Loading...
HomeMy WebLinkAboutOrdinance No. 2611-2012the cry "! KENAI, ALASKA Sponsored by: Council Member Molloy CITY OF KENAI ORDINANCE NO. 2611 -2012 AN ORDINANCE OF THE COUNCIL OF THE CITY OF KENAI, ALASKA, AMENDING SECTION 14.20.150, "CONDITIONAL USE PERMITS," TO EXPAND THE AUTHORITY OF THE PLANNING 85 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 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, New Text Underlined; [DELETED TEXT BRACKETED] Ordinance No. 2611 -2012 Page 2 of 6 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, WHEREAS, the Planning and Zoning Commission, through its Resolution No. PZ12- 05, recommends that the Council amend the Kenai Municipal Code as set forth herein. NOW, THEREFORE, BE IT ORDAINED BY THE COUNCIL OF THE CITY OF KENAI, ALASKA, 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] Ordinance No. 2611 -2012 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) (2) (3) (4) (5) (6) Name and address of the applicant; Verification by the owner of the property concerned if other than the applicant; A legal description of the property involved; A description of the proposed use; Dimensioned plot plans showing the location of all existing and proposed buildings or alteration, and such data as may be required; and 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) (2) (3) (4) (5) (6) The use is consistent with the purpose of this chapter and the purposes and intent of the zoning district; The value of the adjoining property and neighborhood will not be significantly impaired; The proposed use is in harmony with the Comprehensive Plan; Public services and facilities are adequate to serve the proposed use; The proposed use will not be harmful to the public safety, health or welfare; and, 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] Ordinance No. 2611 -2012 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 pei iiiittee, 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. New Text Underlined' [DELETED TEXT BRACKETED] Ordinance No. 2611 -2012 Page 5 of 6 O) (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 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 peunittee 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 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 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. 04]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. 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. New Text Underlined DELETED TEXT BRACKETED Ordinance No. 2611 -2012 Page 6 of 6 Section 4. Effective Date: Pursuant to KMC 1.15.070(0, this ordinance shall take effect one month after adoption. PASSED„ BY THE COUNCIL OF THE CITY OF KENAI, ALASKA, thik o day of i�� - ^✓ , 2012. ATTEST: San ra 'godfgh, City Clerk PAT PORTER, MAYOR Introduced: March 7, 2012 Adopted: March 21, 2012 Effective: April 21, 2012 New Text Underlined; [DELETED TEXT BRACKETED] MEMO /War with a Past, y with a Future" hers '�Ii� 210 Fidalgo Avenue, Kenai, Alaska 99611 -7794 1992 Telephone: 907 - 283 -7535 / FAX: 907 - 283 -3014 DUM TO: FROM: DATE: SUBJECT: Mayor Pat Porter and City Council Members Council Member Bob Molloy February 28, 2012 Ordinance No. 2611 -2012 My memo to Planning & Zoning Commission dated February 20, 2012 should be in the meeting packet. At its February 22, 2012 meeting, the Planning & Zoning Commission's view was that the right of the holder of a conditional use permit (a "permittee ") to apply for time extensions should not be in perpetuity, that there should be a limit to the number of times a permittee may apply for a time extension. Accordingly, the Commission voted unanimously to amend PZ12 -05 as to proposed new paragraph (i)(3) -- by adding the language that I have underlined below -- thereby recommending that Council include that language in this ordinance: (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 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). The Commission raised an important issue about perpetuity, and the amendment recommended for (i)(3) by the Commission is included in the ordinance. However, after further thought, the underlined language can be interpreted to apply only to the circumstances where code - 1 - enforcement hasn't send a notice letter. There would need be a time limit on the extensions that can be granted to a permittee even where code enforcement has sent a notice letter to the permittee, or the perpetuity issue is not really resolved. The proposal to resolve this issue tracking the Commission's use of two (2) years, is to add an additional sentence, and is set out in the language underlined below (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 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. A permittee may be granted time extensions not to exceed a total of two (2) years from the date of the Commission's qrant of the first time extension. The Commission may, but is not required to, hold a public hearing prior to issuing a decision under this subparagraph (3). The Council's consideration and support of Ordinance 2611 -2012 is respectfully requested. -2- 1\) KENAI, ALASKA MEMO: 'flaye with a Past, Gi with a Future" 210 Fidalgo Avenue, Kenai, Alaska 99611 -7794, Telephone: 907 - 283 -7535 / FAX: 907 - 283 -3014 111111 TO: FROM: DATE: SUBJECT: Rick Koch, City Manager Marilyn Kebschull, Planning Administration February 24, 2012 1992 Ordinance No. 2611 -2012 - An Ordinance Of The Council Of The City Of Kenai, Alaska, Amending 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. Councilor Molloy is sponsoring an amendment to KMC 14.20.150, "Conditional Use Permits" to expand the authority of the Planning and Zoning Commission to consider requests for extensions ofpermits in situations where the Conditional Use Permit has lapsed or expired due to non -use. The ordinance would also extend the time for