Wheeling City Zoning Code
ARTICLE 1372
Conditional Use Permits
1372.01 GENERAL PROVISIONS.
(a) Purpose. It is the purpose of this article to recognize that there may be cases where community and Comprehensive Plan goals are met by a flexible and individual regulation of land uses on a specific property. The establishment of a conditional use permit procedure provides City of Wheeling with such flexible and individual regulation of uses. This Article’s provisions may not be used to convert a residential structure in a Residential Zoning District when a more appropriate process such as a Zoning Amendment request is otherwise prescribed.
(b) Standards and Requirements. All such uses are declared to possess characteristics of such unique and special form that each specific use must be considered as an individual case. Consideration by the Board of Zoning Appeals (hereinafter BZA) shall be based on adopted standards and requirements. These considerations shall be both general, applying to all conditional uses, and specific, applying to individual types of conditional uses. The standards and requirements stipulated in this article shall be made a condition of approval. In addition, the BZA may impose other pertinent conditions to fit the particular use and site under review.
(Ord. 13707. Passed 11-18-08.)
1372.02 DEFINITION OF CONDITIONAL USE AND CONDITIONAL USE PERMIT.
(a) Definition of Term. The term conditional use permit shall mean an authorization of a particular land use, subject to the satisfaction of all requirements and standards imposed by this section. These requirements shall assure that the proposed use is in harmony with local law and will not adversely affect the neighborhood if such requirements are met. Such conditional use permit, if granted, shall be deemed to affect only the lot or portion thereof for which such conditional use permit has been granted and only for the particular applicant that sought the conditional use in effect.
(b) Limits of Authorization. A conditional use permit shall be deemed to authorize only the particular use specified in the permit to the specific property.
(Ord. 13707. Passed 11-18-08.)
1372.03 APPROVAL OF CONDITIONAL USE PERMITS.
(a) The BZA shall have the power, after public notice and hearing, to grant conditional use permits.
(b) A conditional use permit application may be subject to Article 1373, Site Plan Review depending upon various factors such as expansion of parking on the site where the conditional use is proposed. Should a Site Plan Review be needed, then the Planning Commission shall grant final site plan approval.
(Ord. 13707. Passed 11-18-08.)
1372.04 INTEGRATION WITH OTHER PROCEDURES.
Whenever a particular application requires both the consideration of a conditional use permit and site plan review, the Planning Commission and the BZA shall integrate to the extent practicable and consistent with applicable law conditional use permit review, as required by this article, with the site plan review and approval process. Where site plan review is required, the site plan application shall demonstrate that it meets all conditional permit provisions of this article and must show any other information that the Planning Commission may require as necessary. See Article 1373, Site Plan Review.
(Ord. 13707. Passed 11-18-08.)
1372.05 REQUIRED SUBMISSIONS.
(a) Conditional Permit Application Procedure. The BZA shall review and act on all conditional permit uses in accordance with the procedure specified herein.
(b) Application. All applications shall be in writing, according to rules, regulations, and forms established by the BZA and administered by the Economic and Community Development Department. Application for a conditional use permit shall be made in writing to the Economic and Community Development Department, which shall forward the application to the BZA for action when such application is complete. No application shall be accepted by the BZA unless it is complete.
(c) To be deemed complete, the conditional use permit application should incorporate to the extent necessary, except as may be waived by the BZA on a case-by-case basis due to the minor nature of the specific request, include the items below.
A plot plan which demonstrates the overall site layout and building locations, parking areas and circulation, access and egress locations, setbacks and buffer areas, lighting, landscaping, signage and the location and extent of existing development on adjacent parcels.
Preliminary building plans and elevations illustrating modification and alteration, including an indication of exterior materials, textures and colors.
Any other information deemed helpful by the applicant or necessary by the BZA to explain the nature of the proposed use and its consistency with the standards established by this article for special permit uses.
(d) Fee. Payment of the applicable fee in accordance with the fee schedule established by the City Council, to pay for the costs of planning, design, and engineering review. The City Council shall adopt, by resolution, and from time to time but not more than once annually, a schedule of fees payable by an applicant for applications brought before all boards and commissions for determination or action. No application shall be accepted as complete unless the full fee has been paid.
