. The application must be submitted electronically, along with two (2) full size copies and include the following:

(1)

A complete site plan illustrating:

a.

Adjacent land uses and location of adjacent structures, including all adjacent natural features that will be impacted by the use.

b.

Boundary and size of site.

c.

Building location, height and setbacks.

d.

Off-street parking and loading areas.

e.

Points of ingress and egress.

f.

Service and refuse areas.

g.

Signs and exterior lighting.

h.

Fencing, landscaping and screening.

i.

Compliance with performance standards.

j.

Anticipated utility requirements.

k.

North arrow reference.

(2)

A time schedule for development.

(3)

Explanation of how the project furthers the purposes of the Comprehensive Plan.

(4)

Other information the applicant believes will support the application.

(b)

The applicant shall furnish a list of the names and addresses of owners of property located within three hundred (300) feet of the subject site.

(c)

Upon review of the application, the Planning Commission may determine that additional information is critical to its evaluation of the application. The applicant shall be responsible for furnishing such additional information if so requested.

(d)

The applicant shall pay a nonrefundable special review use application fee set forth in Section 4-151 to the Town upon submission of the application to cover processing costs of the Town. In addition to the fee, a deposit in an amount determined by the Town to be sufficient to cover costs incurred by the Town for necessary legal, planning, engineering and other technical review of the application and an executed agreement by which the applicant agrees to replenish the deposit when requested by the Town and to pay on a monthly basis all costs incurred by the Town in processing the application shall be filed with the Town at the time the application is filed. The Town Clerk shall send the applicant a monthly statement of costs incurred by the Town. Said costs shall be paid in full prior to final consideration of the application by the Board of Trustees. The cost of an election and any legal fees incurred by the Town related to such election shall be paid by the Town should an appeal to the electorate be initiated through citizen referendum petition. Any amount of the deposit not expended will be refunded by the Town within forty-five (45) days after the applicant's withdrawal of the application, the Town's final action on the application, or the effective date of the ordinance approving the application.

(e)

The Board of Zoning Adjustment shall determine all uses which are not specifically listed in Section 16-32(c).

(Ord. 209 Art. III §2, 1981; Ord. 382 §2, 1994; Ord. 552 §3, 2001; Ord. 645 §8, 2008; Ord. 725 §10, 2013; Res. 2021-06 §8, 2021)

If the proposed special review use is submitted as part of a planned unit development plan, the provisions of this Article shall be met through approval of the planned unit development plan. Whichever restrictions are more restrictive or impose higher standards or requirements shall govern.

(Ord. 209 Art. III §3, 1981; Ord. 645 §9, 2008; Res. 2021-06 §9, 2021)

(a)

The applicant shall submit the complete application to the Zoning Administrator. Upon finding the application complete, the Zoning Administrator shall submit the application to the Planning Commission along with documentation of all issues discussed and any proposed agreements suggested up to that point.

(b)

Within thirty (30) days of receipt of the application from the Zoning Administrator, the Planning Commission shall hold a public hearing to consider the application. Public notice of the hearing shall be published in a newspaper of general circulation within the Town at least fifteen (15) days prior to such hearing. Additionally, owners of property within three hundred (300) feet of the subject property shall be notified of the public hearing by first class mail and the property shall be posted at least fifteen (15) days prior to the hearing along the part of such property fronting on a street.

(c)

Within thirty (30) days following the public hearing or within such time as is mutually agreed by the Planning Commission and the applicant, the Planning Commission shall either recommend approval of the application, with or without conditions, or denial of the application to the Board of Trustees.

(d)

Within thirty (30) days of receipt of the Planning Commission recommendation, the Board of Trustees shall approve the application with or without conditions, or deny the application.

(e)

An approved special review use shall not be conducted until the Zoning Administrator has issued a special review use certificate. The certificate shall be issued only after the applicant has entered into an agreement with the Town specifying that all conditions imposed by the Board of Trustees will be completed and that the use and improvements will be in accordance with the approved application site plan and development schedule. The agreement shall be recorded in the office of the County Clerk and Recorder.

(Ord. 209 Art. III §4, 1981; Ord. 645 §10, 2008; Ord. 725 §11, 2013; Res. 2021-06 §10, 2021)

(a)

A special review use application shall be approved only if the Board of Trustees finds that the application:

(1)

Is eligible for a special review under Section 16-32 of this Chapter;

(2)

Is generally compatible with adjacent land uses;

(3)

Meets all requirements of Section 16-52 above, is in compliance with this Chapter and minimizes potential adverse impact of the special review use on adjacent properties and traffic flow;

(4)

Is consistent with the Comprehensive Plan; and

(5)

The Town has the capacity to serve the proposed use with water, sewer, fire and police protection.

