This Zoning Code, consisting of this text document and the accompanying Official Zoning Map, as amended, may be cited as the "Official Zoning Code of the City of Wilmington, Ohio," or referred to as the "Zoning Code" or the "Zoning Ordinance" to the same effect.

(Ord. No. O-18-68, § 3(Exh. A), 12-20-18)

The purpose of this Zoning Code shall be to promote the public health, safety, morals, and general welfare of the City of Wilmington, referred to as the "City," and the residents thereof.

(Ord. No. O-18-68, § 3(Exh. A), 12-20-18)

(a)

The provisions of this Zoning Code shall apply to all land, land development, use of all structures, and uses of land within the incorporated area of Wilmington, Ohio.

(b)

When a parcel of land is partially located within another jurisdiction, outside of the municipal corporation, this Zoning Code shall only apply to that portion of the parcel that is within the municipal corporation.

(Ord. No. O-18-68, § 3(Exh. A), 12-20-18)

The Mayor's office is directed to keep on file at least two copies of the Zoning Code and all ordinances amendatory thereto, and the Zoning Code shall be available for public inspection during all regular office hours.

(Ord. No. O-18-68, § 3(Exh. A), 12-20-18)

(a)

The specifications in this Zoning Code shall be held to be the minimum requirements for the promotion of the public health, safety, comfort, morals, prosperity, convenience and general welfare, with the intent to achieve the purposes stated in Ohio R.C. 713, et seq., or as may be amended.

(b)

The City Planning Commission has given consideration to the future probable use of land in the territory affected by this Zoning Code, and has prepared a Comprehensive Plan showing the future development of the City of Wilmington, which has served as a guide in the preparation of this Zoning Code.

(c)

When the provisions of this Zoning Code are inconsistent with one another or with the provisions found in another adopted ordinance, the most restrictive provision shall govern as determined by the Zoning Administrator.

(d)

Where this Zoning Code imposes a greater restriction than imposed or required by other provisions of law or by other rules, regulations, or ordinances, the provisions of this Zoning Code shall control provided it complies with the Ohio Revised Code and any state or federal laws that may preempt this Zoning Code.

(Ord. No. O-18-68, § 3(Exh. A), 12-20-18)

(a)

This Zoning Code is not intended to interfere with or repeal any easements, covenants, or agreements between parties, provided that wherever this Zoning Code proposes a greater restriction upon the use of buildings or land, upon the location or height of buildings or structures, or upon requirements for open areas than those that are imposed or required by such easements, covenants, or agreements between parties, the provision of this Zoning Code shall govern.

(b)

In no case shall the City be obligated to enforce the provisions of any easements, covenants, or agreements between private parties except for those that may be held by the City. As such, the Zoning Administrator cannot use the regulations of a private party agreement to deny a zoning permit when the proposed use, structure, or building meets the requirements of this Zoning Code.

(Ord. No. O-18-68, § 3(Exh. A), 12-20-18)

(a)

It shall be unlawful for an owner to use or to permit the use of any structure, building or land, or part thereof, hereafter erected, created, changed, converted or enlarged, wholly or partly, until a zoning permit is issued by the Zoning Administrator in accordance with Section 1135.04 (Zoning permit application).

(b)

Such zoning permit shall state that such building, premises or a part thereof, and the proposed use thereof, are in conformity with the provisions of this Zoning Code.

(Ord. No. O-18-68, § 3(Exh. A), 12-20-18)

(a)

If any court of competent jurisdiction invalidates any provision of this Zoning Code, then such judgment shall not affect the validity and continued enforcement of any other provision of this Zoning Code.

(b)

If any court of competent jurisdiction invalidates the application of any provision of this Zoning Code to a particular property, structure, or situation, then such judgment shall not necessarily affect the application of that provision to any other building, structure, or situation not specifically included in that judgment.

(c)

If any court of competent jurisdiction judges invalid any condition attached to the approval of a development review application, then such judgment shall not necessarily affect any other conditions or requirements attached to the same approval that are not specifically included in that judgment.

(d)

Whenever a condition or limitation is included in an administrative action authorizing regulatory activity, then it shall be conclusively presumed that the administrative authority, such as an officer, commission, or Board, considered such condition or limitation necessary to carry out the spirit and intent of this Zoning Code, and that the officer, commission, or Board would not have granted the authorization to which the condition or limitation pertained except in belief that the condition or limitation was lawful.

(Ord. No. O-18-68, § 3(Exh. A), 12-20-18)

(a)

Effective date. This Zoning Code became effective on January 20, 2019.

(b)

Violations continue. Any violation under previous Zoning Ordinances that existed in the City prior to the adoption of this Zoning Code shall continue to be a violation under this Zoning Code and is subject to penalties and enforcement under Section 1135.14 (Violations and penalties), unless the use, development, construction, or other activity complies with the provisions of this Zoning Code.

(c)

Non-conformities continue.

(1)

Any legal non-conformity that exists at the time of the enactment of this Zoning Code shall continue to be a legal non-conformity under this Zoning Code, as long as the situation that resulted in the non-conforming status under the previous Zoning Ordinance continues to exist. Such non-conformities shall be subject to the provisions of Section 1135.13 (Non-Conformity Provisions).

(2)

If a legal non-conformity that exists at the time of the enactment of this Zoning Code becomes conforming because of the adoption of this Zoning Code, then the situation will be considered conforming and shall no longer be subject to the non-conformities regulations of Section 1135.13 (Non-conformity provisions).

(d)

Approved projects.

(1)

Any building, structure, or development for which a zoning permit, conditional use approval, or variance approval was issued prior to the effective date of this Zoning Code may, at the applicant's option, be completed in conformance with the issued permit or approved use along with any other applicable permits and conditions, even if such building, structure, or development does not fully comply with the provisions of this Zoning Code. Such building, structure, or development shall be considered a legal non-conforming use upon the issuance of a Certificate of Occupancy from the Building Department.

(2)

If the building or structure is not completed within the time allowed under the original zoning permit, conditional use approval, or variance approval or any extension granted thereof, then the building, structure, or development may be constructed, completed, or occupied only in compliance with this Zoning Code.

(3)

Any application for a project where the zoning permit, conditional use approval, or variance approval has expired shall meet the standards in effect at the time of re-application.

(4)

Any development application approved as part of a Planned Development (PD) prior to the effective date of this Zoning Code shall continue to be valid and shall remain under the provisions of the applicable set of zoning standards established for the PD, until such time when an approved PD is proposed to undergo a major modification, pursuant to Section 1135.10(m)(3)a, in which case the PD must be re-established as a new PUD overlay district following the procedures and standards established in Section 1135.10 (Planned Unit Developments). Minor modifications to previously-approved PDs may be reviewed and approved by the Zoning Administrator.

(Ord. No. O-18-68, § 3(Exh. A), 12-20-18)

The burden of demonstrating that an application or any development subject to this Zoning Code complies with the applicable review and approval standards is to be borne by the applicant. Neither the City, nor any other party shall have any burden to show that the standards set forth in the Zoning Code have or have not been met by the applicant, or any person responsible for the proposed development.

(Ord. No. O-18-68, § 3(Exh. A), 12-20-18)

Where a conflict occurs or appears to occur between a provision in the text and any graphic, illustration or figure, the text shall control.

(Ord. No. O-18-68, § 3(Exh. A), 12-20-18)

The purpose of this chapter is to identify the roles and responsibilities of various elected and appointed Boards, as well as the duties of City staff, in the administration of this Zoning Code.

(Ord. No. O-18-68, § 3(Exh. A), 12-20-18)

(a)

City Council. For the purpose of this Zoning Code, the Wilmington City Council shall have the following duties:

(1)

Initiate proposed text and map amendments to this Zoning Code;

(2)

Review and decide on all proposed zoning text and map amendments to this Zoning Code;

(3)

Review and decide on all PUD applications which are a legislative matter;

(4)

Perform all other duties as may be specified elsewhere in this Zoning Code.

(b)

Planning Commission. City Council, for the purpose and intent of this Zoning Code and in accordance with Ohio R.C. 713, hereby creates and establishes the Wilmington City Planning Commission, hereafter referred to as the Planning Commission.

(1)

Appointment and organization.

a.

The Planning Commission shall be composed of the following seven members, or if not consistent with current state statute shall be established in accordance with Ohio R.C. 713.01 as amended:

1.

The Mayor;

2.

The Director of Public Service;

3.

The President of the Board of Park Commissioners; and

4.

Two citizens of the municipal corporation and two public members, where all four are to be appointed by the Mayor, each serving six year terms, with the term of one citizen member expiring each year. Public members need not be residents of the municipal corporation but shall be residents of Clinton County or a township adjacent to Clinton County.

b.

Each member shall serve until his or her successor is appointed and qualified. Members may be reappointed.

c.

Vacancies shall be filled by appointment by the Mayor and shall be for the time remaining in the unexpired term.

d.

Members of the Planning Commission shall be removable for nonperformance of duty, misconduct in office, or other cause, by City Council, upon written charges being filed, and after a public hearing has been held regarding such charges, a copy of charges having been served upon the member so charged at least ten days prior to the hearing, either personally or by registered mail, or by leaving the same at the member's usual place of residence. The member shall be given the opportunity to be heard and answer such charges.

(2)

Roles and powers.

a.

Convene public meetings or hearings to:

1.

Make requests to City Council for initiation of proposed text or map amendments to the Zoning Code;

2.

Review and make recommendations to City Council on all proposed zoning text and map amendments to this Zoning Code pursuant to Section 1135.09 (Zoning text and map amendments); and

3.

Review and make recommendations on PUD applications, and make decisions on Final PUD Plans.

4.

Review and decide on all site plan review applications.

5.

Review and decide on all major subdivision applications pursuant to Title One (Subdivision regulations) of the Wilmington Planning and Zoning Code.

6.

Review and decide on all certificate of appropriateness applications pertaining to the Commercial Historic (H-1) Overlay District.

b.

Perform all other duties as specified for Planning Commissions in Ohio R.C. 713 and as specified in this Zoning Code.

(3)

Alternates.

a.

The Planning Commission may appoint two or more alternate members for a term of six years each.

b.

An alternate member may take the place of an absent regular member at any meeting of the Planning Commission. An alternate member shall not take the place of an absent regular member if such alternate has not been present to hear all testimony regarding the matter at hand.

c.

Whenever an alternate takes the place of an absent regular member in a matter that requires a vote, the alternate member shall take the place of the absent regular member for all meetings and hearings related to such issue.

d.

An alternate member shall meet the same appointment criteria as a regular member.

e.

When attending a meeting on behalf of an absent regular member, the alternate member may vote on any matter on which the absent member is authorized to vote.

(4)

Rules. The Planning Commission may organize and adopt the rules for it to operate in keeping with Ohio R.C. Chapter 713, or as amended, and elect the Chair and Vice Chair persons from its members as membership changes and/or upon call of the commission through a motion.

(5)

Meetings.

a.

Meetings shall be held at the call of the Chair, Vice Chair, or acting Chair, and at such other times as the Commission may determine. The Chair, or, if absent, the Vice Chair or acting Chair as otherwise determined by the Commission, may call a meeting to order.

b.

All meetings shall be open to the public, except as exempted by law.

c.

The Planning Commission shall keep minutes of its proceedings showing the vote, indicating such fact, and shall keep records of its examinations and other official actions all of which shall be a public record, unless exempted by law, and be filed in a timely manner in the City offices.

(6)

Quorum.

a.

Any combination of four regular or alternate members of the Planning Commission shall constitute a quorum.

b.

The Planning Commission shall act when a majority of a quorum concurs and every decision shall be accompanied by written findings specifying the reason for granting or denying the application, or making its recommendation.

(c)

Board of Zoning Appeals. City Council, for the purpose and intent of this Zoning Code and in accordance with Ohio R.C. 713.11, hereby creates and establishes the City of Wilmington Board of Zoning Appeals, hereafter referred to as the BZA.

(1)

Appointment and organization.

a.

The BZA shall consist of five members, to be appointed by the Mayor.

b.

Members shall be residents of the municipal corporation.

c.

Members shall not hold any other elective or appointive office.

d.

Members shall serve four year terms with the term of one member expiring each year on January 1.

e.

Each member shall serve until their successor is appointed and qualified. Members may be reappointed.

f.

Vacancies shall be filled by appointment by the Mayor and shall be for the time remaining in the unexpired term.

g.

Members of the BZA shall be removable for nonperformance of duty, misconduct in office, or other cause, by City Council, upon written charges having been filed, and after a public hearing has been held regarding such charges, a copy of the charges having been served upon the member so charged at least ten days prior to the hearing, either personally or by registered mail, or by leaving the same at the member's usual place of residence. The member shall be given an opportunity to be heard and answer such charges.

(2)

Roles and powers.

a.

Convene public meetings or hearings to:

1.

Hear and decide appeals where it is alleged there is error in any order, requirement, decision, or determination made by the Zoning Administrator in the enforcement of this Zoning Code;

2.

Authorize, upon appeal, in specific cases, such variance from the terms of the Zoning Code as will not be contrary to the public interest, where, owing to special conditions, a literal enforcement of this Zoning Code will result in unnecessary hardship, and so that the spirit of the Code shall be observed and substantial justice done;

3.

Approve or deny issuance of a zoning permit for a conditional use specified in this Code;

4.

Approve or deny zoning permit requests for completion, restoration, reconstruction, in whole or in part, extension, or substitution of a non-conforming use or structure;

5.

Determine if the event arises, as specified in Section 1151.02 (District Boundaries Location and Interpretation), the certain location of a zoning district boundary that is in question or dispute for purposes of regulation in accordance with this Zoning Code; and

6.

Make a determination as to whether a use not listed in Sections 1141.01(b) (Principal Uses Not Listed), 1143.01(b) (Accessory Uses Not Listed) or 1145.02 (Table of Temporary Uses), as applicable, shall be allowed as a permitted or conditional use or otherwise prohibited.

b.

In exercising the above-mentioned powers, the BZA may, in conformity with such sections, reverse or affirm, wholly or partly, or may modify the order, requirement, decision, or determination appealed from, and may make such order, requirement, decision, or determination as ought to be made, and to that end has all powers of the administrative official from whom the appeal is taken.

c.

All other powers conferred upon Boards of zoning appeals in Section 713.11 of the ORC, or as authorized by City Council in compliance with state law.

(3)

Alternates.

a.

The Mayor may appoint up to two alternate members to the BZA for a term of four years each.

b.

An alternate member may take the place of an absent regular member at any meeting of the BZA. An alternate member shall not take the place of an absent regular member if such alternate has not been present to hear all testimony regarding the matter at hand.

c.

Whenever an alternate takes the place of an absent regular member in a matter that requires a vote, the alternate member shall take the place of the absent regular member for all meetings and hearings related to such issue.

d.

An alternate member shall meet the same appointment criteria as a regular member.

e.