(e) Decision. Within thirty calendar days of receipt of the complete application, the BZA shall determine if the application is complete and satisfactory for review.
(Ord. 13707. Passed 11-18-08.)
1372.06 GENERAL STANDARDS AS BASIS OF REVIEW.
(a) The BZA shall approve an application for a conditional use permit, subject to such reasonable conditions and restrictions as are directly related to and incidental to the proposed conditional use permit, if it finds that the following general standards have been met:
(1) The structure being considered for a Conditional Use Permit was not constructed to be used as a Permitted Use in the zoning district.
(2) The proposed use is generally compatible with the goals of the adopted comprehensive plan.
(3) The proposed use shall be in harmony with the appropriate and orderly development of the district, taking into consideration the location and size of the use, the nature and intensity of the operations involved in or conducted in connection with such use, the size of the site in relation to the use, the assembly of persons in connection with the use, and the location of the site with respect to streets giving access to the site.
(4) The proposed conditional use shall be such that the use will not hinder or discourage the appropriate development and use of adjacent land and buildings, taking into consideration the location and nature of the use the architecture of the building where the use is proposed in relation to surrounding structures or greenspace, the location, nature, and height of walls and fences, and the nature and extent of landscaping on the site.
(5) Neighborhood character and surrounding property values shall be reasonably safeguarded.
(6) Operations in connection with the use shall not be offensive, dangerous, destructive of property values and basic environmental characteristics, or detrimental to the public interest of the City. They shall not be more objectionable to nearby properties by reason of fumes, noise, vibration, flashing of or glare from lights, and similar nuisance conditions than the operations of any permitted use not requiring a conditional use permit in the district.
(7) Parking areas should be of adequate size for the particular use, properly located, and suitably screened at all seasons of the year from adjoining residential lots and streets or roadways. Adequate provision for safe and accessible off-street parking and loading spaces should be provided to address the parking in public streets of the vehicles of persons associated with or visiting the use.
(8) The entrance and exit drives shall be adequate as to satisfy concerns of public safety and efficient use of the property.
(9) The use shall not cause undue traffic congestion or create a traffic hazard.
(10) The general landscaping of the site shall be in character with that generally prevailing in the neighborhood. Such landscaping shall include the preservation of existing trees to the extent practicable.
(11) The proposed use must be appropriately located with respect to fire and police protection, waste disposal, and similar facilities and services, depending upon the nature of the conditional use.
(12) The character and appearance of the proposed use, buildings, structures, and/or outdoor signs shall be in general harmony with the character and appearance of the surrounding neighborhood.
(13) The use shall make a good faith effort to meet the prescribed requirements for the district in which located or as further specified in the supplementary regulations for such matters as required off- street parking, and sign regulations. These requirements may be evaluated by the BZA on a case- by-case basis or by a request for a variance from the BZA.
(14) The level of services required to support the proposed activity or use is or will be available to meet the needs of the proposed activity or use. This consideration shall include the suitability of water supply and sanitary sewage facilities, whether private or publicly provided, to accommodate the intended use.
(15) The use shall be carried out in a manner compatible with its environmental setting and with due consideration to the protection of natural resources.
(16) The proposed use has no adverse effect on the public health, safety, and welfare.
(b) Other Conditions and Restrictions.
(1) The BZA shall have the authority to impose such reasonable conditions and restrictions as are directly related to and incidental to the proposed conditional use permit.
(2) The BZA shall require additional conditions and restrictions as may be necessary to assure continual conformance to all permit provisions.
(c) Waiver of Conditions and Restrictions.
(1) The BZA may waive any dimensional or other requirement for the approval or approval with modifications of conditional use permits, due to special conditions peculiar to the site. Such waiver may be exercised in the event a requirement is found to be inappropriate or unnecessary or that strict compliance with said requirements may cause extraordinary and unnecessary hardship. The BZA may waive said requirements wherever, in the opinion of the BZA, such waiver will not be detrimental to the public health, safety, or general welfare or have the effect of nullifying the intent and purpose of this article.
