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HomeMy WebLinkAboutOrdinance No. 3316-2022Sponsored by: Vice Mayor Glendening KENAI CITY OF KENAI ORDINANCE NO. 3316-2022 AN ORDINANCE AMENDING KENAI MUNICIPAL CODE 14.20.150-CONDITIONAL USE PERMITS, TO FURTHER CLARIFY ROLES AND RESPONSIBILITIES OF APPLICANTS, THE PLANNING DIRECTOR, AND THE PLANNING COMMISSION IN THE CONDITIONAL USE PROCESS. WHEREAS, Council recently, through Ordinance No. 3243-2021, amended KMC 14.20.150- Conditional Use Permits, to improve the conditional use process for applicants and the public; and, WHEREAS, recent public hearings at the Planning and Zoning Commission's meetings and board of adjustment hearings demonstrate further changes are needed to define the roles and responsibilities within the process and improve decisions made by the Commission; and, WHEREAS, the amendments within this Ordinance are primarily intended to ensure decisions are made based on applicable standards within city code based on substantial evidence; and, WHEREAS, other changes include reporting requirements to Council and that public hearings are held prior to any permit revocations; and, WHEREAS, at its meeting on September 14, 2022, the Planning and Zoning Commission recommended approval of this Ordinance. NOW, THEREFORE, BE IT ORDAINED BY THE COUNCIL OF THE CITY OF KENAI, ALASKA, AS FOLLOWS: Section 1. Amendment of Section 14.20.150 of Kenai Municipal Code: That Kenai Municipal Code, Section 14.20.15 Conditional Use Permits, is hereby amended as follows: 14.20.160 Conditional use permits. (a) Intent. It is recognized that there are some uses that may be compatible with designated principal uses in specific zoning districts provided certain conditions are met. The conditional use permit procedure is intended to allow flexibility in the consideration of the impact of the proposed use on surrounding property and the application of controls and safeguards to assure that the proposed use will be compatible with the surroundings. The Commission may permit this type of use if the conditions and requirements listed in this chapter are met. The conditional uses are listed in the Land Use Table. Before a conditional use permit may be granted, the procedures specified in this chapter must be followed. The grant, denial, modification, or revocation of a conditional use permit is discretionary but must be based on findings supported by substantial evidence and City ordinances. (b) Pre -Application Meeting. Every conditional use permit applicant must contact the Planning Director for a pre -application meeting with the Planning Director or designee before the application is submitted to the Commission in order to ensure applications are complete and the applicant is familiar with the conditional use permit public hearing process. If an application is determined to be New Text Undedlned; [DELETED TEXT BRACKETED] Ordinance No. 3316-2022 Page 2 of 5 incomplete by the Planning Director, the application may be resubmitted to the Planning Director with changes or new information as many times as necessary, or the applicant may request a review with the City Manager whose determination shall be final and reported to the City Council. The review by the Planning Director is to determine that sufficient information is presented to allow the Commission a meaningful review [AND HAS NO BEARING ON WHETHER AN APPLICATION SHOULD BE GRANTED OR DENIED BY THE COMMISSION]. (c) Applications. Applications for a conditional use permit shall be filed in writing with the Planning Department. The application shall include, but is not limited to, the following: (1) Name and address of the applicant and name and address of the property owner if not the applicant; (2) Verification by the owner of the property concerned if other than the applicant; (3) The street address and a legal description of the property involved; (4) A description of the proposed use and how the use satisfies the review criteria including any applicable evidentiary support; (5) Dimensioned plot plans showing the location of all existing and proposed buildings or alteration, conceptual drawing and such data as may be required; and (6) The appropriate fee as set forth in the City's schedule of fees adopted by the City Council. The application and its plans shall be posted to the City's website at time of publication of Commission packet. (d) Public Hearing. If the application is in order, a public hearing shall be scheduled in accordance with the requirements of KMC 14.20.280. An applicant or representative of the applicant must be present in person or by remote device for the application to be considered at the public hearing. If the applicant or representative is not present at the scheduled public hearing and has not provided reasonable timely notice of unavailability to the Planning Department or Commission, the application will be dismissed by the Commission without a public hearing and the applicant may reapply at any time after paying a new application fee. (e) Review Criteria. Prior to granting a conditional use permit, it shall be established by substantial