When attending a meeting on behalf of an absent regular member, the alternate member may vote on any matter on which the absent member is authorized to vote.

(4)

Rules.

a.

The BZA may organize and adopt the rules for it to operate in keeping with Ohio R.C. 713.11, or as amended. Such rules and regulations shall be subject to approval by City Council.

b.

The BZA may annually elect the Chair and Vice Chair persons from its members.

c.

The Public Service Director shall designate someone to serve as Secretary.

(5)

Meetings.

a.

Meetings of the BZA shall be held at the call of the Chair and at such other times as the BZA may determine.

b.

The Chair, or in their absence, the Vice Chair or acting Chair, may administer oaths and the BZA may compel the attendance of witnesses.

c.

A member shall not hear an appeal in which that member has a personal, professional or financial interest.

d.

The appellant, the appellant's representative, the Zoning Administrator, Building Inspector or other Code Official, and any person whose interests are affected shall be given an opportunity to be heard.

e.

All meetings of the BZA shall be open to the public, except as exempted by law.

f.

The BZA shall keep minutes of its proceedings showing the vote, indicating such fact, and shall keep records of its examinations and official actions, all of which shall be filed in a timely manner in the City offices and shall be a public record, unless exempted by law.

(6)

Quorum.

a.

Any combination of three regular or alternate members of the BZA shall constitute a quorum.

b.

The BZA shall act when a majority of a quorum concurs. Every decision shall be accompanied by written findings of fact, based on testimony and evidence and specifying the reason for granting or denying the application.

c.

When any member is not present to hear an appeal, either the appellant or the appellant's representative shall have the right to request a postponement of the hearing.

(d)

Zoning administrator. A Zoning Administrator, as designated by the Mayor, along with any assistant(s) as deemed necessary, shall be responsible for administering and enforcing this Zoning Code. In the absence of a designated Zoning Administrator, the City Planner, the City Building Inspector, the Code Enforcement Officer, the Director of Public Service, or a combination of these individuals, may fulfill the duties and responsibilities of the Zoning Administrator.

(1)

Roles and powers.

a.

Maintain the Zoning Code text and map, and the record of all amendments thereto.

b.

Provide information regarding the Zoning Code and all related matters so involving.

c.

Assist applicants for a zoning permit, site plan review, conditional use, variance, rezoning, or other zoning matter by explaining how to complete required applicable forms and procedures.

d.

Review proposed subdivision plats and parcel splits submitted for approval to the Planning Commission, or as otherwise submitted for recording not needing Planning Commission approval, to determine compliance with the requirements of this Code.

e.

Review zoning permit applications, ensuring compliance with the requirements of this Code, as well as any additional applicable case-specific conditions, and accordingly, either approve or deny said permit and maintain record thereof.

f.

Perform periodic inspections of zoning permit sites to confirm that requirements are being met.

g.

Investigate complaints of alleged zoning violations as specified in this Code.

h.

Process, and maintain record of all zoning violations as specified in this Code. Issue written order via certified mail to the person(s) responsible for said zoning violation(s), to discontinue use of any land, building or structure, and/or to stop work and/or remove any building or structure, in whole or in part, that has been found in violation of any requirement(s) of this Zoning Code, informing them of their right to appeal the order should they might otherwise object or refuse to comply with said order.

i.

Maintain records of legal non-conforming uses, structures, and lots that existed before the effective date of this Zoning Code and update the record as necessary when applicable conditions or amendments of the Zoning Code eliminate the nonconforming status.

j.

Forward complete applications submitted in accordance with this Code for zoning cases requiring review and recommendation and/or action in determination of approval, denial or modification to the Planning Commission, Board of Zoning Appeals, or City Council as required by this Zoning Code.

k.

Schedule, attend, and provide information for Planning Commission and BZA meetings and attend and provide information at City Council meetings involving zoning matters.

l.

Maintain public records regarding all zoning matters, inclusive of all information submitted and formal decisions made regarding each case.

m.

Make grammatical, numerical, and section reference corrections to the Zoning Code as may be needed; in these cases, such changes shall not be subject to the review process of Section 1135.09 (Zoning Text or Map Amendments) provided that such changes do not alter the meaning of the Code.

n.

Perform other related duties as required to administer and enforce this Zoning Code.

(Ord. No. O-18-68, § 3(Exh. A), 12-20-18)

(a)

Section 1133.03 (c) (Summary Table of Review Bodies and Procedures) summarizes the review and decision-making responsibilities of the entities that have roles in the procedures as set forth in Title 5, Chapter 1135 (Zoning Enforcement). This table does not limit or impede the ability of other boards, commissions, government agencies, or other non-government organizations to review applications.

(b)

The following are symbols and associated meanings which are used in Section 1133.03(c):

(c)

Summary table of review bodies and procedures.

* Legislative Procedure

** Administrative Procedure

*** Quasi-Judicial Procedure

(Ord. No. O-18-68, § 3(Exh. A), 12-20-18; Ord. No. O-21-30, § 1, 8-5-21)

This chapter specifies the applications and procedures by which requirements of the Zoning Code are enforced, pursuant to and in accordance with the Ohio Revised Code. Enforcement measures applied in the event of a violation are described, along with potential recourse or relief by variance or appeal from requirements of the Code.

(Ord. No. O-18-68, § 3(Exh. A), 12-20-18)

The requirements of this section shall apply to all review applications and procedures required by this Zoning Code, inclusive of those outlined in Sections 1135.04 through 1135.12, unless otherwise stated.

(1)

Authority to file applications.

a.

The person having legal authority to take action in accordance with the approval sought shall file an application for any review in accordance with this Zoning Code. The person having legal authority shall be:

1.

The owner of the property that is the subject of the application; or

2.

A lessee of the property that is the subject of the application; or

3.

The owner or lessee's authorized agent.

b.

When a lessee or authorized agent files an application under this Zoning Code, the property owner shall be required to sign the application, which shall bind all decisions, and related conditions of approval, to the owner of the property.

c.

City Council may initiate zoning text and map amendments under this Zoning Code, with or without an application from a property owner who may be affected. The Planning Commission may also submit a request to City Council to initiate a zoning text or map amendment, with or without an application from a property owner who may be affected.

(2)

Application contents.

a.

Submittal requirements. Applications required under this Zoning Code shall be submitted in a form and in such numbers as established by the Building Department and made available to the public. A list of submittal requirements shall be available at the office of the Zoning Administrator.

b.

Complete application determination.

1.

The Zoning Administrator shall only initiate the review and processing of applications submitted in accordance with this chapter if such application is determined to be complete.

2.

The Zoning Administrator shall make a determination of application completeness within ten business days of the application filing.

3.

If the application is determined to be complete, the application shall then be processed according to the procedures set forth in this Zoning Code.

4.

If an application is determined to be incomplete, the Zoning Administrator shall provide notice to the applicant along with an explanation of the application's deficiencies. No further processing of an incomplete application shall occur until the deficiencies are corrected in a future re-submittal application.

5.

If the applicant fails to re-submit a complete application within 60 days, the original fee shall be forfeited and the applicant shall be required to submit a new application including fees.

6.

If any materially false or misleading information is submitted or supplied by an applicant on an application, that application shall be deemed incomplete.

c.

Submission of fees.

1.

City Council shall by Ordinance establish a schedule of fees for amendments, zoning permits, certificates of occupancy, appeals, variances, conditional use permits, plan approvals, and other procedures and services pertaining to the administration and enforcement of this Zoning Code. The schedule of fees shall be posted in the office of the Zoning Administrator and may be altered or amended only by City Council.

2.

Each application specified necessary in this chapter for zoning enforcement is to be accompanied by the fee required when submitted to the Zoning Administrator for filing and processing.

3.

Until all such application fees, charges and expenses have been paid in full, no action shall be taken on any application, appeal or other administrative or legislative procedure.

d.

Refund of fees. Application or review fees are not refundable except where the Zoning Administrator determines that an application was accepted in error, or the fee paid exceeds the amount due, in which case the amount of the overpayment shall be refunded to the applicant.

(3)

Simultaneous processing of applications. Whenever two or more forms of review and approval are required under this Zoning Code, the Zoning Administrator shall determine the order and timing of review. The Zoning Administrator may authorize a simultaneous review of applications.

(Ord. No. O-18-68, § 3(Exh. A), 12-20-18)

(a)

Content. Notices for public hearings, whether by publication or mail (written notice), shall, at a minimum:

(1)

Identify the application. Identify the address or location of the property subject to the application and the name, address, and telephone number of the applicant or the applicant's agent.

(2)

Specify the date, time, and place of the public hearing. Indicate the date, time, and place of the public hearing.

(3)

Describe the subject property. Describe the land involved by street address, or by legal description and the nearest cross street, and project area (size).

(4)

Describe the nature and scope of the application. Describe the nature, scope, and purpose of the application or proposal.

(5)

Notify the public where to view the application. Identify the location (e.g., the Building Department) where the public may view the application and related documents.

(6)

Notify the public where they may be heard. Include a statement that the public may appear at the public hearing, be heard, and submit evidence and written comments with respect to the application.

(7)

Allow for written comments. Include a statement describing where written comments will be received prior to the public hearing.

(b)

Notice requirements. Published and mailed notice for public hearings shall be provided as defined in the table below. Applications for development approval that require public hearings shall comply with the applicable Ohio Revised Code requirements.

(c)

Published notice. When the provisions of this Zoning Code require that notice be published, the agency responsible for notification shall prepare the content of the notice and publish the notice in a newspaper of general circulation. The content and form of the published notice shall be consistent with the requirements of Section 1135.03(a) (Content) and state law.

(d)

Written notice.

(1)

It shall be the duty of the applicant to furnish the Building Department with the names and addresses of the owners of all properties adjacent to the subject property.

(2)

The Building Department shall notify the owners of property adjacent to the subject property by regular mail, of information required in Section 1135.03(a) (Content) and state law.

(3)

Written notice to adjacent property owners shall be postmarked no later than the minimum number of days required in Section 1135.03(b) (Notice Requirements).

(e)

Constructive notice.

(1)

Minor defects in any notice shall not impair the notice or invalidate proceedings pursuant to the notice if a bona fide attempt has been made to comply with applicable notice requirements. Minor defects in notice shall be limited to errors in a legal description, typographical or grammatical error, or errors of actual acreage that do not impede communication of the notice to affected parties. Failure of a party to receive written notice shall not invalidate subsequent action. In all cases, however, the requirements for the timing of the notice and for specifying the time, date, and place of a hearing shall be strictly construed. If questions arise at the hearing regarding the adequacy of notice, the decision-making body shall direct the agency having responsibility for notification to make a formal finding as to whether there was substantial compliance with the notice requirements of this Zoning Code, and such finding shall be made available to the decision-making body prior to final action on the request.

(2)

When the records of the City document the publication, mailing, and posting of notices as required by Section 1135.03 (Public Notification for Public Hearings), it shall be presumed that notice of a public hearing was given as required.

(Ord. No. O-18-68, § 3(Exh. A), 12-20-18)

(a)

Purpose. A zoning permit shall be required in accordance with the provisions of this section in order to ensure that proposed development complies with the standards of this Zoning Code, and to otherwise protect the public health, safety, and general welfare of the citizens of the City.

(b)

Applicability.

(1)

A zoning permit shall be required for any of the following:

a.

New construction of structural alteration of any building or structure, including principal structures, accessory structures, and temporary use structures;

b.

Occupancy and use of vacant land;

c.

New construction or alteration of a permanent or temporary sign, in accordance with the provisions of Title 11 Chapter 1173 (Signs).

(2)

The Zoning Administrator shall issue a zoning permit for a conditional use only following receipt of notice from the Board of Zoning Appeals that the application has been approved by the Board.

(3)

An application for a zoning permit prepared in satisfaction with the requirements of Section 1135.04(c) (Permit Application Requirements) shall be submitted to and approved by the Zoning Administrator before the owner(s) of property or the agent(s) acting in their behalf commence any change in use or places or begins to erect, construct, reconstruct, enlarge, or alter any building or other structure. Zoning Code compliance must be determined by the Zoning Administrator prior to the issuance of a zoning permit.

(4)

A zoning permit is not required for any of the following:

a.

Change in the ownership of any land or structure;

b.

Exterior or interior maintenance and repair of any existing use structure, provided there is no expansion of the building footprint (although exterior changes may be subject to approval of a Certificate of Appropriateness if the property is located within the H-1 Overlay District);

c.

Interior alteration of a building used for an approved principal or accessory use;

d.

Re-occupancy of any building or re-use of any structure with a previously permitted use;

e.

A change of occupancy to another permitted use, provided no modification of the site is proposed or required by the standards of this Code, such as an increase in the number of required parking spaces or sufficient landscaping/buffering, and that such change maintains compliance with all applicable requirements of this Code - in such cases, a Certificate of Occupancy shall be required.

(c)

Permit application requirements. The following contents and information must be submitted to the Zoning Administrator for evaluation, unless the Zoning Administrator determines that certain information is not necessary to meet the intent of this section:

(1)

Plot plan. Two copies of a plot plan, drawn to scale, shall be provided and shall express the following information:

a.

Accurate dimensions of the boundary lines (based on a recorded survey), legal description, and square footage or acreage of the site;

b.

The location of each existing and proposed structure, with notation of the type and size (square footage area and outer wall footprint dimensions as applicable) of each structure;

c.

Indication of the respective distances in feet from the outermost edges of each existing and proposed structure to property lines;

d.

Identification of any existing structures to be removed;

e.

The total height of the proposed structure, and number of stories;

f.

If proposing residential structure(s), the number of dwelling unit(s) within each, total living space by floor (square footage), and the number and size of bedrooms in each dwelling unit;

g.

Indication of the existing and/or proposed vehicle access, parking provisions and traffic circulation;

h.

Provisions for landscaping, screening, signage and lighting; and

i.

Other applicable information required by the Zoning Administrator to determine compliance of the permit request. This may include, but is not limited to, the location of drainage, public utility, common access, conservation easements, regulatory floodplain and stream protection areas, right-of-way or easement line(s), boundaries of waterways, and finished floor elevations.

(2)

Application form. The required application form must provide or be accompanied by the following information:

a.

Name, address, phone number, fax number, and e-mail address of the applicant property owner and agent, if applicable or available;

b.

Date submitted to, and accepted complete, by the Zoning Administrator;

c.

The identification number of the parcel(s), name of the zoning district in which located, site address, and if applicable, the name of the subdivision and the lot number(s) in which located;

d.

Written certification of an approved or anticipated sewage disposal system permit by the approving authority and a plan showing existing and proposed systems for sanitary sewer;

e.

Signature of the applicant attesting to the truth and correctness of all information provided on the application form, the accompanying plot plan and other documents submitted. Such signature shall indicate the applicant's acknowledgement that the permit may be revoked if the use and/or structure is not progressing or completed in a manner consistent with the information provided and approved; and

f.