(2) The terms and conditions of a conditional use permit may be modified by application to the BZA in the same manner as an application for a new conditional use permit. In the event that the modification sought is deemed insubstantial by the BZA, the Board may waive one or more of the requirements of this section. If the modification is deemed substantial, a new conditional use permit shall be required.
(d) Issuance of Permit. Upon its granting of said conditional use permit, any required terms and conditions must be met in connection with the issuance of permits by applicable agents or officers of the city. The Building Inspector shall not issue the permit for which the application has been made until receipt of written permit approval from the BZA.
(e) Conditional Use Permits - Specific to the Applicant. The conditions placed upon an application for a conditional use expire if the original applicant ceases to operate or utilize the premises as provided in the conditional use application as approved by the BZA. There is no “grandfathering” provisions applicable to a Conditional Use Permit as described in this section.
(Ord. 13707. Passed 11-18-08.)
1372.07 PUBLIC HEARING.
(a) The BZA shall conduct a public hearing on the conditional use permit application.
(b) Upon the Planning Administrator’s determination that the conditional use permit application is complete and satisfactory for review, a public hearing shall be scheduled by the BZA. At least ten calendar days prior to the date set for the hearing, the BZA shall publish a notice of the date, time, and place of the hearing in a newspaper of general circulation in the city, shall mail notice of said hearing to the applicant, and shall mail notice of said hearing to all property owners within at least two hundred feet of the subject property.
(c) Based on the public hearing, the BZA may require the application to be revised, referring the applicant back to the Economic and Community Development Department. Such a referred application shall be submitted to the Economic and Community Development Department for its review and advice once the application has been revised to meet the Board's recommendations. The Economic and Community Development Department shall then forward the revised application to the BZA for decision and action. If a referred application is not received by the Economic and Community Development Department within sixty calendar days after the public hearing, the application shall be deemed to be withdrawn.
(d) The City shall charge the applicant either a flat rate or a stated amount per notice for satisfying this requirement.
(e) The names and addresses of owners notified shall be taken as such appear on the last completed tax roll of the City.
(f) Provided that there has been substantial compliance with these provisions, the failure to give notice in exact conformance herewith shall not be deemed to invalidate an action taken by the BZA in connection with granting or denying a special permit application.
(Ord. 13707. Passed 11-18-08.)
1372.08 BOARD OF ZONING APPEALS ACTION.
(a) After the public hearing or after a revised application has been submitted, the BZA shall render a decision.
(b) The BZA shall act to either approve, approve with modifications, or disapprove the conditional use permit application. The decision shall be made by motion and shall clearly state the decision, including the findings, and any conditions attached thereto. If the conditional use permit is disapproved, the Board’s motion shall state specific reasons for such decision. In such a case, the BZA may recommend further study of the conditional use permit application and resubmission to the BZA after it has been revised.
(c) Filing of decision and notice. The decision shall be deemed entered at the meeting wherein the minutes reflecting the outcome of the public hearing and the final decision of the BZA are accepted. A certified or endorsed copy of the decision shall be filed in the office of the City Clerk along with the complete record of the application, including any tape recordings made thereof.
(Ord. 13707. Passed 11-18-08.)
1372.09 EFFECT OF CONDITIONAL PERMIT APPROVAL.
(a) Issuance of Building Permit. In addition to compliance with all other applicable provisions of this chapter and all other local, county and state laws, rules and regulations, no building permit shall be issued for any structure regulated by this article until such conditional use permit, and site plan approval if needed, have received approval and a copy of documentation to that effect has been presented to the Economic and Community Development Department and Building Department.
(b) Certificate of Occupancy. No certificate of occupancy shall be issued for any structure or use of land covered by this chapter unless such is in strict accordance with the BZA’s decision regarding the conditional use permit approval and other applicable requirements of this chapter.
(Ord. 13707. Passed 11-18-08.)
1372.10 VIOLATION, EXPIRATION, REVOCATION, INSPECTION, CHANGE, AND RENEWAL.
(a) Violation. No permit shall be issued for a conditional use for a property or site upon which there is an existing violation of this or any other chapter of the City of Wheeling code.