evidence that the use satisfies all the following criteria: (1) The use is consistent with the purpose of this chapter and the purposes and intent of the zoning district; (2) The economic and noneconomic value of the adjoining property and neighborhood will not be significantly impaired; New Text Underlined. [DELETED TEXT BRACKETED] r— Ordinance No. 3316-2022 Page 3 of 5 (3) The proposed use is in harmony with the Comprehensive Plan; (4) Public services and facilities are adequate to serve the proposed use; (5) The proposed use will not be harmful to the public safety, health or welfare; and (6) Any and all specific conditions deemed necessary by the Commission to fulfill the above - mentioned conditions. These may include, but are not limited to, measures relative to access, screening, site development, building design, operation of the use and other similar aspects related to the proposed use as provided for in City ordinance, including the Land Use Table. The Commission may approve, approve with conditions, dismiss, or deny the application. The Commission must make specific findings in its decision addressing all six (6) of the required criteria stated above. Any relevant evidence may be considered by the Commission in its decision. (f) Burden of Proof. The applicant for a conditional use permit has the burden to show by substantial evidence that the six (6) criteria above are satisfied. Substantial evidence is such relevant evidence a reasonable mind might accept as adequate to support a conclusion. (g) Staff Report. The Planning Director or designee will provide a staff report on the application to the Commission at the public hearing. The staff report may contain any information deemed pertinent by the Planning Director or designee, and may include a recommendation and proposed findings on whether the requirements of this chapter have been met and whether any additional specific conditions are recommended. The Commission may consider the recommendations of the Planning Director or designee, but shall accord it no deference. Evidentiary findings by the Planning Director or designee shall be considered. The staff report does not relieve the applicant's burden of proof. (h) Issuance of the Permit. Following approval by the Commission, the administrative official shall not issue the permit until the expiration of the fifteen (15) day appeal period contained in KMC 14.20.290. After approval by the Commission and before the issuance of the permit, the administrative official must determine that the applicant is current on all obligations (e.g., sales tax, property tax, lease payments, utility payments) to the City or has entered into an approved payment plan with the City on any obligations owed and the applicant is in compliance with the payment plan and (if the permit is for a use required to collect sales tax) must show a valid borough sales tax account. If a timely appeal is filed pursuant to KMC 14.20.290, the permit shall not be issued unless authorized by the Board of Adjustment. (i) Yearly Reports. The permit holder shall submit a yearly report between October 1st and December 31st to the administrative official. Such report shall include a summary of the on -site activity. Q) Revocation for Noncompliance/Compliance Notices. If the Commission determines after a public Le hearing, based on the yearly review or any other investigation undertaken by the official, that the conduct of the operation(s) is not in compliance with: (1) the terms and conditions of the permit; (2) New Text underlined; [DELETED TEXT BRACKETED] Ordinance No. 3316-2022 Page 4 of 5 the provisions of the Kenai Zoning Code; (3) or that the permit holder is not current on any obligations (e.g., sales tax, property tax, utility payments, lease payments) to the City unless the applicant has entered into an approved payment with the City on any obligations owed and the applicant is in compliance with the payment plan, the Commission may revoke the permit. The Commission shall not revoke the permit until the permit holder has been notified and given reasonable opportunity to correct the deficiency(s) or to provide information relating to or rebutting the alleged deficiency(s). Appeals from decisions under this section shall be made in accordance with the provisions of KMC 14.20.290. If the administrative official determines the permit holder is in compliance with the conditions in this subsection, or notifies the permit holder of a potential violation in writing, the administrative official shall send any notice of compliance or notice of violation to the Commission and the permit holder in a timely manner. (k) Modification of Final Approval. (1) An approved conditional use permit may, upon application by the permittee, be modified by the Planning and Zoning Commission: (i) When changed conditions cause the conditional use to no longer conform to the standards for its approval; (ii) To implement a different development plan conforming to the standards for its approval; (2) The modification application shall be subject to a public hearing and the appropriate fee as set forth