The permit application fee as established in the Schedule of Fees. Additional fees may apply if construction has commenced prior to permit approval.

(d)

Review procedure.

(1)

Step 1—Application. The applicant shall submit an application to the Zoning Administrator, prior to submitting for a Certificate of Occupancy or Building Permit, all application and submittal requirements pursuant to Section 1135.04(c) (Permit Application Requirements).

(2)

Step 2—Review. Within a reasonable amount of time, the Zoning Administrator shall review the application for conformance with the provisions of this Zoning Code.

(3)

Step 3—Decision.

a.

The Zoning Administrator shall either approve the Zoning Permit and issue a zoning certificate, or deny the application and in so doing state in writing the reasons for the action taken.

b.

Upon approval, the Zoning Administrator shall return one signed copy of the application and maintain a second copy of the application as a public record.

c.

If the application is denied, the applicant may submit a new application and plans for review in accordance with Section 1135.04(c) (Permit application requirements), including a new fee, or the applicant may appeal the decision to the BZA in accordance with Section 1135.08 (Administrative appeals) of this Zoning Code.

(e)

Review criteria. All applications for a zoning permit shall demonstrate conformity with the provisions of this Zoning Code.

(f)

Expiration.

(1)

Construction shall begin within 12 months of issuance of a zoning permit. Construction shall be considered "begun" if the footers of the structure have been installed. If no footers are required, construction shall be considered "begun" when the slab or foundation of said structure is constructed.

(2)

Failure to begin construction within 12 months shall result in the expiration of the zoning permit, unless the applicant requests and receives an extension from the Zoning Administrator for good cause. Factors to be considered by the Zoning Administrator when determining whether to grant an extension shall include:

a.

The length of additional time necessary to complete construction;

b.

The reason for the delay;

c.

Good faith on the part of the applicant;

d.

The existence of or potential for any substantial detriment to adjoining property as a result of the extension; and

e.

Conformance with this Zoning Code.

(3)

Upon expiration of a zoning permit, a new zoning permit application, including all applicable fees, shall be required before construction or resumption of construction can begin.

(g)

Record of applications. A record of all zoning permit applications and approvals shall be kept on file in the office of the Zoning Administrator and copies shall be furnished upon request to any person having a proprietary or tenancy in the building or land affected.

(h)

Post zoning permit approval.

(1)

A Certificate of Occupancy shall be applied for concurrently with the application for a building permit.

(2)

No building permit shall be issued for excavation or the erection, reconstruction or structural alteration of any building, before application has been made for a Certificate of Occupancy in accordance with Section 1135.12.

(Ord. No. O-18-68, § 3(Exh. A), 12-20-18)

(a)

Purpose. The purpose of site plan review is to ensure compliance with the development and design standards of this Zoning Code and to encourage sound planning principles in the arrangement of buildings, the preservation of open space, the utilization of topography, and other site features and to promote overall quality development. A zoning permit shall not be issued for uses requiring site plan review until the site plan is approved pursuant to this section.

(b)

Applicability.

(1)

Except as specifically provided herein, no person shall commence any use or construct or alter any structure, or grade any lot or parcel in zones where a site plan is required without first obtaining an approved site plan pursuant to this section.

(2)

Unless exempted by subsection (3) below, site plan review by the Planning Commission is required for the following types of development prior to the issuance of a zoning permit:

a.

All non-residential development;

b.

All residential development;

c.

All conditional uses.

(3)

The following uses and circumstances shall be exempt from site plan review:

a.

All uses listed as not requiring site plan review in Section 1141.02 (Table of Principal Uses by Zoning District), including single-family and two-family dwellings;

b.

Greenspace, open space, or other unimproved areas;

c.

Any change in use or alteration that would otherwise also not require approval of a zoning permit, as provided in Section 1135.04(b)(4); and

d.

Exterior alteration of a building used for an approved principal or accessory use which does not expand the building footprint by more than 25 percent.

(c)

Application requirements. The required application form, fee, and information to accompany the site plan must satisfy the following requirements, unless the Zoning Administrator determines otherwise:

(1)

Site plan drawing format. The site plan shall be drawn to a scale specified appropriate by the Zoning Administrator. Information must be clear and legibly drawn.

(2)

Number of copies. Three folded copies of the site plan are required. The site plan must be drawn on sheets no greater than 24 inches by 36 inches.

(3)

Site plan minimum information. The minimum information, which must be provided on the site plan and/or in other documents submitted for site plan review, unless determined otherwise by the Zoning Administrator, follows:

a.

Name, address, phone number of the applicant site owner, and agent, if applicable, and the fax number and e-mail address of each, if available. If applicable, the name, identification number, and seal of the architect, landscape architect, engineer, or surveyor;

b.

A title block giving a name for the proposed development, and a legend, notes, and/or labels explaining the drawn content shown on each drawing, and; a legal description, parcel identification number, and address of the property in question;

c.

Notation of the month and year submitted and a place for noting revision date(s);

d.

Written and graphic scale of the plan drawing(s);

e.

Vicinity map drawn to scale with a north arrow and in display of the site location in relation to the surrounding road network and local jurisdictions;

f.

Legal and common description of the site boundary and the parcel(s) involved shown on the plan, detailing the bearing and dimension of each course of the boundary line;

g.

The acreage and/or square footage of the site;

h.

The zoning classification(s) of the site and of all abutting parcels;

i.

Location and dimensions of existing and proposed streets, driveways, sidewalks, and any other walkway within the site, with notation of thoroughfare plan specified right-of-way, the pavement type, width, and construction design details noted and depicted for each;

j.

Schematic depiction of existing and proposed locations of gas, electric, phone, fiber-optic, and other telecommunication lines and terminal facilities, sanitary sewer lines or septic system components, water service lines, wells, fire hydrants and emergency connections, storm water drainage management components, and sewer lines;

k.

Location and dimensions of existing and proposed easements and notation of the percentage of the site occupied by the easements;

l.

Existing and proposed topography on and in proximity to the site represented with elevation contour lines at intervals not exceeding:

1.

One foot for zero to six percent slopes;

2.

Two feet for six to 18 percent slopes; and

3.

Five feet for slopes over 18 percent.

m.

Location of existing surface water features, natural or man-made, including lakes, ponds, runoff control basins, marshes, wetlands, rivers, creeks, streams, or other drainage ways;

n.

A tree survey that includes information on all existing trees which have a six inches diameter at breast height (DBH) or larger. Information shall include the location, size, and condition of each tree. If the site is heavily wooded and large areas are to be protected, individual trees do not need to be surveyed. The survey shall indicate and distinguish areas based on the intended level of preservation, alteration, and/or disturbance;

o.

The types of soils found on the site and seasonal wind directions;

p.

All flood prone areas, using the 100 year flood plain as a standard; and

q.

Any additional information that may be deemed necessary for proper and complete review when a proposed development presents difficult or unusual problems.

(4)

Development specific information. The following information, as determined applicable and necessary by the Zoning Administrator, must be provided on and/or accompany the site plan:

a.

Existing and proposed land development on and around the site.

b.

Notation and depiction of any variance from this Code which has been secured.

c.

A time schedule which indicates the anticipating starting and completion dates for construction. If the development is to be staged, indication shall be made as to how the staging is to proceed.

d.

The location of each existing and proposed structure with notations of:

1.

The type, number, and size of each;

2.

The respective distances in feet from the boundary lines of the site;

3.

The lowest foundation opening and first finished floor elevations of each building;

4.

Existing structures or part(s) thereof which are to be altered or removed;

5.

For residential proposals: a site summary indicating the number of dwelling unit(s) within each building, the number of bedrooms per unit, floor plans, floor area square feet, density computation, recreation facilities and open spaces;

6.

For non-residential proposals: the number of offices and number of employees; the number of floors, floor plans, floor area square feet, total square footage, and exterior elevations; and

7.

The number of floors, floor plans, floor area square feet, total square footage, and exterior elevations.

e.

The height of each proposed structure as measured in accordance with Section 1151.03(j) (Height measurement) and Section 1151.03(k) (Height measurement exceptions).

f.

Off-street parking provisions: the total number, typical dimensions and square footage of the parking spaces, handicapped use designation, widths and turning radii dimensions of all driveways, and pavement material.

g.

Off-street loading/unloading provisions, showing the locations and noting the dimensions and square footage of each space.

h.

The location of outdoor storage, waste disposal and/or trash containment area along with detailed screened and/or buffered plans for each.

i.

The location of fences and walls, and cross-section diagram for proposed fences and walls.

j.

Landscaping plan, with details of plantings for buffers and screening in accordance with requirements of this Code.

k.

The location, type, intensity, height, and orientation of all building exteriors.

l.

Documentation of site lighting, along with a photo-metric analysis.

j.

Depiction and description of the location, type, number, and size of display faces, height, setback, and illumination, if any, of all existing and proposed signs.

(5)

Supplementary information. Additional information may be required if deemed necessary by the Planning Commission or Zoning Administrator. Such additional information may include, but is not limited to, their requirement of a traffic impact study (TIS), market analysis, environmental assessment, condominium documents, and any study or report in evaluation of the proposed impact on public facilities and services. The following information may be required as determined applicable and necessary by the Zoning Administrator:

a.

Front, side, and rear elevation drawings of structures; drawn with sufficient details to evaluate visual appearance and function;

b.

Written certification of the required sewage disposal permits having been issued or able to be issued by the applicable authority;

c.

Certification by the City Engineer or Ohio Department of Transportation (ODOT), and the City of Wilmington Fire Department, that the sight-distance location, configuration and number of existing and/or proposed street and/or driveway access intersections for the development are acceptable;

d.

Certification from the City Building Department, City Engineer, and Federal Emergency Management Agency (FEMA) that proposed structure(s) and/or fill within 100 year floodplain is compliant with applicable regulations and requirements;

e.

Stormwater drainage quantity and quality management provisions to the approval of the City Engineer;

f.

Soil erosion and sedimentation control measures as may be required. Control measures address pre- and post-development, soil type boundaries, pre-development land cover, clearing limits, wooded areas proposed to remain or be cleared, and soil stockpiling and sediment trap basins;

g.

Identification of local airport airspace and indication that the proposed development meets Federal Aviation Administration (FAA) and/or the Ohio Division of Aviation standards; and

h.

A statement documenting potential impacts to groundwater and air quality, and other environmental impacts.

(d)

Review procedure.

(1)

Step 1—Consultation with Zoning Administrator.

a.

Prior to submitting a site plan application, the applicant or property owner shall first consult with the Zoning Administrator.

b.

The purpose of this informal consultation is to:

1.

Discuss applicable standards and technical issues pertinent to the proposal;

2.

Comment on required compliance of the proposal to standards of this Code; and

3.

Comment on whether or not the site plan application is the necessary and appropriate process for making a decision on the proposed development.

c.

The applicant or Zoning Administrator may request input on the proposal from staff or other potentially involved regulatory authorities or consultants.

d.

A concept sketch plan is not required at this time, but it would be helpful for the applicant to explain:

1.

The location of the project;

2.

The proposed development (in general terms);

3.

The proposed layout of buildings, parking, access points, open spaces, and drainage facilities;

4.

The relationship to existing surrounding development; and

5.

Any other conditions/items relevant to the processing of the application.

(2)

Step 2—Formal submittal and processing.

a.

The applicant shall formally submit the required application to the Zoning Administrator in accordance with the requirements specified in Section 1135.05(c) (Application requirements).

b.

The Zoning Administrator has the duty to determine whether the application is complete within ten working days of receipt of the application.

c.

If the Zoning Administrator determines that the application is not complete, the applicant shall be notified, in writing, of the specific deficiencies of the application including any additional information that must be supplied. The applicant shall be informed that no further action will be taken by the City on the application until the deficiencies are corrected.

d.

Upon receipt of a complete application, the Zoning Administrator shall notify the applicant of completeness. The Zoning Administrator shall then provide the accepted application to applicable authorities/departments involved for review of the plan and allow 15 days to respond and receive comments before the zoning staff report is sent to the Planning Commission.

(3)

Step 3—Review and action. The Planning Commission shall hold a public meeting to consider comments and recommendations regarding the site's development. The board shall within a reasonable amount of time choose to approve or deny the site plan application as submitted, or to approve with conditions. Conditions may include plan revisions and safeguards to be performed by the applicant. Appeal of the Planning Commission decision is to the Court of Common Pleas.

(e)

Review considerations. The Planning Commission shall review the site plan in the interest of public health and safety, as well as public convenience, comfort, prosperity, or general welfare, as applicable, by considering the following factors:

(1)

To protect the long-term public interest by reviewing the internal and external relationship of development that may have considerable potential significance and impact to the City;

(2)

To ensure the application of quality design principles within new and redevelopment projects;

(3)

To determine the impact on the public, including, but not limited to, the neighboring properties;

(4)

To ensure that new development contains elements of internal cohesiveness and factors that promote good neighborhood atmosphere;

(5)

Suggestions of the Comprehensive Plan;

(6)

To promote the orderly and safe flow of vehicular and pedestrian traffic;

(7)

To confirm that all requirements of this Code applicable to the development and operation of the use are satisfied; and

(8)

To confirm that the proposed plan satisfies other County, State, and/or Federal standards which are applicable to permitting the proposed development.

(f)

Review criteria. The site plan review is conducted to determine anticipated impacts on the public health and safety, as well as the public convenience, comfort, prosperity, or general welfare, as applicable. Factors to be considered include those in Section 1135.05(e) (Review Considerations), and the following additional criteria:

(1)

Adequacy of information and compliance with Zoning Code.

a.

The plan contains the Code required information and is presented in an understandable manner that provides an accurate description of the proposed development, structure(s), site improvements, and impacts.

b.

The plan complies with all applicable requirements of the Zoning Code pertinent to the proposal.

(2)

Design layout sufficiency and compatibility. The design components proposed and used are considered sufficient and compatible with respect to the following features:

a.

Site topography;

b.

Drainage;

c.

Parcel configuration;

d.

Adjacent properties;

e.

Traffic operations;

f.

Adjacent streets and driveways;

g.

Pedestrian access; and

h.

The type, size, and location buildings.

(3)

Design character, operational compatibility, and coordination.

a.

The appearance and design character of the proposed development and all corresponding operational activities are considered compatible and coordinated with surrounding, existing, and planned developments.

b.

The proposed structures must also be identified as either primary or secondary, and must be coordinated to function with internal operations of the site.

(4)

Preservation of significant features. The plan preserves:

a.

Architecturally, historically, and/or culturally significant buildings;

b.

Wetland(s);

c.

Floodplain(s);

d.

Streams;

e.

Aquifer recharge areas;

f.

Soil(s) areas with severe limitations for use;

g.

Steep slopes; and

h.

Tree lines, hedge-rows, wooded areas, and trees that are determined valuable to retain.