(b)

In considering an application for a special review use, the Board of Trustees may impose conditions on the application to ensure compliance with Subsection (a) above.

(c)

All provisions of a special review use shall be recorded in a development agreement. Such agreement shall not be final until the agreement is approved by the Board of Trustees and fully executed by all parties.

(Ord. 209 Art. III §5, 1981; Ord. 382 §4, 1994)

Editor's note— Res. 2021-06 § 11, adopted April 6, 2021, repealed former § 16-56, which pertained to approved site plans part of zoning map; expiration, and derived from Ord. 209 Art. III §6, adopted in 1981; and Ord. 435 §1, adopted in 1996.

(a)

No special review use or site or nonconforming use or site which would have required a special review use may be altered unless such alteration is approved in accordance with the procedures applicable to approval of a special review use as set out in this Article.

(b)

Upon transfer of ownership within the same use, the new owner must agree to and be bound by all provisions documented in the development agreement before the SRU certificate is transferred.

(Ord. 209 Art. III §7, 1981; Ord. 382 §3, 1994; Ord. 645 §11, 2008; Res. 2021-06 §12, 2021)

Editor's note— Res. 2021-06 § 11, adopted April 6, 2021, repealed former § 16-58, which pertained to special review uses existing prior to effective date, and derived from Ord. 209 Art. III §8, adopted in 1981; and Ord. 645 §12, adopted in 2008.

Any person applying to the courts for a review of any decision made under the terms of this Article shall apply for review within thirty (30) days after the date of decision and shall be required to pay the cost of preparing a transcript of proceedings.

(Ord. 209 Art. III §9, 1981)

(a)

In addition to those areas designated as special review uses in Section 16-32, any commercial, industrial or public and quasi-public uses conducted in structures with a floor area of eight thousand (8,000) square feet or larger, or any commercial mixed use with over four (4) residential units, are hereby designated as special review uses.

(b)

Other special review uses include any extension of a structure beyond the roof line which exceeds the building height limit for the zoning district, including but not limited to chimneys, tanks, church spires, belfries, monuments, fire and hose towers, observation towers, transmission towers, flagpoles, commercial radio and television towers, masts, aerials, cooling towers, elevator shafts, ranch and farmer accessory uses and other similar projects.

(Ord. 382 §5, 1994; Ord. 435 §1, 1996; Ord. 645 §13, 2008; Ord. 784 §3, 2018; Res. 2021-06 §13, 2021)

(a)

Upon the Town receiving a written complaint alleging that one (1) or more terms or conditions of a special review use permit or special review use agreement have been or are being violated, or that a special review use is being operated in a manner that violates this Code, or upon request by the Board of Trustees, the Zoning Administrator shall promptly investigate the alleged violation. To conduct his or her investigation, the Zoning Administrator shall have all powers provided by this Code, including but not limited to those set forth in Section 16-271.

(b)

If the Zoning Administrator concludes there is cause to believe a violation of one (1) or more terms or conditions of a special review use agreement or a special review use permit or this Code have been violated, then the matter shall be set for a "show cause" hearing before the Board of Trustees. As used in this Section, cause shall be defined as a reasonable belief based on articulable facts.

(c)

Notice shall be provided by the Town Clerk to the holder of the special review use permit of the "show cause" hearing, advising him or her of the date, time and place of the hearing and specifying the terms and conditions or Code provisions alleged to have been violated. Such notice shall be hand-delivered or mailed by certified mail, return receipt requested, to the holder of the special review use permit at the address indicated in the permit unless the holder of the special review use permit has previously advised the Town Clerk in writing of some other address at which he or she desires to be notified. The date for such hearing shall be no less than thirty (30) days after the date of the notice, unless there is an immediate threat to the public health, safety or welfare, in which case the hearing may be set forthwith.

(d)

At the "show cause" hearing, the Town shall bear the burden of establishing the violation of the terms or conditions or provisions in question by the holder of the special permit by a preponderance of the evidence.

(e)

If, as a result of such hearing, the Board of Trustees determines that the holder of the special review use permit has failed to comply with one (1) or more of the terms or conditions of the special review use permit or agreement or has operated in a manner that violates this Code, then the Board of Trustees shall have the following options, in the discretion of the Board of Trustees:

(1)

Terminate the special review use permit and agreement, in which event the use of the property under the special review use permit shall cease.

(2)

Suspend the special review use permit until the holder is again in compliance with the terms and conditions or provisions in question. No use shall be made of the property during such suspension.

(3)

Modify the special review use agreement on such terms and conditions as the Board of Trustees deems appropriate, including but not limited to restricting the uses that may be made of the property or the portions of the property on which such uses may be made or adding additional terms or conditions to the agreement or permit.

(Ord. 575 §1, 2003; Ord. 591, 2004)