in the City's schedule of fees adopted by the City Council in order to help cover the costs of the public hearing notice. (1) Expiration —Extensions —Transferability. (1) An approved conditional use permit lapses twelve (12) months after approval if no building permit is procured or if the allowed use is not initiated. (2) A conditional use permit shall automatically expire if for any reason the conditioned use ceases for a period of one (1) year or longer. (3) The Commission may grant time extensions to stay the lapse or the expiration of a permit for periods not to exceed one (1) year each upon a finding that circumstances have not changed sufficiently to warrant reconsideration of the approval of the conditional use permit or that good cause exists to grant the time extension. A permittee must request a time extension in writing, and submit any supporting materials, within ninety (90) days of the date of the administrative official's written notice to the permittee that either the permit has lapsed under subsection JUD of this section or that the permit has expired under subsection JUQ of this section by a date certain. If the administrative official does not issue a written notice concerning lapse or expiration, the permittee may request a time extension at any time within two (2) years of the date the permit was issued or the use ceased, whichever is later. A permittee may be granted time extensions New Text Underlined; [DELETED TEXT BRACKETED] NO Ordinance No. 3316-2022 Page 5 of 5 not to exceed a total of two (2) years from the date of the Commission's grant of the first time extension. The Commission may, but is not required to, hold a public hearing prior to issuing a decision under this subsection. (4) A permittee who disputes the administrative official's determination that the conditioned use has not been timely initiated or has ceased for a period of one (1) year or longer may appeal the official's determination to the Board of Adjustment in accordance with KMC 14.20.290. If the permittee has requested a stay under subsection fin of this section, the time for appeal of the administrative official's determination of [apse or expiration shall not run until such time as the Commission has made a final decision on the request for a stay. (5) A conditional use permit is not transferable from one (1) parcel of land to another. Conditional use permits may be transferred from one (1) owner to another for the same use, but if there is a change in use on the property, a new permit must be obtained. (6) Appeals from decisions of the Commission under this section shall be made in accordance with the provisions of KMC 14.20.290. (m) A proposed conditional use permit shall not be considered if a substantially similar conditional use permit has been considered and denied within the nine (9) months immediately preceding. Section 2. Severability: That if any part or provision of this ordinance or application thereof to any ` person or circumstances is adjudged invalid by any court of competent jurisdiction, such judgment shall be confined in its operation to the part, provision, or application directly involved in all controversy in which this judgment shall have been rendered, and shall not affect or impair the validity of the remainder of this title or application thereof to other persons or circumstances. The City Council hereby declares that it would have enacted the remainder of this ordinance even without such part, provision, or application. Section 3. Effective Date: That pursuant to KMC 1.15.070(f), this ordinance shall take effect 30 days after enactment. ENACTED BY THE COUNCIL OF THE CITY OF KENAI, ALASKA, THIS 5T" DAY OF OCTOBER, 2022. ATTEST: JJUQ11�11 e ane M , City Clerk Brian Gabriel Sr., Mayor Introduced: September 7, 2022 Enacted: October 5, 2022 LEffective: November 4, 2022 New Text Underlined; [DELETED TEXT BRACKETED] K I N A City of Kenai 1 210 Ficialgo Ave, Kenai, AK 99611-7794 1907,283.7535 I www.6naixity MEMORANDUM TO: Mayor Gabriel and Council Members FROM: Jim Glendening, Vice Mayor DATE: August 25, 2022 SUBJECT: Ordinance No. 3316-2022 Amending the Conditional Use Permits Process Council recently enacted Ordinance No. 3243-2021 amending KMC 14.20.150- Conditional Use Permits, to improve the conditional use process for applicants and the public. Recent public hearings at the Planning and Zoning Commission's meetings and board of adjustment hearings demonstrate further changes are needed to define the roles and responsibilities within the process and improve decisions made by the Commission. The following outlines the proposed changes: 1. Amend 14.20.150(a) to clarify that while the Commission has the discretion to grant, deny, modify or revoke a conditional use permit, such discretion must be based on substantial evidence and City Code supported by findings. 2. Amend 14.20.150(b) to require the City Manager report the results of any CUP application appeals made to him or her to the City Council. 