(5)

Pedestrian access and circulation. The plan proposes provision of pedestrian circulation and access. Determination of adequacy is based on such provisions being designed to be safe, comfortable, compatible, connected, conflict-free, and compliant with applicable Americans with Disabilities Act (ADA) regulations.

(6)

Vehicular access and circulation streets. Driveways, parking aisles, and other related elements designed for vehicle access and circulation demands are determined sufficient per evaluation by the City Engineer and Fire/EMS department. These elements are evaluated for safety and function.

(7)

Parking and loading. Off-street parking and loading provisions are determined sufficient based upon the proposed number, size, location, and arrangement of parking spaces and provisions for shared-parking and for compliance with Title 11, Chapter 1171 (Parking and Circulation).

(8)

Signage. Signage is evaluated for compliance with Title 11, Chapter 1173 (Signs).

(9)

Landscaping and screening. Landscaping and screening are evaluated based on the design and effectiveness of landscaping/building material to screen and mitigate negative visual impacts and for compliance with Title 11, Chapter 1165 (Buffering and Landscaping)

(10)

Exterior lighting. Lighting is evaluated for compliance with Title 11, Chapter 1167 (Lighting).

(11)

Public service impact. The impacts to the following public services facilities and utilities are evaluated in terms of their capacity to accommodate the proposed development:

a.

Water;

b.

Sanitary sewer;

c.

Natural gas;

d.

Electricity;

e.

Telephone and cable;

f.

Roadways;

g.

Police protection;

h.

Fire and EMS protection;

i.

Sidewalks and bikeways; and

j.

Public schools.

(12)

Stormwater drainage and management plan. The site plan is evaluated based on the quantity and quality of runoff, impact on upstream or downstream property, and a maintenance plan, to the approval of the City Engineer.

(13)

Soil erosion and sediment control. Provisions for minimizing soil erosion during development and preventing sedimentation during and after development are determined acceptable.

(14)

Emergency access and service facilities and public safety. The plan provides for emergency access and service facilities (fire lanes, hydrants, and suppression supply connections) within the site as determined necessary per evaluation by the Fire/EMS Department in conjunction with the Building Department. The proposed development does not pose a threat to public safety.

(15)

Building design. Building design is found harmonious in character with the surrounding area with regard to scale, mass, and orientation.

(16)

Compliance with public health and safety. The application must provide plan of procedures to mitigate nuisances to surrounding areas such as, but not limited to, odors, excess noise, and/or unsanitary operations. Any externalities must be with the realm of public health, safety, and wellness.

(h)

Case file record.

(1)

Application files maintained by the Zoning Administrator shall contain all written information submitted. The application file is numbered by the year in which the application was reviewed and consecutive to other applications within the same year.

(2)

Written meeting minutes and/or audio recording(s) of the proceedings of a hearing may be referenced at the offices of the City.

(3)

The letter of the Planning Commission in decision of the site plan is placed in the case file and provided to the applicant.

(i)

Post site plan approval requirements.

(1)

Permits or approvals from other involved authorities. The applicant is responsible to obtain necessary permits or approvals from any other applicable authority before issuance of a Zoning Permit.

(2)

Development and maintenance. Per the approved site plan the property owner is responsible for the improvement and maintenance of the site in accordance with the approved site plan and all conditions of approval. Failure to comply with the approved site plan and all conditions of approval may result in an enforcement action being brought in a court of competent jurisdiction.

(3)

Expiration and extension of plan.

a.

If development has not commenced within two years following the site plan approval, the approval shall become null and void, requiring re-application.

b.

The applicant may only request an extension prior to the site plan approval expiration date. A written request for an extension shall be submitted to the Zoning Administrator.

c.

The Planning Commission may grant up to 12 months in extension of its initial approval of the plan and entertain subsequent extensions thereafter.

(j)

Modification of the approved site plan.

(1)

Minor modifications. The following are considered minor modifications allowable for approval by the Zoning Administrator:

a.

Changes made during development to improve safety, protect natural features, and/or accommodate unanticipated site constraints or to comply with further requirements of other authorities. These changes should not affect surrounding property or the approved plan layout.

b.

Changes in landscaping species that is consistent with the standards of this Code and that do not reduce the total amount of landscaping or buffering required.

c.

Change in the boundary or arrangement of a structure that does not violate minimum zoning required setbacks nor affect locations of other components of the approved site plan requirements or conditions.

d.

Adjustments in the alignment of vehicular and pedestrian access and circulation components for purposes of improved safety or to eliminate conflict with other components in the site which will not create off-site conflicts.

e.

Reduction in signage or changes in lighting which will not negatively affect off-site properties.

(2)

Major modifications. Any proposed change to a site plan that does not meet the minor modification qualification criteria specified above in Section 1135.05(i)(1) shall be considered a major modification and is subject to approval of a revised site plan by the Planning Commission.

(Ord. No. O-18-68, § 3(Exh. A), 12-20-18)

(a)

Purpose and approval.

(1)

Conditional use is provided as a category and means of permitting certain uses listed in the Table of Principal Uses by Zoning District (Section 1141.02), or listed elsewhere in the Code, as potentially acceptable.

(2)

Allowance of a conditional use is contingent on the Board of Zoning Appeals (BZA) granting approval in request for such use.

(3)

A conditional use may only be approved if the BZA finds that the proposal is in accordance with this section and meets applicable use-specific requirements specified in Title Seven, or any additional conditions specified by the BZA.

(b)

Application requirements. The applicant shall submit the required application form and fee. The information to accompany the application for conditional use shall be the same as the information required for site plan review as specified in Section 1135.05(c) (Application requirements).

(c)

Review procedure.

(1)

Step 1—Consultation with Zoning Administrator.

a.

Prior to submitting a conditional use application, the applicant or property owner shall first consult with the Zoning Administrator.

b.

The purpose of this informal consultation is to:

1.

Discuss applicable standards and technical issues pertinent to the proposal;

2.

Comment on whether or not the conditional use application is the necessary and appropriate process.

(2)

Step 2—Formal submittal and processing.

a.

The applicant shall formally submit the required application to the Zoning Administrator.

b.

The Zoning Administrator has the duty to determine whether such application is complete within ten working days of receipt of the application.

c.

If the Zoning Administrator determines that the application is not complete, the applicant shall be notified, in writing, of the specific deficiencies of the application including any additional information that must be supplied. The applicant shall be informed that no further action will be taken by the City on the application until the deficiencies are corrected.

d.

Upon receipt of a complete application, the Zoning Administrator shall notify the applicant of completeness. The Zoning Administrator shall the provide the accepted application to applicable authorities/departments involved for review of the plan and allow 15 days to respond and receive comments before the zoning staff report is sent to the Board of Zoning Appeals (BZA).

(3)

Step 3—Review and action.

a.

The BZA shall hold a quasi-judicial hearing to hear sworn testimony and consider evidence regarding the proposed conditional use.

b.

Upon closing the quasi-judicial hearing, the BZA shall approve or deny the conditional use application as submitted, or approve with conditions. Conditions may include plan revisions and safeguards to be performed by the applicant. Appeal of the BZA decision is to the Court of Common Pleas.

(d)

Review criteria.

(1)

In reviewing conditional uses, the BZA shall consider the following in the interest of public health and safety, public convenience, comfort, prosperity, or general welfare:

a.

The use is a conditional use, permitted with approval by the BZA, in the district in which the subject lot is located (except as provided in Section 1135.13, Nonconformity Provisions);

b.

Whether the use deviates from the suggestions of the Comprehensive Plan; and

c.

The conditional use will not substantially and/or permanently injure the appropriate use of neighboring properties and will serve the public convenience and welfare.

(2)

In order to approve a conditional use, the BZA shall consider the following review criteria:

a.

The use will be harmonious with, and in accordance with, the purpose of this Zoning Code;

b.

The use will conform to the general character of the neighborhood in which it will be located;

c.

Imposing special conditions or requirements that would mitigate the special characteristics which are inherent to the use and enable compatibility with the existing neighborhood;

d.

The use complies with all applicable provisions of this Zoning Code, including any use specific standards;

e.

The use be designed, constructed, operated, and maintained so as to be harmonious and appropriate in appearance with the existing or intended character of the general vicinity, and the use will not change the essential character of the area;

f.

The use will not create excessive additional requirements, at public cost, for public facilities and services and will not be detrimental to the economic welfare of the community;

g.

That the proposed use at a particular location shall be shown as necessary or desirable in providing a service or facility that will not be detrimental to the general well being of the surrounding area.

h.

That such use will not be detrimental to the health, safety, or general welfare of persons residing or working in the vicinity, or injurious to property or improvements in the vicinity; and

i.

Only one conditional use is allowed on a parcel of property.

(e)

Applicable requirements and provisions following use approval.

(1)

Permits or approvals from other involved authorities. The applicant is responsible for obtaining all necessary permits or approvals from other approving authorities before issuance of a Zoning Permit.

(2)

Development and maintenance in compliance with approved plan. It is the responsibility of the owner of the property for which the conditional use approval has been granted, or of their duly authorized agent(s) acting in their behalf, to develop, improve, operate, and maintain the site, including the buildings, structures, and all development component elements of the use, in accordance with the approved plan and all conditions of approval.

(f)

Case file record.

(1)

Application files maintained by the Zoning Administrator shall contain all written information submitted. The application file is numbered by the year in which the application was reviewed and consecutive to other applications within the same year.

(2)

Written meeting minutes and audio recording(s) of the proceedings of a hearing may be referenced at the offices of the City.

(3)

The decision on the amendment is placed in the case file. A copy of the decision is provided to the applicant.

(Ord. No. O-18-68, § 3(Exh. A), 12-20-18)

(a)

Purpose. Variance is provided as a type of application for appeal to the Board of Zoning Appeals (BZA) by which a property owner may be granted relief or release from a dimensional and/or numeric requirement of this Zoning Code.

(b)

Appropriateness. Applying for a variance is inappropriate for any of the following:

(1)

Use variances;

(2)

Development within a planned unit development (PUD);

(3)

Changes which would increase the allowable density of a property; and

(4)

Before a zoning permit has been denied by the Zoning Administrator.

(c)

Application requirements. The required application form and information to accompany the request for variance shall satisfy the requirements specified in Section 1135.05(c) (Application Requirements), or as determined by the Zoning Administrator. In addition, the following information should be provided to the greatest extent possible:

(1)

The specific variance requested;

(2)

The special conditions supporting the request;

(3)

Why a variance is not contrary to the public interest;

(4)

Setting forth demonstrable facts showing that special conditions exist; and

(5)

Describing the unnecessary hardship that would result if the variance were not granted.

(d)

Review procedure.

(1)

Step 1—Consultation with Zoning Administrator.

a.

Prior to submitting a variance application, the applicant or property owner shall first consult with the Zoning Administrator.

b.

The purpose of this informal consultation is to:

1.

Discuss applicable standards and technical issues pertinent to the proposal;

2.

Comment on whether or not the variance application is the necessary and appropriate process.

(2)

Step 2—Formal submittal and processing.

a.

The applicant shall formally submit the required application to the Zoning Administrator.

b.

The Zoning Administrator has the duty to determine whether such application is complete within ten working days of receipt of the application. If the Zoning Administrator believes that legally adequate grounds for the variance have not been property stated in the application, then he or she may refer the matter to the City Law Director for an opinion.

c.

If the Zoning Administrator determines that the application is not complete, the applicant shall be notified, in writing, of the specific deficiencies of the application including any additional information that must be supplied. The applicant shall be informed that no further action will be taken by the City on the application until the deficiencies are corrected.

d.

Upon receipt of a complete application, the Zoning Administrator shall notify the applicant of completeness. The Zoning Administrator shall then provide the accepted application to applicable authorities/departments involved for review of the plan and allow 15 days to respond and receive comments before the zoning staff report is sent to the Board of Zoning Appeals (BZA).

(3)

Step 3—Review and action.

a.

The BZA shall hold a quasi-judicial hearing to hear sworn testimony and consider evidence regarding the proposed variance.

b.

Upon closing the quasi-judicial hearing, the BZA shall either approve or deny the variance as submitted. Appeal of the BZA's decision is to the Court of Common Pleas.

(e)

Review criteria, factors, and considerations.

(1)

Review criteria. In granting a variance, the BZA shall determine that one or both of the following factors are met by the request:

a.

The conditions upon which an application for a variance is based are particular to the subject property with respect to the physical size, shape or other characteristics of the premises or adjoining premises, differentiating it from other premises in the same district; or

b.

The variance would result in an improvement of the property that is more appropriate and more beneficial to the community than would be the case without granting of the variance.

(2)

Review factors. In granting a variance, the BZA shall also determine that all of the following factors are met by the request:

a.

The essential character of the neighborhood would not be substantially altered, and adjoining properties would not suffer a substantial detriment as a result of the variance;

b.

The spirit and intent behind the subject zoning requirement would be observed and substantial justice done by granting the variance;

c.

The variance is not substantial and is the minimum necessary to afford relief to the applicant and achieve an appropriate and beneficial improvement of the property; and

d.

The variance would not adversely affect the delivery of governmental services (e.g. water, sewer, garbage).

(3)

Review considerations. In granting a variance, the BZA shall also consider the following factors:

a.

Whether the property owner purchased the property with knowledge of the zoning restriction;

b.

Whether the property in question will yield a reasonable return or whether there can be any beneficial use of the property without the variance; and

c.

Whether the property owner's predicament feasibly can be obviated through some method other than a variance.

(f)

Restrictions on board action. No variance in the application of the provisions of this Zoning Code shall be approved by the BZA relating to buildings, land or premises now existing or to be constructed, unless, after a public hearing, the BZA shall find that such variance will not:

(1)

Alter the land use characteristics of the district, except as otherwise provided in this Zoning Code.

(2)

Impair the adequate supply of light and air to adjacent property.

(3)

Increase the hazard of fire, flood and other dangers on the property.

(4)

Diminish the marketable value of adjacent lands and buildings.

(5)

Increase the congestion in the public streets.

(6)

Otherwise impair the public health, safety, convenience, comfort and general welfare.

(g)

Applicable requirements and provisions following variance approval.

(1)

Permits or approvals from other involved authorities. The applicant is responsible for obtaining all necessary permits.

(2)

Development and maintenance per the approved variance(s). It is the responsibility of the property owner to develop, improve, operate, and maintain the site, including the buildings, structures, and all elements in accordance with the approved conditions and restrictions.

(3)

Modification of the approved variance. Modification of the approved variance(s) requires re-application to the BZA.

(h)

Case file record.

(1)

Application files maintained by the Zoning Administrator shall contain all written information submitted. The application file is numbered by the year in which the application was reviewed and consecutive to other applications within the same year.

(2)

Written meeting minutes and audio recording(s) of the proceedings of a hearing may be referenced at the offices of the City.

(3)

The letter of the BZA in decision on the variance is placed in the case file and provided to the applicant.