(b) Expiration of Conditional Use Permit.
(1) A conditional use permit shall be void if renovations are not started within six months and completed within one year of the date of issuance of the conditional use permit. Such conditional use permit approval may be extended once for a maximum period of one year from its otherwise specified termination date by the BZA upon prior written request by the applicant. Such written request must include a statement of justification for the requested time extension.
(2) If no renovations are involved, a conditional use permit shall be void if the use has not commenced within six months of final conditional permit approval.
(3) Unless other provisions are specifically set forth by the BZA, the conditional permit shall expire if said use shall substantially or totally cease for a period of six months during any twelve-month period, irrespective of whether an intent to cease such use may exist. Intent to resume the conditional use shall not confer the right to do so. See also Section 1372.06(e) regarding cessation of use.
(c) Revocation. In all cases, including those cited above, a conditional use permit may be revoked by the BZA, if it is found and determined that there has been a substantial failure to comply with any of the terms, conditions, limitations, restrictions, standards, and requirements imposed by said permit. The Building Inspector shall make a recommendation to the BZA when a conditional use permit should be revoked. The permit may also be revoked if the BZA is made aware by the Planning Administrator that the applicant had made materially false statements during the application process or presented information to the BZA that the Board finds at a later date to be inaccurate, untrue or misleading. In such cases, the conditional permit holder shall be granted a period of sixty calendar days from the day following the Planning Administrator or the Building Inspector's recommendation to bring the conditional use into full compliance. At the close of the sixty-day period if there still remains issues of non-compliance as described herein, then the BZA shall hold a public hearing. After the public hearing and upon specific determination by the BZA that such conditions as may have been prescribed in conjunction with the issuance of the original permit have not been or are no longer being complied with, the Board may revoke the permit.
(d) Inspection. In connection with the issuance of a conditional permit, the BZA may establish a schedule of inspections by the Planning and Zoning Department of a conditional permit use to determine continued compliance.
(Ord. 13707. Passed 11-18-08.)
1372.11 CONSULTATION WITH OTHER AGENCIES, DEPARTMENTS AND CONSULTANTS.
In its review of an application for conditional use permit, the BZA may consult with City officials, agencies, and its designated private consultants, and with representatives of local, state, and federal agencies including but not limited to the State Department of Transportation, the State Health Department, the Department of Environmental Conservation, and the Army Corps of Engineers, as needed.
(Ord. 13707. Passed 11-18-08.)
1372.12 REIMBURSABLE COSTS.
Reasonable costs incurred by the BZA for private consultation fees or other extraordinary expense in connection with the review of a conditional use permit application may be charged to the applicant. Such reimbursable costs shall be in addition to the required application fee.
(Ord. 13707. Passed 11-18-08.)
1372.13 PROVISIONS ADOPTED PURSUANT TO PILOT HOME RULE AUTHORITY - SUNSET/CONTINUATION PROVISION.
Certain provisions of the Codified Ordinances of the City of Wheeling found in this Article, being Part Thirteen-Planning and Zoning Code were adopted pursuant to the authority granted to the municipality under the Pilot home Rule authority found in West Virginia Code § 8-1-5a passed by the West Virginia Legislature in 2007. Therefore, any actions begun during the Pilot Program period, pursuant to Ordinances adopted by the municipality under its Home Rule Authority, shall remain in full force and effect throughout all proceedings initiated within the five (5) year initial time frame given to the Pilot Home Rule municipalities to enact legislation. Similarly, should any future deadline be set by the legislature for the extinguishing of the Pilot Home Rule Authority found in West Virginia Code § 8-1-5a, all proceedings or actions exercising the Home Rule Authority found in said section initiated prior to such deadline shall remain in full force and effect throughout such proceedings or actions. Should the legislature extend the Home Rule Authority so that the initial period of five (5) years does not sunset, then the powers of the City of Wheeling pursuant to its Home Rule Authority and the provisions adopted under such authority shall continue and remain in full force and effect.
(Ord. 13707. Passed 11-18-08.)