3. Amend 14.20.150(b) by removing the language in the last sentence that states "and has no bearing on whether an application should be granted or denied by the commission" as it is unnecessary. It is already clearly stated that the Planners job in his review is to ensure that sufficient information is provided in the application to allow the Commission to have a meaningful review of the application. 4. Amend 14.20.150(c)(4) by adding that applicable evidentiary support for the granting of a conditional use permit should be included within the application process. 5. Amend 14.20.150(e) by emphasizing that the Commission must find that all required criteria in code are met and supported by substantial evidence prior to granting a conditional use permit. 6. Amend 14.20.150(e)(6) by adding language that clarifies that conditions placed on conditional use permits by the Commission must be based on applicable City Code. 7. Amend 14.20.150(g) by adding language to clarify that while the Commission does not have to give weight or deference to recommendations of the Planning Director with regard to whether a conditional use permit should be a granted or not, evidence presented to the Commission must be considered. This means that if the Planner provides evidence and the Commission choses to rely on other evidence or disagrees with the Planner regarding the evidence presented, the Commission must explain its decision in this regard. 8. Amend 14.20.1500) to require that a public hearing is held prior to the revocation of any conditional use permit. I request this Ordinance be removed from the Consent Agenda for introduction, so that it can be referred to the Planning and Zoning Commission to make a recommendation at its September 14, 2022 meeting, prior to Council's public hearing at its September 21, 2022 meeting. Your consideration is appreciated. Page 2 of 2 The City of Kenai I www.kenai.city KENAI City of Kenai 1 210 Fidalgo Ave. Kenai, AK 99611-7794 1907.283.7535 I w^^wkenaixity MEMORANDUM TO: Mayor Gabriel and Council Members FROM: Scott Bloom, City Attorney DATE: September 15, 2022 SUBJECT: Ordinance 3316-2022 Requested Amendment The purpose of this memo is to request an amendment to Ordinance 3316-2022 based on Planning and Zoning Commission action. The following amendment is respectfully requested. Motion Amend the last WHEREAS to read: At its meeting on September 14,2022, the Planning and Zoning Commission recommended approval of this Ordinance. Thank you for your consideration. KENAI City of Kenai 1210 Fidalgo Ave, Kenai, AK 99611-77941 907.283.75351 www.kenaixity MEMORANDUM TO: Mayor Gabriel and Council Members FROM: Henry Knackstedt, Council Member DATE: September 15, 2022 SUBJECT: Ordinance 3316-2022 Comments and Proposed Amendments The Ordinance proposing changes to 14.20.150-Conditional Use Permits does little to further define roles and responsibilities of the Planner or Planning & Zoning Commission in a constructive way. Instead the proposed changes make it easier to attack the decision of the Planning and Zoning Commission and arguably switch the burden from the applicant to prove the conditions for a conditional use permit are met to the Commission. Additionally, the proposed changes restrict ! the ability of the Commission to impose conditions and restrict the Commissions flexibility. Regardless of how good the findings may be, the public always has the right to appeal, and these changes largely place the decision of the Commission at greater risk by imposing more restrictions. The following are my proposed amendments to the Ordinance: 1) 14.20.150(a) Delete the proposed amendment at the end of the paragraph. Substantial findings are good, but all lesser findings should also make up the evaluation by the Commission. Additionally, City ordinances (code) are not always completely inclusive, and the Commission needs the ability to make applicable restrictive findings that could be outside of code. Additionally, KMC 14.50.150(f) provides that the applicant has the burden to show by substantial evidence that all six required criteria for grant a CUP are met, this new language adds an unnecessary burden on the Commission to substantiate a CUP. 2) 14.20.150(b) Retain the stricken language at the end of the paragraph. The stricken words are accurate and should remain. This section of code addresses the review by the Planner of CUP applications for completeness as related only to information provided in the application. Regardless of whether the information in an application supports the granting of a conditional use permit or not, all complete applications (application with sufficient information) are provided the Commission for a decision. It is unclear to me what the sponsor's intentions are in removing the verbiage. 3) 14.20.150(e) Delete the added language or modify as provided below. The new proposed language states that before granting a conditional use permit all criteria must be established by substantial evidence. It is the applicants burden to show this, as specifically stated in subsection (f) "The applicant for a conditional use permit has the burden to show by substantial evidence that the six (6) criteria above are satisfied." This new language is either duplicative and unnecessary, or means something else? If it is purely duplicative it should be removed or clarified by adding additional language as follows: "by substantial evidence as Presented by the applicant" (New language in bold) If it is not duplicative and means something new, it should be explained and made clear. 