(Ord. No. O-18-68, § 3(Exh. A), 12-20-18)

(a)

Purpose. This section sets out the procedure to follow when a person claims to have been aggrieved or affected by an administrative decision of the Zoning Administrator, other administrative official, or administrative decisions of a board of the City.

(b)

Initiation. Administrative appeals shall be initiated by the person aggrieved or affected by any order, decision, determination, or interpretation made by the Zoning Administrator, other administrative official, or administrative decision of a board of the City charged with the administration or enforcement of this Zoning Code.

(c)

Application requirements.

(1)

Name, address, fax number, e-mail address, and phone number of the owner/agent of the property;

(2)

Date submitted to, and accepted complete, for processing by the Zoning Administrator;

(3)

The identification number of the parcel(s) of the appeal submitted; the name of the zoning district and the applicable section, Town, and Range or Military Survey number(s) in which the site is located; the road address of the site, if issued; and, if applicable, the name of the subdivision and the lot number(s) of the site and other identifying references provided, if necessary, to accurately establish the location of the appeal site;

(4)

Statement of the grounds as reason(s) for submitting the application for administrative appeal;

(5)

Signature of the applicant on the application form attesting to the truth and correctness of all information provided on the application form and in any other accompanying information; and

(6)

The applicable submittal fee established by City Council in accordance with Section 1135.02 (Common Review Requirements).

(d)

Review procedure. The review procedure for an administrative appeal shall be as follows unless otherwise specified in this Zoning Code:

(1)

Step 1—Submission of appeal (Application).

a.

An appeal pursuant to this section shall be initiated by filing a written appeal of the administrative decision or determination within 30 days of the date of the order, decision, determination, or interpretation with the Building Department.

b.

An administrative appeal shall be made in accordance with Section 1135.02 (Common Review Requirements).

(2)

Step 2—Forwarding of the record to the BZA. The Zoning Administrator shall forthwith transmit to the BZA all papers constituting the record upon which the action appealed from was taken and shall be treated as and be the respondent in such further proceedings.

(3)

Step 3—BZA Hearing and decision on appeal.

a.

The BZA shall hold a public hearing for the appeal within 60 days of the application and give public notice in accordance with Section 1135.03 (Notification for public hearings).

b.

The affected party may appear at the hearing in person or by attorney.

c.

The BZA shall make a decision on the appeal within 60 days of the date of the hearing.

(e)

Review criteria. An order, decision, determination, or interpretation shall not be reversed or modified unless there is competent material and substantial evidence in the record that the order, decision, determination, or interpretation fails to comply with either the procedural or substantive requirements of this Zoning Code, state law, or the federal or state constitutions.

(f)

Conditions. The BZA may impose conditions upon an affirmative decision to ensure that the requirements and purposes of this Zoning Code are followed in the order, decision, determination, or interpretation.

(g)

Stay. A properly submitted appeal shall stay all administrative proceedings by the City in furtherance of the action appealed, unless the Zoning Administrator or other administrative official from whom the appeal is taken certifies to the BZA that a stay would cause imminent peril to life or property, in which case the administrative proceedings shall not be stayed unless a restraining order is granted by the BZA for good cause shown.

(h)

Appeal. The decision of the BZA may be reviewed by the Court of Common Pleas as provided in Chapters 2505 and 2506 of the Ohio Revised Code.

(Ord. No. O-18-68, § 3(Exh. A), 12-20-18)

(a)

Purpose. The purpose of a text or map amendment is to make adjustments due to changed conditions, changes in public policy, recommendations of the Wilmington Comprehensive Plan or changes necessary to advance the health, safety, and general welfare of the City. Official Zoning Map or Zoning Code text amendments may be proposed at any time in accordance with the requirements and procedures specified in this section.

(b)

Applicability. This section shall apply to requests to amend the text of this Zoning Code or to amend the Official Zoning Map of the City of Wilmington, hereafter referred to as the "Zoning Map."

(c)

Amendment initiation. Amendments or supplements to this Zoning Code may be initiated in one of the following ways:

(1)

By the filing of an application with the City via the Zoning Administrator from one or more owner(s) or authorized representative(s) of property in the area proposed to be changed or affected by the amendment; or

(2)

By adoption of a motion by City Council.

(d)

Application requirements. When an amendment is initiated in the manner as described in Section 1135.09(c)(1), a complete application form with the following information must be submitted to the Zoning Administrator for filing and processing:

(1)

Name, address, and phone number of the owner(s) and authorized representative(s);

(2)

Date submitted to, and accepted complete, by the Zoning Administrator;

(3)

Reason(s) for requesting the proposed text/map amendment;

(4)

Signature of the applicant attesting to the truth and correctness of all information provided on the application form and documents submitted;

(5)

The submittal fee;

(6)

For text amendments: A written description of the proposed text amendment; and

(7)

For map amendments:

a.

The parcel identification number of the parcel(s) for which the rezoning is requested;

b.

A list of the owners of property adjacent to the parcel lines of each property that is the subject of the public hearing, and two sets of mailing labels;

c.

Legal description of the subject site;

d.

Total acreage;

e.

Indication of the current zoning district(s) and the requested zoning district(s);

f.

Description of the current and proposed use(s); and

g.

Statement of how the proposed amendment relates to the goals, objectives, and policies of the Wilmington Comprehensive Plan.

(e)

Review procedure.

(1)

Step 1—Consultation with Zoning Administrator.

a.

A pre-submittal consultation with the Zoning Administrator is required prior to submitting a formal application.

b.

The intent of the consultation is to allow the applicant the opportunity to provide an overview of the proposal. The Zoning Administrator and/or other staff will outline plans, policies, and regulations affecting the proposal, identify issues, and discuss applicable zoning requirements and Comprehensive Plan recommendations. The Zoning Administrator will inform applicants of procedural requirements, checklist, timelines, and fees.

c.

Discussions that occur during a pre-submittal consultation are not binding on the City and do not constitute official assurances or representations by the City or its officials regarding any aspects of the plan or application discussed.

(2)

Step 2—Formal submittal and processing. Within five days upon the adoption of a motion by City Council, or the filing of an application by one or more property owners or lessees, the Zoning Administrator shall do the following:

a.

Set a date for a public meeting of the Planning Commission on the proposed amendment;

b.

Review the application and prepare a staff report; and

c.

Forward the application and staff report to the Planning Commission and the applicant for their review.

(3)

Step 3—Planning Commission review and recommendation.

a.

The Planning Commission shall review the proposed amendment during a public meeting.

b.

The Planning Commission shall recommend approval, approval with modifications, or disapproval of the proposed amendment to City Council. The Planning Commission may also continue the meeting for further consideration.

c.

The Planning Commission shall submit their recommendation to City Council in the form of a motion, and shall include the application and corresponding text or map proposed.

(4)

Step 4—City Council hearing and decision.

a.

Within a reasonable amount of time after receipt of the Planning Commission's recommendations and findings concerning the proposed amendment, City Council shall hold a public hearing on the proposed amendment and give public notice prior to the hearing in accordance with Section 1135.03 (Notification for public hearings).

b.

Within 90 days of the Planning Commission's public meeting and recommendations, City Council shall take action to approve, approve with conditions, or disapprove the proposed amendment.

c.

The recommendation of the Planning Commission shall not be changed except by the passage of an ordinance by a three-fourths vote.

(f)

Decision-making considerations.

(1)

The applicable authorities shall review the proposed zoning amendment in the interest of the public health and safety, as well as the public convenience, comfort, prosperity, or general welfare, as applicable.

(2)

Factors the applicable authorities should consider include, but are not limited to, the following:

a.

Is this proposed amendment consistent with the purposes and intent of this Zoning Code?

b.

Does the proposed amendment deviate from the suggestions of the Wilmington Comprehensive Plan?

c.

Is the proposed zoning compatible with the present zoning, nearby uses, and the character of the surrounding area?

d.

Is the site suitable for the uses to which it has been restricted, or does the current zoning deprive the site of all economically viable uses?

e.

How long has the property remained vacant as zoned and is it zoned different from adjacent properties?

f.

Are there available sites elsewhere in the City that are already zoned for the proposed use?

g.

Are public central sanitary sewer, stormwater facilities, roads, and other public facilities available and do they have adequate capacity to serve allowable uses?

h.

Will approval of this amendment result in existing land uses, parcels, or structures becoming non-conforming or somehow result in conflict with any provision, restriction, or requirement of this Zoning Code?

i.

Is the proposed amendment justified because of changed or changing conditions of the surrounding area since the time the current zoning designation for the property was established, and have assumptions on capital investments, road locations, population trends, land committed to development, density, use, or other elements changed to justify the amendment?

(g)

Case file record.

(1)

Application files maintained by the Zoning Administrator shall contain all written information submitted. The application file is numbered by the year in which the application was reviewed and consecutive to other applications within the same year.

(2)

Written meeting minutes and audio recording(s) of the proceedings of a public hearing may be referenced at the offices of the City.

(3)

The decision on the amendment is placed in the case file and provided to the applicant.

(h)

Changes to official zoning map. Upon approval of a zoning map amendment, the Official Zoning Map shall be amended to illustrate the map amendment as approved.

(Ord. No. O-18-68, § 3(Exh. A), 12-20-18)

(a)

Purpose. The purpose of the Planned Unit Development (PUD) regulations is to encourage innovative land planning and design, and avoid monotony sometimes associated with large developments by:

(1)

Reducing or eliminating the inflexibility that sometimes results from strict application of zoning standards that were designed primarily for individual lots;

(2)

Allowing greater freedom in selecting the means to provide access, mobility, light, open space, and design amenities;

(3)

Encouraging a sensitive design that respects the surrounding established land use character and natural or man-made features of the site; and

(4)

Allowing deviations from certain zoning standards that would otherwise apply if not contrary to the general spirit and intent of this Zoning Code.

(b)

Initiation. A PUD may be initiated voluntarily by an applicant, who may be the property owner, or by City Council.

(1)

Applicant. The applicant must own in fee simple or have an option to purchase all lands within the proposed PUD. The exception to this is if the applicant is the authorized agent for the property owner, in which case, the applicant need not own the lands.

(2)

City Council.

a.

City Council may, on its own initiative or upon the recommendation of the Planning Commission, establish a PUD on properties within the City of Wilmington that mandates that any development be reviewed as a PUD. In such case, the PUD overlay zoning district will be in place but the applicant shall be required to go through one of the review processes described in Section 1135.10(f) (Choice of review process).

b.

City Council may alternatively, on its own initiative or upon the recommendation of the Planning Commission, establish a PUD on properties within the City of Wilmington that allows some development by right based on the property's base zoning.

c.

When establishing a PUD, the City will submit general regulations but not be required to submit site plans. Additionally, the City will not be subject to the approval, revocation, or expiration requirements of this section.

(c)

Resubmission. Whenever an application for a PUD has been denied, no application for the same area, or any portion thereof, shall be filed by the same applicant within six months after the date of denial unless the new application is substantially different from the original application as determined by the Zoning Administrator.

(d)

General provisions.

(1)

The requirements as set forth in the underlying base zoning district regulations shall prevail except as modified in this section. This section sets forth the requirements for PUDs, allowing for the creation of a PUD overlay district that may overlay one or more underlying base zoning districts.

(2)

The permitted uses within the PUD shall be based on the underlying base zoning districts. If an applicant wants to incorporate uses other than those permitted in the underlying base district, the applicant may request a change of the underlying base zoning district or alternatively request the addition of up to three permitted uses as part of the PUD Regulating Plan.

(3)

Whenever a regulating plan and any subsequent underlying base zoning district changes are approved, the zoning map shall be clearly marked to indicate that all tracts in any PUD are in a Planned Unit Development district overlaying the base zoning district.

(4)

Approval of Planned Unit Development (PUD) zoning for a site does not constitute approval of a Subdivision Plat as may be required in Title One of the Planning and Zoning Code. Separate approval of subdivision plats must be obtained from the Planning Commission, but may be obtained at the same time as and as a part of the PUD approval process. Except for the manner of submission and processing, the Subdivision Regulations may be waived, where applicable. Those requirements not specifically waived by the Planning Commission shall conform to the Subdivision Regulations.

(5)

After approval of a Regulating Plan and the designation of the property as a PUD on the Zoning Map, any approval or disapproval of subsequent use or development of property in the PUD as being in compliance with regulations established as authorized by this section of the Code shall not be considered an amendment to the Code, but may be appealed pursuant to Chapter 2506, et. seq., of the ORC.

(6)

No zoning or building permits may be issued until a Final PUD Plan is approved by the Planning Commission.

(e)

Development standards. All PUDs shall comply with the provisions and standards of Section 1159.04 (Planned Unit Development Overlay).

(f)

Choice of review process. When a PUD is initiated voluntarily by an applicant, the applicant must choose to undergo one of the following review processes:

(1)

Standard PUD review process. The Standard PUD review process is a voluntary nine-step process comprising three plan approvals for concept PUD plan, preliminary PUD Plan, and final PUD plan. In this process, the concept PUD plan is a legislative decision by City Council and becomes the regulating plan to compare against all future development plans or plan modifications submitted as preliminary and final PUD plans. Preliminary and final PUD plans are administrative decisions which may be appealed pursuant to Chapter 2506, et. seq., of the ORC. This process may be the best choice for an applicant wishing to obtain legislative approval prior to committing substantial financial investment and executing detailed plans for a project, and potentially offers the most flexibility in the design of preliminary and final PUD plans in accordance with an approved concept PUD plan.

(2)

Expedited PUD review process. The expedited PUD review process is a voluntary six-step process comprising two plan approvals for preliminary PUD plan and final PUD plan. In this process, the preliminary PUD plan is a legislative decision by City Council and becomes the regulating plan to compare against all future development plans or plan modifications submitted as final PUD plans. Final PUD plans are administrative decisions which may be appealed pursuant to Chapter 2506, et. seq., of the ORC. This process may be the best choice for an applicant seeking to obtain all required zoning approvals for a development project as quickly as possible, though the applicant may assume a greater amount of financial risk in the event that preliminary PUD plan approval is not obtained or that additional revisions and re-submissions are necessary.

(g)

Standard PUD review process. The following procedures shall apply to all PUD applications where the applicant has chosen to undergo the standard PUD review process:

(1)

Step 1—Pre-submittal consultation with Zoning Administrator.

a.

A pre-submittal consultation with the Zoning Administrator is required prior to submitting a formal application.

b.

The applicant shall supply preliminary information to the Zoning Administrator in a form established by the Building Department. Such information shall be submitted at least three days prior to the pre-application conference.

c.

The purpose of the pre-submittal consultation shall be to discuss the proposed development, review submittal requirements, and discuss compliance with the provisions of this Zoning Code and the Comprehensive Plan prior to the submission of an application.

d.

Discussions that occur during a pre-submittal consultation are not binding on the City and do not constitute official assurances or representations by the City or its officials regarding any aspects of the plan or application discussed.

