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HomeMy WebLinkAboutResolution No. PZ2012-05CITY OF KENAI PLANNING AND ZONING COMMISSION RESOLUTION NO. PZ12 -05 A RESOLUTION OF THE KENAI PLANNING AND ZONING COMMISSION RECOMMENDING KENAI CITY COUNCIL AMEND KENAI MUNICIPAL CODE SECTION 14.20.150, "CONDITIONAL USE PERMITS," TO EXPAND THE AUTHORITY OF THE PLANNING & ZONING COMMISSION TO CONSIDER REQUESTS FOR EXTENSIONS OF PERMITS IN SITUATIONS WHERE THE CONDITIONAL USE PERMIT HAS LAPSED OR EXPIRED DUE TO NON -USE; TO EXTEND THE TIME FOR EXTENSIONS FROM 6 MONTHS TO UP TO ONE (1) YEAR EACH; AND, TO PROVIDE AN EXPRESS APPEAL PROCESS. WHEREAS, under the Kenai Zoning Code, owners and lessees of real property located in the City of Kenai may obtain a conditional use permit to allow an owner to use their property under certain conditions that help assure that a conditional use is compatible with the other uses in the zoning district and with the surrounding conditions in the neighborhood; and, WHEREAS, under the Kenai Zoning Code, KMC 14.20.150(i), a conditional use permit lapses twelve (12) months after its approval if the property owner or lessee does not obtain a building permit or does not initiate the permitted use; and, WHEREAS, under KMC 14.20.150(i), a conditional use permit also automatically expires if the conditioned use is initiated by the property owner or lessee but then the use ceases to continue that conditioned use for a period of one year or longer; and, WHEREAS, the City's Planning and Zoning Commission may grant time extension for permits for up to six months if the property owner or lessee applies for an extension before the lapse or expiration of the permit and upon a finding by the Commission that circumstances have not changed sufficiently to warrant reconsideration of the approval of the conditional use permit; and, WHEREAS, unless the property owner or lessee files their request for an extension of their conditional use permit prior to lapse or expiration of the permit, and that extension is approved, the lapse or expiration of the permit is automatic and the City Code does not require the City to notify the property owner or lessee that the conditional use permit will lapse or expire (although the current practice is to provide such notice); and, WHEREAS, property owners and lessees may not always be aware of the automatic lapse or expiration of their permits, particularly where there may be questions about when a particular use initiated has ceased according to the City; and New Text Underlined; [DELETED TEXT BRACKETED] Resolution PZ2012 -05 Page 2 of 6 WHEREAS, conditional use permits are significant property rights upon which property owners and lessees rely by investing their time and money in their property, thereby contributing to the growth of economic activity in the City of Kenai; and, WHEREAS, poor economic conditions and other circumstances may cause a property owner or lessee to cease a conditioned use for a period of time until the economic conditions or circumstances improve, and the property owner or lessee then may desire to re- initiate the conditioned use; and, WHEREAS, in order to support business and other property investment in the community it is in the best interests of the City to provide the Commission with more flexibility to consider requests for extensions of longer than 6 months as well as under circumstances where the permit would have already automatically lapsed or expired; and, WHEREAS, to balance the interests of the City with respect to maintaining the integrity of neighborhoods and the interest of the property owner or lessee with respect to protecting their investment in a property, the Commission should also be able to entertain applications for extensions of a permit unless the City provided the property owner with express, written notice that the permit will automatically lapse or expire, in which case the property owner will have 90 days to request an extension of time to continue the permit; and, NOW, THEREFORE, BE IT RESOLVED THAT THE PLANNING AND ZONING COMMISSION RECOMMENDS THAT THE COUNCIL OF THE CITY OF KENAI, ALASKA, AMEND KENAI MUNICIPAL CODE as follows: Section 1. Form: This is a Code ordinance. Section 2. Amendment of Section 14.20.150 of the Kenai Municipal Code: The Kenai Municipal Code, Section 14.20.150, Conditional use permits, is hereby amended as follows: 14.20.150 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 allowed 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. New Text Underlined; [DELETED TEXT BRACKETED] Resolution PZ2012 -05 Page 3 of 6 (b) 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; (2) Verification by the owner of the property concerned if other than the applicant; (3) A legal description of the property involved; (4) A description of the proposed use; (5) Dimensioned plot plans showing the location of all existing and proposed buildings or alteration, 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. (c) Public Hearing: If the application is in order, a public hearing shall be scheduled in accordance with the requirements of KMC 14.20.280. (d) Review Criteria: Prior to granting a conditional use permit, it shall be established that the use satisfies the following conditions: (1) The use is consistent with the purpose of this chapter and the purposes and intent of the zoning district; (2) The value of the adjoining property and neighborhood will not be significantly impaired; (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 should be met by the applicant. 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. (e) 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. New Text Underlined; [DELETED TEXT BRACKETED] Resolution PZ2012 -05 Page 4 of 6 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. Revocation for Noncompliance /Compliance Notices: If the Commission determines, 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) 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 paragraph, it shall send a notice of compliance to the Commission and the permit holder. (h) Modification of Final Approval: (1) An approved conditional use permit may, upon application by the permittee, be modified by the Planning and Zoning Commission; (a) When changed conditions cause the conditional use to no longer conform to the standards for its approval; (b) 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. (i) 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) THE COMMISSION MAY GRANT TIME EXTENSIONS NOT TO EXCEED SIX (6) MONTHS EACH UPON A FINDING THAT CIRCUMSTANCES HAVE NOT CHANGED SUFFICIENTLY TO WARRANT RECONSIDERATION OF THE APPROVAL OF THE CONDITIONAL USE PERMIT. A REQUEST FOR AN EXTENSION MUST BE SUBMITTED PRIOR TO THE EXPIRATION OF THE PERMIT. A PUBLIC HEARING SHALL NOT BE REQUIRED PRIOR TO GRANTING AN EXTENSION OF TIME.] ([3]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 year each upon a New Text Underlined; [DELETED TEXT BRACKETED] Resolution PZ2012 -05 Page 5 of 6 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 subparagraph (1) or that the permit has expired under subparagraph (2) 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. The Commission may, but is not required to, hold a public hearing prior to issuing a decision under this subparagraph (3). (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 subparagraph (3), above, the time for appeal of the administrative official's determination of lapse or expiration shall not run until such time as the Commission has made a final decision on the request for a stay. ([4]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. (j) 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 3. Severability: 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 4. Effective Date: Pursuant to KMC 1.15.070(f), this ordinance shall take effect one month after adoption. New Text Underlined; [DELETED TEXT BRACKETED] Resolution PZ2012 -05 Page 6 of 6 Dated at Kenai, Alaska this 22nd day of February 2012. New Text. Underlined; [DELETED TEXT BRACKETED]