4) 14.20.150 (e)(6) Delete added language. This new language arguably restricts the ability and flexibility of the Planning and Zoning Commission to grant a CUP and add conditions to lessen the CUP's potential impact. For example; quiet times are not found in City Code, nor are the requirement for site obscuring fences, outdoor lighting restrictions or occupancy limits outside of fire marshal safety concerns. These are all conditions that could be reasonable to mitigate the impact of a business in a residential zone. I attended the Commission's review of this Ordinance and heard the City Attorney state that he would argue these types of conditions could be supported by language found in 14.20.150(a) regarding intent, but why require the City to make this argument, one that we could lose, when it was previously clear these conditions could be imposed. Is the sponsor's intent not to allow the imposition of these types of conditions? If it is not the intent to prohibit these types of conditions, then no change to the existing code language is necessary. If the intent is to prohibit these types of conditions, then I can not support the new proposed language. Page 2 of 2 The City of Kenai I www.kenai.city KENAI City of Kenai 1210 Fidalgo Ave, Kenai, AK 99611-7794 1907.283.7535 1 www.lcenaixity MEMORANDUM TO: Mayor Gabriel and Council Members FROM: Shellie Saner, City Clerk DATE: September 29, 2022 SUBJECT: Ordinance 3316-2022 — Postponed with a Motion to Amend on the Floor At the September 21, 2022 meeting Ordinance 3316-2022 was postponed with a motion to amend on the floor. The amendment motion on the floor proposed to amend Ordinance No. 3316-2022, Section 1, paragraph 14.20.150(a) to delete the proposed new language as shown below: "Intent. It is recognized that there are some uses that may be compatible with designated principal uses in specific zoning districts provided certain conditions are met. The conditional use permit procedure is intended to allow flexibility in the consideration of the impact of the proposed use on surrounding property and the application of controls and safeguards to assure that the proposed use will be compatible with the surroundings. The Commission may permit this type of use if the conditions and requirements listed in this chapter are met. The conditional uses are listed in the Land Use Table. Before a conditional use permit may be granted, the procedures specified in this chapter must be followed. The grant, denial, modification, or revocation of a conditional use permit is discretionary [BUT MUST BE BASED ON FINDINGS SUPPORTED BY SUBSTANTIAL EVIDENCE AND CITY ORDINANCES]." Prior to making any additional motions or amendments, the Council will need to resume discussion and voting on the proposed amendment shown above. POLICY NO. 2016-01 (Amended): Procedures for Commissions, Committees and Council on Aging Purpose The purpose of this policy is to establish procedures, other than those provided in KMC 1.90, for Commissions, Committees and Council on Aging. Scope This policy applies to all advisory bodies appointed by the City Council. The Planning and Zoning Commission is also regulated by KMC 14.05. Policy Appointment and Reappointments a. An application for consideration of appointment or reappointment to a Commission, Committee or Council on Aging must be submitted to the City Clerk. b. The Mayor nominates an applicant for appointment or reappointment and by motion, the City Council confirms. 2. Establishing Subcommittees a. A subcommittee of a commission or committee may be established for a specific function upon approval of Council. 3. Meeting Schedules a. Commission, Committee and Council on Aging meeting schedule is as follows: Commission/ Meeting Schedule Scheduled Meeting Days Committee/Council on Aging Airport Commission Monthly Second Thursday of the month Beautification Committee Meetings held January, Second Tuesday of the month April, May, September and October Council on Aging Monthly Second Thursday of the month Harbor Commission MGRthty Meetings held First Monday after first council February, March, April, meeting of the month May, June, August, September. and November Library Commission N/A N/A (Suspended as of 2015, Ordinance No. 2815-2015 Parks & Recreation Monthly, except for July First Thursday of the month Commission Planning & Zoning Commission Twice monthly Second & fourth Wednesdays Kenai City Council Policy No. 2016-01 (Amended) b. All regular meetings will be held in the Kenai City Hall Council Chambers with the exception of the Council on Aging who shall meet at the Senior Center, unless offsite arrangements are approved by the Clerk. Exceptions for subcommittee meetings may be made with the advance notice of the City Clerk. C. Regularly scheduled meetings shall begin at 7:00 p.m. unless otherwise approved by Council via motion, with the exception of the Council on Aging, which begins at 4:30 p.m. d. Commissions, Committees and Council on Aging may, with the City Clerk's approval and notification to Council and the City Manager, hold special meetings (for a specific purpose) on an as -needed basis. e. Commissions, Committees and Council on Aging meetings may be cancelled by the City Clerk, with notification to Council and the City Manager, if cancellation is warranted, i.e. lack of agenda items, pre -knowledge of lack of a quorum, etc. f. Any additional commissions or committees established will be set and incorporated into the meeting schedule by the City Council. 