(2)

Step 2—Filing of concept PUD plan and application.

a.

The applicant shall submit an application for a concept PUD plan review in accordance with Section 1135.02 (Common review requirements) and Section 1135.10(i) (PUD application requirements). The application must indicate that the applicant has agreed to the standard PUD review process.

b.

The application and the official filing of the concept PUD plan and application shall be in

(3)

Step 3—Planning Commission recommendation on concept PUD plan.

a.

Upon determination that the concept PUD plan and application (Step 2) is complete, the Zoning Administrator shall schedule a public hearing with the Planning Commission, review the application, and prepare a staff report.

b.

The Planning Commission shall review the concept PUD plan and make a recommendation to City Council to approve, approve with modifications, or deny the application. The recommendation shall be made based on review of the application using the criteria contained in Section 1135.10(j) (Review criteria).

(4)

Step 4—City Council decision on concept PUD plan.

a.

Upon receipt of the Planning Commission's recommendation, the Clerk of Council shall schedule a public hearing for City Council review of the concept PUD plan.

b.

City Council shall review the concept PUD plan at a public hearing, and shall approve, approve with modifications, or deny the application based on consideration of the recommendation from the Planning Commission and evaluation of the application using the review criteria in Section 1135.10(j) (Review criteria).

c.

To deviate from the recommendation of the Planning Commission, the motion made by City Council must be passed by a three-fourths vote.

(5)

Step 5—Filing of preliminary PUD plan and application.

a.

Following approval of a concept PUD plan by City Council, the applicant shall submit an application for a preliminary PUD plan review in accordance with Section 1135.02 (Common review requirements) and Section 1135.10(i) (PUD application requirements).

b.

The applicant shall certify that the talents of the following professionals shall be utilized in the planning process for the development and shall identify any such professionals at this meeting:

1.

An architect licensed by any state;

2.

A landscape architect, an urban planner, or similar professional; or

3.

A registered civil engineer or a registered civil engineer and land surveyor, licensed by any state;

c.

One of the professional consultants chosen by the applicant from either division 1., 2., or 3. above shall be designated as the project coordinator, who will be responsible for conferring with the City and shall serve as the City's primary contact related to the project. The project coordinator shall be responsible for presenting the developer's plan in all the broad professional aspects to the Planning Commission.

d.

The application and the official filing of the Preliminary PUD Plan and application shall be in accordance with the applicable submittal deadlines of the Planning Commission.

(6)

Step 6—Planning commission recommendation on preliminary PUD plan.

a.

Upon determination that the preliminary PUD plan and application (Step 5) is complete, the Zoning Administrator shall schedule a public hearing with the Planning Commission, review the application, and prepare a staff report.

b.

The Planning Commission shall review the preliminary PUD plan and make a recommendation to City Council to approve, approve with modifications, or deny the application. The recommendation shall be made based on review of the application using the criteria contained in Section 1135.10(j) (Review criteria).

c.

The Planning Commission may, in its recommendation to City Council, require that the final PUD plan be submitted in stages corresponding to different units or elements of the development. It may do so only upon evidence assuring completion of the entire development in accordance with the preliminary PUD plan and time schedule.

(7)

Step 7—City Council decision on preliminary PUD plan.

a.

Upon receipt of the Planning Commission's recommendation, the Clerk of Council shall schedule a public hearing for City Council review of the preliminary PUD plan.

b.

City Council shall review the preliminary PUD plan at a public hearing, and shall approve, approve with modifications, or deny the application based on consideration of the recommendation from the Planning Commission and evaluation of the application using the review criteria in Section 1135.10(j) (Review criteria).

(8)

Step 8—Filing of final PUD plan and application.

a.

Following approval of the Preliminary PUD Plan by City Council, the applicant shall submit an application for a Final PUD Plan review in accordance with Section 1135.02 (Common review requirements) and Section 1135.10(i) (PUD application requirements).

b.

The application and the official filing of the final PUD plan and application shall be in accordance with the applicable submittal deadlines of the Planning Commission.

(9)

Step 9—Planning Commission decision on final PUD plan.

a.

The Planning Commission shall review the final PUD plan at a public meeting to determine whether it conforms to all substantial aspects of the Preliminary PUD Plan and to all other applicable standards of this Zoning Code.

b.

The Planning Commission shall approve or deny the Final PUD Plan. In its decision, the Planning Commission may impose such conditions of approval as are in its judgment necessary to ensure conformity to the applicable criteria and standards. In so doing, the Planning Commission may permit the applicant to revise the plan and resubmit the Final PUD Plan within 30 days of such action.

(h)

Expedited PUD review process. The following procedures shall apply to all PUD applications where the applicant has chosen to undergo the expedited PUD review process:

(1)

Step 1—Pre-submittal consultation with Zoning Administrator.

a.

A pre-submittal consultation with the Zoning Administrator is required prior to submitting a formal application.

b.

The applicant shall supply preliminary information to the Zoning Administrator in a form established by the Building Department. Such information shall be submitted at least three days prior to the pre-application conference.

c.

The purpose of the pre-submittal consultation shall be to discuss the proposed development, review submittal requirements, and discuss compliance with the provisions of this Zoning Code and the Comprehensive Plan prior to the submission of an application.

d.

Discussions that occur during a pre-submittal consultation are not binding on the City and do not constitute official assurances or representations by the City or its officials regarding any aspects of the plan or application discussed.

(2)

Step 2—Filing of preliminary PUD Plan and application.

a.

The applicant shall submit an application for a preliminary PUD plan review in accordance with Section 1135.02 (Common review requirements) and Section 1135.10(i) (PUD application requirements). The application must indicate that the applicant has agreed to the expedited PUD review process.

b.

The applicant shall certify that the talents of the following professionals shall be utilized in the planning process for the development and shall identify any such professionals at this meeting:

1.

An architect licensed by any state;

2.

A landscape architect, an urban planner, or similar professional; or

3.

A registered civil engineer or a registered civil engineer and land surveyor, licensed by any state;

c.

One of the professional consultants chosen by the applicant from either division 1., 2., or 3. above shall be designated as the project coordinator, who will be responsible for conferring with the City and shall serve as the City's primary contact related to the project. The project coordinator shall be responsible for presenting the developer's plan in all the broad professional aspects to the Planning Commission.

d.

The application and the official filing of the preliminary PUD plan and application shall be in accordance with the applicable submittal deadlines of the Planning Commission.

(3)

Step 3—Planning Commission recommendation on preliminary PUD plan.

a.

Upon determination that the Preliminary PUD Plan and application (Step 2) is complete, the Zoning Administrator shall schedule a public hearing with the Planning Commission, review the application, and prepare a staff report.

b.

The Planning Commission shall review the Preliminary PUD Plan and make a recommendation to City Council to approve, approve with modifications, or deny the application. The recommendation shall be made based on review of the application using the criteria contained in Section 1135.10(j) (Review criteria).

c.

The Planning Commission may, in its recommendation to City Council, require that the final PUD plan be submitted in stages corresponding to different units or elements of the development. It may do so only upon evidence assuring completion of the entire development in accordance with the preliminary PUD plan and stage development schedule.

(4)

Step 4—City Council decision on preliminary PUD plan.

a.

Upon receipt of the Planning Commission's recommendation, the Clerk of Council shall schedule a public hearing for City Council review of the preliminary PUD plan.

b.

City Council shall review the preliminary PUD plan at a public hearing, and shall approve, approve with modifications, or deny the application based on consideration of the recommendation from the Planning Commission and evaluation of the application using the review criteria in Section 1135.10(j) (Review criteria).

c.

To deviate from the recommendation of the Planning Commission, the motion made by City Council must be passed by a three-fourths vote, pursuant to Ohio R.C. 713.12.

(5)

Step 5—Filing of final PUD Plan and application.

a.

Following approval of the preliminary PUD plan by City Council, the applicant shall submit an application for a final PUD plan review in accordance with Section 1135.02 (Common review requirements) and Section 1135.10(i) (PUD Application requirements).

b.

The application and the official filing of the final PUD plan and application shall be in accordance with the applicable submittal deadlines of the Planning Commission.

(6)

Step 6—Planning Commission decision on final PUD plan.

a.

The Planning Commission shall review the final PUD plan at a public meeting to determine whether it conforms to all substantial aspects of the preliminary PUD plan and to all other applicable standards of this Zoning Code.

b.

The Planning Commission shall approve or deny the final PUD plan. In its decision, the Planning Commission may impose such conditions of approval as are in its judgment necessary to ensure conformity to the applicable criteria and standards. In so doing, the Planning Commission may permit the applicant to revise the plan and resubmit it as a final PUD plan within 30 days of such action.

(i)

PUD application requirements.

(1)

Concept PUD plan. The concept PUD plan must be depicted on one or more legible maps drawn at one inch equals 100 feet or different intuitive scale specified by the Zoning Administrator, and prepared by a registered architect, landscape architect, engineer, surveyor, or other professional planning consultant. The requirements to be shown on or included with a concept PUD plan application shall be the following, as deemed necessary by the Zoning Administrator:

a.

Required application form and fee;

b.

Basic project site information, including total site acreage, legal description, and Parcel ID;

c.

Existing property lines, easements, public road centerlines and right-of-way, contour lines at suitable intervals, generalized locations of public and private utilities, and regulatory floodplain boundaries if involved;

d.

Existing land uses and zoning classifications within and surrounding the project site;

e.

Delineation of steep slope areas, where the slope exceeds 25 percent;

f.

Existing and proposed land use areas, including common open space and natural resource areas, with the following information displayed or noted:

1.

General boundaries and location of each land use area;

2.

Percentage of the project site within each land use area;

3.

Definitions of each type of land use area, including density ranges and product types if applicable;

g.

Proposed layout and network of vehicular and pedestrian access and circulation;

h.

General locations for signage; and

i.

Development standards for the PUD, including the following as applicable:

1.

Maximum total dwelling units and minimum floor area for each dwelling unit type;

2.

Minimum setbacks, lot sizes, lot widths, and lot frontages;

3.

Maximum non-residential floor area, site coverage percentage, and impervious surface ratio;

4.

Minimum open space percentage or acreage;

5.

Additional uses to be allowed within the PUD;

6.

Any performance standards, including operational characteristics and impacts such as hours of operation; visual, noise, odor, or other environmental impacts; and

7.

Any other standards or requirements under the base zoning district which are to be modified, and any additional development standards imposed upon the PUD.

(2)

Preliminary PUD plan. The requirements to be shown on or included with a preliminary PUD plan application shall be the following, as deemed necessary by the Zoning Administrator:

a.

Required application form and fee; and

b.

The same information as required for site plan review in Section 1135.05(c) (Application requirements), except detailed plans for landscaping, lighting, and signage shall not be required.

(3)

Final PUD plan. The requirements to be shown on or included with a final PUD plan application shall be the following, as deemed necessary by the Zoning Administrator:

a.

Required application form and fee;

b.

The same information as required for site plan review in Section 1135.05(c) (Application requirements), including detailed plans for landscaping, lighting, and signage.

c.

All necessary legal documentation relating to the incorporation of a homeowners' association or property owners' association for residential PUDs, or other similar associations for non-residential PUDs. Such legal documentation shall demonstrate how the open space will be maintained over the life of the development; and

d.

Copies of any restrictive covenants, easements or agreements that are to be recorded.

(j)

Review criteria. The Planning Commission and City Council shall consider the following criteria in order to make a decision on all applications for a PUD:

(1)

The proposed PUD is consistent with the recommendations and policies of the City of Wilmington Comprehensive Plan or other applicable City plans;

(2)

The proposed PUD will not adversely affect adjacent properties;

(3)

The proposed PUD illustrates an exemplary and creative design;

(4)

The proposed PUD is comprehensively planned and integrated, and, where feasible, linked by pedestrian and vehicular connections to surrounding properties;

(5)

The proposed PUD will ensure efficient development within the City and result in a logical and orderly development pattern;

(6)

The proposed PUD is in compliance with applicable PUD development standards, pursuant to Section 1135.10(e) (Development standards) of this Zoning Code.

(7)

The proposed PUD is in compliance with all other standards and requirements of this Zoning Code and of the base zoning district not modified by the PUD proposal;

(k)

Compliance with approved plans.

(1)

When applicable, preliminary PUD plans shall generally conform to any approved concept PUD plan in place for the project site and must adhere to all development standards established as part of the concept PUD plan approval.

(2)

Final PUD plans shall meet all requirements established as part of prior preliminary PUD plan approval, and shall conform to the preliminary PUD plan in a manner which does not constitute a "major modification" as described in Section 1135.10(m) (Modifications) herein.

(3)

An approved Final PUD Plan shall control the issuance of all zoning and building permits and shall restrict the nature, location and design of all uses. The applicant shall agree in writing to be bound, for himself or herself and his or her successors in interest, by the conditions prescribed for approval of a PUD.

(l)

PUD plan revocation and expiration.

(1)

In a standard PUD review process, failure to submit an application for a final PUD plan for the entire development, or for the first unit of development when submission in stages was authorized by the Planning Commission during preliminary PUD plan review, within one year of approval of the preliminary PUD plan shall deem the preliminary PUD plan expired. The applicant may request City Council to grant a one year extension to this time period. In no case shall a preliminary PUD plan be valid for more than two years.

(2)

In both standard and expedited PUD review processes, failure to begin construction of the development within one year of final PUD plan approval shall deem the final PUD plan expired. The applicant may request City Council to grant a one year extension to this time period.

(3)

In the event or failure to comply with an approved final PUD plan or any prescribed condition of approval, including failure to comply with the time schedule, City Council may, upon recommendation of the Planning Commission, hold a public hearing with reasonable public notice and take one of the following actions:

a.

Grant a specified amount of time to allow the applicant to bring the development into compliance with the approved final PUD plan; or

b.

Revoke the approved final PUD plan. If revoked, the applicant may resubmit an application for final PUD plan review under the same requirements. Once the final PUD plan is revoked, the City Council may initiate a zoning map amendment to rezone and remove the approved PUD overlay district.

(m)

Modifications.

(1)

Modifications to an approved final PUD plan may be considered in accordance with this section. A request for a modification shall be submitted to the Zoning Administrator.

(2)

The Zoning Administrator shall have the authority to determine if the proposed modification is a major modification or minor modification in accordance with this section. Such decision may be appealed to the BZA.

(3)

Major modifications.

a.

Major modifications to an approved final PUD plan shall include but not be limited to:

1.

Changes to the PUD boundaries;

2.

An increase in residential density;

3.

An expansion in non-residential floor area that exceeds ten percent of the total floor area that was previously approved;

4.

Changes in the amount (percentage of the total development) or location of different land uses;

5.

An addition of a use that is specifically prohibited, or not specifically approved for the PUD unless the use is otherwise permitted in the underlying base zone;

6.

A decrease in the total amount of open space or landscaping;

7.

A significant alteration of circulation patterns (vehicular or pedestrian);

8.

Changes that are not consistent with the purposes and general character of the PUD; or

9.

Any other major deviation from the requirements of the PUD or the Zoning Code.

b.

Major modifications shall require approval of a revised preliminary PUD plan submission, in accordance with the process and procedures outlined in Section 1135.10(g) (Standard PUD review process) or Section 1135.10(h) (Expedited PUD review process), as applicable.

(4)

Minor modifications. Other amendments or modifications shall be classified as a minor modification and shall be reviewed and approved by the Zoning Administrator.

(Ord. No. O-18-68, § 3(Exh. A), 12-20-18)

(a)

Purpose. The purpose of Section 1135.11 is to provide for the review of development, construction, alteration, or demolition of structures within the Commercial Historic (H-1) Overlay District.

(b)

Applicability.

(1)

A certificate of appropriateness shall be required before any change may be instituted within the H-1 Overlay District, whether or not such change requires a zoning permit. A "change" is defined as any alteration, reconstruction, or restoration of the exterior of a structure; construction of a new structure; demolition of an existing structure; placement of new landscaping; erection of new signs; or any material alteration in the landscaping, signage, exterior color(s) or external architectural features of any property.

(2)

No building permit or sign permit within the H-1 Overlay District shall be issued without the prior issuance of a certificate of appropriateness.

(3)

No change shall be instituted or made within the H-1 Overlay District except in strict conformity with the plans and application approved by the Planning Commission and/or Zoning Administrator (or designee) in their approval and issuance of a certificate of appropriateness.

(4)

A certificate of appropriateness issued for a particular change shall be effective only for such change. Further or continued change shall be authorized only after the issuance of a new certificate of appropriateness.

(c)

Initiation. Pursuant to Section 1135.02 (Common review requirements), any person having authority to file applications may initiate an application for a certificate of appropriateness.

(d)

Exemptions. The following shall be exempt from the provisions of Section 1159.03 (Commercial Historic (H-1) Overlay District) and shall not require a certificate of appropriateness:

(1)

Private residences. Any property which is occupied by the owner solely as his or her private residence and where no portion of which is used for commercial purposes, shall be exempt.

(2)

Government buildings. Any property owned and used by a governmental entity, or any property by such an entity and leased to any private person or entity as integral part of the government entity's function, shall be exempt.

(3)

Churches and places of worship. Any property which is owned by a church and used as either a place of public worship or a residence of the church's minister, pastor or priest, shall be exempt.

(4)

Unsafe or dangerous conditions. Nothing in Section 1135.11 (Certificate of Appropriateness) or Section 1159.03 (Commercial Historic (H-1) Overlay District) shall prevent any change which the Building Inspector determines to be required for the public safety because of an unsafe or dangerous condition.

(5)

Ordinary maintenance and repair. Ordinary maintenance and repair, defined as an activity where the purpose of the work is to correct deterioration to the structure or where no change is made to the appearance of the building or grounds, which includes:

a.

Repainting of a building, with no change to the existing color scheme;

b.

Replacement of window glass but not replacement of the style or type of window;

c.

Caulking and weather-stripping;

d.

Minor landscaping, including vegetable and flower gardens, shrubbery, and tree plantings, except when part of an overall landscaping or replanting of the entire yard;

e.

Repairs to walks, patios, fences, and driveways where the replacement materials match the original or existing materials in detail and color;

f.

Replacement of missing or deteriorated siding, trim, roof coverings, porch flooring, steps, etc. as long as the replacement materials match the original or existing materials in detail and color and where the replacement covers less than 25 percent of the total area of the material (i.e. replacement of less than 25 percent of the existing siding with matching materials);

g.

Replacement of gutters and downspouts as long as the shape, color, and details match the original or existing materials;

h.

Replacement of roof ventilators when not visible from the right-of-way;

i.

Replacement of chimney caps;

j.

Installation of house numbers and mailboxes; and

k.

Repair of existing street or yard lighting.

(e)

Review procedure. The Zoning Administrator (or designee) and/or Planning Commission shall be responsible for reviewing and deciding on certificates of appropriateness pursuant to the procedure set forth below::

(1)

Step 1—Application. An application for a certificate of appropriateness shall be made in accordance with Section 1135.02 (Common review requirements).

(2)

Step 2—Zoning Administrator review and decision. The Zoning Administrator shall review the application for a certificate of appropriateness and take action to approve, approve with conditions upon review and decision by the Planning Commission, or deny the certificate. The Zoning Administrator may also recommend the forwarding of any application for certificate of appropriateness to the Planning Commission for further review.

(3)

Step 3—Planning Commission review and decision.

a.

If the Zoning Administrator determines an application merits further review or determines the need for approval with conditions, they shall forward the application to the Planning Commission for review.

b.

The Planning Commission will review applications for certificates of appropriateness at a regularly scheduled public meeting.

c.

The Planning Commission shall take action to approve, approve with conditions, or disapprove the proposed certificate of appropriateness. The Planning Commission may also continue the meeting for further consideration.

d.

The Planning Commission may attach necessary conditions such as time limitations, requirements that one or more things be done before the request can be initiated, or conditions of a continuing nature. Any such conditions shall be recorded in the Commission's minutes and on the certificate of appropriateness.

(f)

Guidelines applicable to a certificate of appropriateness. In making a determination on an application for a certificate of appropriateness, the Zoning Administrator (or designee) and/or Planning Commission shall refer to Section 1159.03(e) (Development guidelines).

(g)

Approval criteria for modifications. In order to approve a certificate of appropriateness, the Zoning Administrator (or designee) and/or Planning Commission shall first make a determination if the structure or site is significant pursuant to subsection a. below and then shall make a decision based on the appropriate approval criteria in subsections b. and c.

(1)

Determination of significance. The Zoning Administrator (or designee) and/or Planning Commission shall determine whether a structure or site is significant based on the following criteria:

a.

Its value as a reminder of the cultural or archaeological heritage of the City, state, or nation;

b.

Its location as a site of a significant local, state, or national event;

c.

Its identification with a person or persons who significantly contributed to the development of the City, state, or nation;

d.

Its identification as the work of a master builder, designer, or architect whose individual work has influenced the City, state, or nation;

e.

Its value as a building that is recognized for the quality of its architecture and that it retains sufficient elements showing such architectural significance;

f.

Its characteristic of an architectural style or period; or

g.

Its character as a contributing element in the H-1 Overlay District.

(2)

Approval criteria for significant structures or sites. If the structure or site is determined to be significant, the Zoning Administrator (or designee) and/or Planning Commission shall state the basis for such determination and shall make the following findings in order to approve the proposed modification:

a.

That the proposed work is consistent with the standards of Section 1159.03 (Commercial Historic (H-1) Overlay District) and the historic and architectural character of the building, structure, appurtenance, or site will be properly preserved;

b.

That the proposed project will not have a detrimental impact on the historic or architectural character of the property; and

c.

That the proposed project is compatible with other significant and/or contributing properties in the H-1 District in terms of form, proportion, mass, texture, configuration, building materials, color, the location of the building on the lot, and the land use.

(3)

Approval criteria for non-significant structures or sites. If the structure or site is not determined to be significant, the Zoning Administrator (or designee) shall forward the application to the Planning Commission for review, and the Planning Commission shall state the basis for such determination and shall make the following findings in order to approve the proposed modification:

a.

That the proposed project is compatible with other significant and/or contributing properties in the H-1 District in terms of form, proportion, mass, texture, configuration, building materials, color, the location of the building on the lot, and the land use; and

b.

That the proposed work does not increase the incompatibility of an existing structure.

(4)

Failure to make a positive finding. If the Zoning Administrator (or designee) and/or Planning Commission fails to make a positive finding under subsections (2) or (3) above, then a certificate of appropriateness shall not be issued unless the Planning Commission finds:

a.

That the proposed modification(s) are necessary for the continued viability of the structure and the cost of making said improvements in such manner as to meet the appropriate findings will result in the building being incapable of earning a reasonable economic return upon its value at the time, or upon future sale of the property (the Planning Commission may require cost estimates for an alternative that would comply with the requirements of Section 1159.03); or

b.

That the proposed project is required for the physical functioning of the building for health and/or safety reasons and no reasonable alternative is available to meet this need.

c.

If the Planning Commission finds that either of the two circumstances in paragraphs a. and b. exists, every effort shall be made to minimize the adverse impact of the proposed work and to allow for the work to be reversed in the future.

(h)

Approval criteria for new construction. If new construction is involved (infill and/or additions to an existing structure), the Zoning Administrator shall forward the application to the Planning Commission, and the Planning Commission shall make the following findings in order to approve a certificate of appropriateness:

(1)

That the proposed work is consistent with the standards of Section 1159.03 (Commercial Historic (H-1) Overlay District); and

(2)

That the proposed project is compatible with other significant and/or contributing properties in the H-1 District in terms of form, proportion, mass, texture, configuration, building materials, color, the location of the building on the lot, and the land use.

(i)

Approval criteria for demolition.

(1)

If demolition of all or part of an existing structure is involved, Zoning Administrator shall forward the application to the Planning Commission, and the Planning Commission shall evaluate the application based on the following criteria:

a.

There is an imminent health or safety issue;

b.

The structure is not structurally sound;

c.

The structure cannot practically be moved; or

d.

The demolition is requested for a structure that has no historic significance.

(2)

The Planning Commission may review the moving of a structure when:

a.

The new surrounding would be harmonious with the historical and architectural character of the building; and

b.

The relocation would help preserve and protect a building that the Planning Commission determines to be significant pursuant to Section 1135.11(g)(1) (Determination of significance).

(3)

In addition to making at least one of the findings of subsection (1) above, the Planning Commission shall be required to also make all the following findings in order to approve a certificate of appropriateness for the demolition of a building or structure:

a.

The structure does not contribute to the historic district;

b.

Demolition will not have an adverse effect on the integrity of the district; and

c.

Demolition will be inconsequential to the historic preservation policies of the City.

(4)

The applicant shall have one year to demolish or move the structure under an approved certificate of appropriateness or the certificate shall be deemed null and void. The applicant shall then be required to submit a new application pursuant to this section.

(j)

Effect of a certificate of appropriateness.

(1)

Approving a certificate of appropriateness does not exempt the applicant from complying with all of the requirements of this Zoning Code, the Building Code, and other regulations of the City.

(2)

Approvals granted under a certificate of appropriateness shall run with the land and shall not be affected by a change in ownership.

(3)

The breach by the applicant of any condition, safeguard, or requirement expressed or referred to on the certificate of appropriateness shall render the certificate void and shall constitute a violation of this Zoning Code.

(4)

The Planning Commission shall have the power to revoke a Certificate of Appropriateness for noncompliance with the conditions contained thereon. Furthermore, the Planning Commission shall have a right of action to compel offending structures or uses removed at the cost of the violator and may have judgment in person and for such cost.

(k)

Subsequent development. Development authorized by a certificate of appropriateness shall not be carried out until the applicant has secured all other approvals required by this Zoning Code or any other applicable provisions of the City. The approval of a certificate of appropriateness shall not ensure that the development approved as a certificate shall receive subsequent approval for other applications for development approval unless the relevant and applicable portions of this Zoning Code or other applicable provisions are met.

(l)

Appeal and reapplication rights.

(1)

Any final determination of the Zoning Administrator and/or Planning Commission made in approving or denying an application for a certificate of appropriateness and any decision of the Building Inspector or Zoning Administrator made in the enforcement of the provisions of this chapter may be appealed to City Council by any person claiming to be adversely affected, provided however, that such appeal must be made within 30 days after receipt of notice or posting of such final determination or decision, whichever last occurs.

(2)

An applicant may file one reapplication for a certificate of appropriateness within a 12-month period from the date of the original application with regard to a particular change.

(m)

Enforcement and violations.

(1)

The Building Inspector or the Zoning Administrator is designated and authorized to enforce the provisions of Section 1135.11 to prevent, correct or abate any unlawful change.

(2)

The Planning Commission, the Zoning Administrator, or any person, firm or corporation jointly or severally aggrieved, may institute a suit for injunction in the Common Pleas Court of Clinton County to restrain an individual or governmental unit from violating the provisions of Section 1135.11. The Planning Commission or Zoning Administrator may also institute a suit for mandatory injunction directing an individual, entity, or governmental unit to remove a structure erected in violation of Section 1135.11.

(3)

Any building or property that is changed in violation of Section 1135.11 is declared to be a common nuisance and as such may be abated in such manner as nuisances are now or may hereafter be abated under existing law.

(Ord. No. O-18-68, § 3(Exh. A), 12-20-18; Ord. No. O-21-30, § 3, 8-5-21)

(a)

Purpose. A Certificate of Occupancy shall be required in accordance with the provisions of Section 1135.12 in order to ensure that new construction and changes in tenants or uses comply with the provisions of this Zoning Code.

(b)

Applicability and review procedure.

(1)

It shall be unlawful for an owner to use or permit the use of any building or land or part thereof, hereafter created, changed, converted, or enlarged, wholly or partly, until a certificate of occupancy is issued.

(2)

The certificate of occupancy shall be issued as part of the building permit review process established in other sections of the Wilmington Codified Ordinances.

(3)

The certificate of occupancy shall show that such building or land or part thereof and the proposed use thereof are in conformity with the provisions of this Zoning Code. It shall be the duty of the Zoning Administrator to issue a certificate of occupancy, provided that he or she has checked and is satisfied that the building and the proposed use thereof conform to all requirements of this Zoning Code, Building Code, and other City regulations.

(c)

Initiation. Pursuant to Section 1135.02 (Common review requirements), any person having authority to file applications may initiate an application for a certificate of occupancy.

(d)

Conditional certificate of occupancy.

(1)

The Zoning Administrator may issue a conditional certificate of occupancy for a specified period of time when a building or structure has been substantially completed so that its occupancy would not be hazardous or detrimental to the general welfare and when full compliance with all applicable codes, ordinances, and permits has not been achieved, provided there are extenuating circumstances beyond the applicant's control which necessitate allowing such occupancy on a temporary basis. Delay of outside work because of cold weather is an example of an extenuating circumstance.

(2)

Where a conditional certificate of occupancy is requested by an owner, the Zoning Administrator shall require that the owner and any other interested party, such as a tenant, sign a statement guaranteeing full completion of all zoning and ordinance regulated items before expiration of the specified time and agreement to the cut-off of any or all utility services without recourse from the date of expiration of the conditional certificate of occupancy until all work is satisfactorily completed.

(e)

Certificate of occupancy for existing buildings. Upon written request from the owner, the Zoning Administrator shall issue a certificate of occupancy for any building or land existing at the time of enactment of this Zoning Code, certifying, after inspection, the extent and kind of use made of the building or land, and whether such use conforms with the provisions of this Zoning Code.

(f)

Certificate of occupancy for non-conforming uses and buildings.