4. Minutes & Meeting Recordings a. With exception of the Planning & Zoning Commission, taking notes and electronically recording meetings shall be the responsibility of department liaison to the specific meeting body. The Clerk's Office shall take notes and record the meeting for the Plapning and Zoning Commission. b. Summary minutes will be produced by the Clerk's Office from the department liaisons notes and provided to the City Council as official records of the meetings. G. Regularly scheduled meetings shall be electronically recorded and with the exception of Planning & Zoning Commission, shall be kept for two years. d. Planning & Zoning Commission meeting recordings shall be kept for 6 years. 5. Work Sessions Work sessions may not be held without the approval of the City Clerk unless they occur on the night of and at the time of a regularly scheduled advertised meeting. Notification of scheduled work session shall be provided to City Council and the City Manager. Work session may be requested by Council, the liaison or Chair of the body. During work sessions, only items on the work session agenda may be discussed and no formal actions may be taken. C. At a minimum, work sessions shall be posted on the Official City Bulletin Board in Kenai City Hall and on the city website at least five days prior to the meeting. Page 2 of 4 Kenai City Council Policy No. 2016-01 (Amended) 6. Basic Meeting Information All meetings shall be open to the public. b. At a minimum, meeting notices shall be posted on the Official City Bulletin Board in Kenai City Hall and on the city website at least five days prior to the meeting. C. Meeting agenda's shall be established by the Chair and the department liaison. Items requiring Committee, Commission or Council on Aging action under applicable municipal code prior to final action by the Council, as distinguished from advisory recommendations, will be referred to the respective body prior to any final Council action. The City Council, by motion, may refer any other item to be placed on an agenda seeking a recommendation from the respective Committee, Commission, or Council on Aging. d. The department liaison shall submit items for the agenda and supporting documentation to the Clerk's Office one week prior to a meeting, no later than 2:00 p.m. The Clerk's Office will compile meeting material and distribute. The Planning & Zoning Commission is exempt from this requirement as the Planning Department advertises, compiles meeting material and distributes for its commission. e. Rules of Order: Pursuant to KMC 1.15.120(b) and KMC 1.90.050(c), in all matters of parliamentary procedure, Robert's Rules of Order, as revised shall be applicable and govern all meetings, except as specified in KMC 1.15.060 (Motions), KMC 1.15.100 (Speaking), and KMC 1.15.110 (Voting). f. Quorum: No meeting may proceed in the absence of a quorum, i.e. a quorum is more than one-half of the board/commission (quorum of the whole). g. Motion: Pursuant to KMC 1.15.060(k), all motions require a second. A majority of votes is required to pass a motion. h. Speaking: In a meeting, members should be recognized by the Chair before speaking. i. When is it a Meeting: If any public business is discussed collectively by four or a majority of members of one body. 7. Council Participation a. Any Council Member may attend a meeting or work session of any Commission, Committee or the Council on Aging. Only the Council Liaison to the respective, Commission, Committee or Council on Aging may speak on behalf of the Council. Participation by Council Members at Commission, Committee or Council on Aging meetings should be limited to introduction of legislation by one Council Legislative Sponsor. Participation by any other Council Members, written or oral, is discouraged. b. Exception: Council Members may fully participate in any joint work session or other meeting with a Commission, Committee, or the Council on Aging when it has been noticed that the City Council will be in attendance, or there has been a specific delegation of authority by the Council for a member(s) to represent the Council. Page 3 of 4 Kenai City Council Policy No. 2016-01 (Amended) Effective Date: I ATTEST: Heinz, CIVIC, City X Page 4 of 4 ENA j \HDED 1� Approved by Resolution No. 2016-03 Amended by Resolution No. 2017-24 Amended by Resolution No. 2018-21 Amended by Resolution No. 2019-03 RIAN GABRIEL SR., MAYOR