(1)

A certificate of occupancy shall be required for all lawful non-conforming uses of land or buildings created by this Zoning Code.

(2)

A fee as established in the Fee Schedule shall be charged for said certificate.

(3)

Applications for certificates of occupancy for non-conforming uses of land and buildings shall be filed with the Zoning Administrator by the owner of the land or building occupied by such non-conformities within six consecutive calendar months of the effective date of this Zoning Code. Failure to apply for such certificate of occupancy will place upon the owner the entire burden of proof that such use of land or buildings lawfully existed on the effective date of this Zoning Code.

(4)

It shall be the duty of the Zoning Administrator to issue a certificate of occupancy for lawful non-conforming uses upon application and such certificate shall identify the extent to which the non-conforming use exists at the time of issuance of such certificate.

(Ord. No. O-18-68, § 3(Exh. A), 12-20-18)

(a)

Purpose.

(1)

The non-conforming provisions of Section 1135.13 permit the continuation of a lawful use, structure, or lot, which exists at the time of enacting the Zoning Code or as an amendment to the Zoning Code.

(2)

Provisions in Section 1135.13 permit such non-conformities to continue in accordance with certain conditions and restrictions. This Section applies to the following categories of non-conformities:

a.

Non-conforming lots of record;

b.

Non-conforming uses of land and structures;

c.

Non-conforming buildings/structures.

(b)

Non-conforming lots of record.

(1)

Legal non-conforming lots. Legal (grandfathered) non-conforming lots of record are those which do not conform to one or more of the dimensional requirements in this Zoning Code, but were recorded prior to the effective date of this Zoning Code.

(2)

Approved preliminary plat lots. Lots which do not conform with the regulations of this Zoning Code but are shown on preliminary plats approved by the Planning Commission prior to the effective date of this Zoning Code, where such approval has not expired by reason of inactivity as provided in the City of Wilmington Subdivision Regulations, shall be allowed to be recorded as shown on the preliminary plan. Once such lots are recorded on a final plat, the lots shall then be considered legally non-conforming.

(3)

Procedures.

a.

In any zoning district, an allowable structure may be permitted on a single non-conforming lot of record provided that the lot has at least 35 feet of road frontage. If placement of the structure cannot conform to the required setbacks of this Zoning Code, the following rules shall apply:

1.

The sum of the side yard setbacks of any sub-standard sized lot shall be 30 percent of the width of the lot and at least ten percent of the lot width for any one side yard.

2.

The depth of the rear yard setback of any sub-standard sized lot need not exceed 20 percent of the depth of the lot, but in no case less than ten percent.

3.

The front yard setback shall follow the district standard.

b.

If two or more adjacent lots of sub-standard width for the zone in which they are located belong to one owner, they shall be combined into new lot sizes as follows:

1.

If the total combined width is less than the required minimum width for one lot for the zone in which they are located, they shall be combined to form one lot.

2.

If the total combined width is greater than the minimum required width for one lot for the zone in which it is located, but not a multiple of said width, the lots shall be divided into equal width lots, so as to result in one more lot than the number of lots of the minimum width required in the zone in which they are located.

c.

Recombination of lots is not required, if:

1.

Two or more of the lots are developed with principal buildings, and the recombination of lots would create non-conforming structures;

2.

The combination of lots would materially disrupt the character of the area, as determined by the Zoning Administrator; or

3.

Each lot is capable of individually supporting sanitary service.

(c)

Non-conforming uses.

(1)

A non-conforming use of record which would not be allowable by the most recent regulations shall be grandfathered, recognized to legally continue so long as the use remains otherwise lawful in accordance with the following:

a.

The non-conforming use shall not be enlarged, increased in intensity, or extended to occupy a greater area of land on a lot than was occupied on the date when the use became non-conforming.

b.

The non-conforming use may be extended throughout any part of the building(s) in which it existed on the date when the use became non-conforming, provided no structural alterations are made therein, except required by law. The use shall not be extended to occupy any more land outside of any such buildings(s) on the lot where located.

c.

No such non-conforming use shall be moved, in whole or in part, to any other portion or location of the lot or parcel than which was occupied by the use on the effective date of the regulation which made the use non-conforming, unless such would improve conformity with the current regulations.

d.

A non-conforming use shall not be permitted to resume if the building(s) or other structure(s) in which it existed become damaged or destroyed beyond 75 percent of the replacement cost.

(2)

The legal non-conforming status of a use is terminated upon abandonment or discontinuation of the use for more than one year.

(3)

No provision of this Code shall render an existing single-family detached dwelling as a non-conforming use except for such use within a floodplain area.

(4)

Any existing use pre-dating the effective date of this Zoning Code which is allowed as a conditional use in the given zoning district, and which also conforms to the standards applicable to the use, shall not be deemed a non-conforming use and shall without further action be considered a conforming use.

(5)

The lawful use of land for open storage purposes, which does not conform to the provisions of this Zoning Code, shall be discontinued within five years from the date of passage of this Zoning Code, and the use of land for storage purposes, which may become a non-conforming use by reason of an amendment to this Zoning Code, shall be discontinued within five years from the date of passage of such amendment.

(d)

Non-conforming structures/buildings. A non-conforming structure is a building or other structure of record which predated the adoption or amendment of this Zoning Code and is not permitted, by reason of restrictions on type, area, bulk, height, setbacks, or other similar requirements. These structures may remain provided they remain lawful in accordance with the following:

(1)

The structure shall not be enlarged or altered in any way which increases non-conformity, but may be altered to decrease non-conformity;

(2)

The structure shall not be moved, in whole or in part, unless for purpose of coming into complete compliance with zoning requirements;

(3)

If the structure becomes damaged or destroyed beyond 75 percent of the replacement cost, reconstruction shall comply with the current zoning requirements.

(4)

Nothing herein contained shall require any change in the plans, construction or designated use of a building for which a zoning permit has been heretofore issued and the construction of which has been diligently pursued within 90 days of the date of such permit and which shall be completed according to such plans, as filed, within three years from the date of passage of this Zoning Code. Subsequent routine maintenance and repair is also permitted for such buildings.

(e)

Procedure for becoming conforming. In many instances, non-conforming uses or buildings/structures are integral parts of the community's fabric. In these instances, the classification "non-conformity" and resulting restriction on investment may not be what the community desires. As such, the use may be made conforming pursuant to this section. Non-conformities may become conforming as follows:

(1)

Types of situations. The following are three types of situations whereby a non-conforming use, building, or structure can become conforming and/or be changed to another use:

a.

Correcting the non-conformity. Correct the non-conforming situation. Where a non-conforming use is proposed to be changed to another use which requires a conditional use permit, those procedures must be followed.

b.

Conditional use application to change to another non-conforming use. Apply for a conditional use permit to change the existing non-conforming use to another non-conforming use; in such cases, the BZA must find that the use proposed for substitution is equally appropriate or more appropriate to the district than the existing non-conforming use. Whenever the BZA allows a non-conforming use to be changed to another non-conforming use per this section, it shall not thereafter be allowed to come back before the BZA for a change to another non-conforming use.

c.

Conditional use application to make use conforming. Apply for conditional use permit as conforming. Under this process, where there is no change of use, the non-conforming situation may be mitigated and made conforming through application for, and approval by, the BZA for a conditional use permit.

(2)

Procedure. Owners of non-conforming uses, buildings or structures may apply for a conditional use permit to become conforming without changing the use or necessarily modifying the entire physical nature of the non-conformity. The conditional use permitting application shall be reviewed by the Zoning Administrator, and he or she shall provide a recommendation to the BZA for a final decision. The BZA, at their discretion, may require an operation plan or additional studies and reports from the property owner as part of their consideration.

(3)

Review criteria.

a.

In addition to the standards and criteria for conditional use review, the applicant shall demonstrate that the non-conformity, as conducted and managed, has minimal incompatibilities that have been integrated into the community's function. Factors to evaluate this criterion include the following:

1.

The area residents patronize or are employed at the use;

2.

Current management practices that eliminate problems such as noise, waste materials, competition for on-street parking, or similar conflicts;

3.

The non-conformity's history of complaints against it; and,

4.

The non-conformity has been maintained in good condition or that the non-conformity represents a disincentive for such maintenance.

b.

The BZA shall determine that the non-conformity is generally integrated into the community and has minimal adverse impacts. The BZA may require appropriate conditions and safeguards to assure that the non-conformity does not adversely affect orderly development and the value of nearby property, including, but not limited to:

1.

Required improvement of, or modifications to existing improvements on the property;

2,

Limitations on hours of operations;

3.

Limitations on the nature of operations.

(4)

Effect. The granting of a conditional use approval eliminates the non-conformity.

(Ord. No. O-18-68, § 3(Exh. A), 12-20-18)

(a)

Provisions to cite and impose.

(1)

No person shall locate, erect, construct, reconstruct, enlarge, change, maintain, or use any building or use any land in violation of this Zoning Code, or amendment or supplement thereto, and each day such violation continues is a separate offense.

(2)

In case any building is or is proposed to be located, erected, constructed, reconstructed, enlarged, changed, maintained, or used, or any land is or is proposed to be used in violation of this Zoning Code or any amendments or supplements thereto, City Council, the City Law Director, the City Planning Commission, the Board of Zoning Appeals, the Zoning Administrator, the Building Inspector, the Code Enforcement Officer, or any adjacent or neighboring property owner who would be specially damaged by such violation and elects to pursue such action at their own cost and expense, in addition to other remedies provided by law, may institute an action seeking injunction, mandamus, abatement, or any other appropriate action or proceeding to prevent, enjoin, abate, or remove such unlawful location, erection, construction, enlargement, change, maintenance, or use.

(3)

For the purposes of the violations and penalties provided for herein, "person" shall include the owner or tenant of any building, structure, land or premises, or part thereof, and any architect, builder, contractor, agent, or other person who commits, participates in, assists in, allows or maintains such violation may be subject to the jurisdiction of a court of competent jurisdiction and each be found liable for each separate offense and be subject to the order of the court, if processed to such conclusion after any such person involved in the violation has been duly notified by the Zoning Administrator in ordering the violation to be abated within a time period specified in accordance with Section 1135.14(c) (Violation and remedies notification requirements).

(b)

Declaration of common nuisance. Any building, erected, raised or converted, or land or premises used in violation of any provisions of this Zoning Code or the requirements thereof, may be declared to be a common nuisance and as such may be abated in such manner as nuisances are now or may hereafter be abated under existing law.

(c)

Violation and remedies notification requirements. Notice of violation made in accordance with requirements of this section shall be provided by the Zoning Administrator to the violator(s) involved in the event the Zoning Administrator finds a violation exists as described in Section 1135.14(a) (Provisions to cite and impose), as observed by the Zoning Administrator or from investigation into a verbal or written complaint of such made to the Zoning Administrator. The violation notice shall also state the remedy ordered of the violator(s), the time period within which to do so and advise the violator(s) of their right to appeal the order and of the potential consequences if convicted of not complying with the order if upheld valid to impose. The provisions so regarding are specified as follows:

(1)

Notice of violation. The required written notice of violation to be provided by the Zoning Administrator shall contain the following:

a.

The name(s) and address(es) of the violator(s);

b.

The parcel identification number and road address of the parcel(s) where the violation exists;

c.

Description of the violation and citation of the zoning requirements being violated;

d.

Statement of the remedy ordered necessary and time period allowed to do so; and,

e.

Statement of violator(s) right to appeal and potential consequences of non-compliance.

(2)

Violation notice delivery. The required notice of violation shall be delivered by the Zoning Administrator in any of the following ways for purpose of notifying the violator(s) involved:

a.

By Certified Mail addressed to the violator(s) last known address, service shall be deemed complete when a Certified Mail receipt (printed or electronic) is received or returned undeliverable or refused; or,

b.

By Certified Mail and ordinary U.S. first-class mail with a Certificate of mailing simultaneously, addressed to the violator(s) last known address. Service shall be deemed complete when a Certified Mail receipt is received or ordinary U.S. first-class mail is not returned after 15 days of mailing or returned undeliverable or refused; or,

c.

By personal delivery to the violator(s) responsible, or by leaving the notice at the usual place of residence thereof; or

d.

By posting a copy of the notice at a conspicuous place on the premises of the violation, as signed and dated by an adult witness on the notice so delivered and by the same on file copy.

(d)

Required remedy, potential appeal, and non-compliance consequences.

(1)

Required remedy. Each violation specified in the violation(s) notice prepared and delivered in accordance with Section 1135.14(c) (Violation and remedies notification requirements) is required to be remedied by the violator(s) as specified in the violation(s) notice within the time period allowed to do so.

(2)

Remedy time period. The time period allowed to a violator to remedy a violation shall be as specified in the notice of violation delivered by the Zoning Administrator, as determined reasonable by the Zoning Administrator, or as otherwise specified in this Zoning Code. The Zoning Administrator may order a violation to cease and desist immediately if the nature of the violation constitutes a readily apparent danger to public health or safety.

(3)

Potential to appeal. The violator(s) may file an appeal to the Board of Zoning Appeals (BZA) for relief or release from having to comply with the remedy ordered in violation(s) notice delivered by the Zoning Administrator, provided the appeal meets all requirements specified in Section 1135.08 (Administrative Appeals) of this Zoning Code. Filing of an appeal to the BZA shall stay the time period ordered in the notice for compliance. If the BZA denies the appeal, the applicant may seek relief from the Common Pleas Court of Clinton County.

(4)

Non-compliance potential consequences. Failure of the violator(s) to comply with the remedy ordered and the time period in which to do so specified in the violation(s) notice delivered would be considered an additional violation, in the absence of an appeal to the order being granted by the BZA or the Court of Common Pleas. Consequences of non-compliance may result in penalties as determined by the applicable court of jurisdiction.

(5)

Penalties. Any person found, by a court of competent jurisdiction, in violation of the Zoning Code shall be subject to such court ordering all legal and equitable remedies available, including but not limited to:

a.

The court issuing a temporary injunction or restraining order;

b.

The court ordering abatement within 30 days of the filing of a final and appealable judgment; and in the event the person so ordered fails to timely abate any violations, if the party bringing the action is City Council, the City Law Director, the Planning Commission, the Board of Zoning Appeals, the Zoning Administrator, the Building Inspector or the Code Enforcement Officer, the court granting such party access to the property upon which the violations are located in order to abate the violations and assessing the costs, charges and expenses of abating such violations against the property upon which the violations are located and certifying such costs to the County Auditor to be placed on the real property tax duplicate to be collected by the County Treasurer; and,

c.

Permanently enjoining the person from further violations of the Zoning Code and subjecting such person to contempt upon a showing of failure to comply with the Court's Order or further violations without cause including but not limited to imposing a fine of not more than $500.00 for each offense. Each day a violation continues shall be a separate offense.

(Ord. No. O-18-68, § 3(Exh. A), 12-20-18)