extensions from 6 months up to one (1) year each and to provide for an express appeal process as identified in KMC 14.20.290. The Commission considered the amendment and held a public hearing on February 22 "d. The Commission was concerned that the wording in the ordinance could provide for a permit holder to request extensions in perpetuity. To hopefully limit the time frame for a request, the Commission amended the proposed ordinance in section KMC 14.20.150(i)(3) by adding, "within two (2) years of the date the permit was issued or the use ceased, whichever is later" after "the permittee may request a time extension at any time." With the amendment, the resolution in support of the ordinance passed unanimously. After the meeting, Councilor Molloy considered the Commission's concerns and agreed that the issue that had been raised had merit. Councilor Molloy added additional language to the ordinance that is before the Council. The additional language was added to the same section, KMC 14.20.150(i)(3). That section now reads (new text italicized): (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 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 pennittee must request a Rick Koch, City Manager Ordinance No. 2611 -2012 February 24, 2012 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. A permittee may be granted time extensions 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 subparagraph (3). Administration supports the ordinance before the Council. KENAI ALASKA CITY 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) (2) (3) (4) (5) (6) Name and address of the applicant; Verification by the owner of the property concerned if other than the applicant; A legal description of the property involved; A description of the proposed use; Dimensioned plot plans showing the location of all existing and proposed buildings or alteration, and such data as may be required; and, 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 (0 (g) 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 pelinit 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 0) 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 an time within two 2 ears of the date the .ermit 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]) 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. 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(1), 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] P~~ C# 210Fidulgo Avenue, Kenai, Alaska 49611'7794 Telephone: 0U7-2Q3'7535/ FAX: 9O7-283-3814 �� ^�J������� � ����RANDU ]M = TO: Jeff |ma|t Chair ~Planning & Zoning Commission Commissioners Bryson, Knackstedt, Koester, Peterson, Rowell, and Smith FROM: Council Me0Aber���by���llVy /~� DATE: ,..__ _ � 20, ��|��� �e�muary2Q/2Q1Z SUBJECT: Resolution No. PZ12~05 Ordinance No. [Dra0-2012 r�--" ===� Conditional use permits are significant property rights upon which property owners and lessees rely by investing their time and money in their property, and thereby contributing to the growth of economic activity in the City ofKenai. A property owner who operates a business in the City of Kenai under a conditional use perrnit closed that business for a period of time due to the downturn in the economy. The property owner has pians to continue the use of that property for the business under the conditional use. permit because economic conditions and circumstances are improving, but had significant concerns over the City's automatic expiration of a conditionai use permit if the use ceases for a period of one (1) year ar onger, WhUe the Code Enforcemerits practice is to provide notice to the property owner before the permit automatically expires, there is nothing in the City Zoning Gede which requires that practice, AIso, the Gity Zoriing Gode provides no direction to properly owners urlessees: there is nothing on the property owners ability to ffle an appHcation requesting a time oxiension, And at presenit tbe Zoning Code gives authority to the Planning & Zoning Commission to grant time extensions only upon a finding that circumstances have not changed sufficiently to warrant reconsideration of the approval of the conditional use permit; and the time extensions are not to exceed six (6) months each. The Planning Department does an annual review ef perrnits and not a serni-annoal review, Discussion Any proposed solutions in Code to these issues need to be in the best interest of the City of Kenai as applied to all permit holders or "permittees," not just applied to the individual property owner's circumstances Ordinance No foraftl- 2012 proposes the followino solutions to these 1 - Memo to Commission (1) A permittee must request a time extension in writing, and submit any supporting materials, within 90 days of the date of the administrative official's notice to the perMittee thot, by a date certain, either the perrnit has lapsed [if no building permit is procured or if the allowed use is not initiated] or has expired [if for any reason the conditioned use has ceased for a period of aria voar or /onge;j. See proposed KMC 14.20.150(i`(3). (2) If the administrative official has not issued a written notice concerning lapse or expiration, the permittee may request a time extension at any time. See proposed KMC (3) The authority of the Co m ssion is expanded: (a) To grant a tirne extension upon a finding either that (1)"circumstances have not changed sufficiently to warrant reconsideration of the approval of the conditional use permit," as in the current Codetor that (2) other "aood cause exists to grant the time extension.' See proposed K&1C1420.15O(i)(3). (b) To grant a time extension for periods not to exceed one year each, nstead of six rnonths as i:i the current Code, See proposed Kk8Cl4,20.1500}(5) The additional time period should coordinate better with the Planning Department's annual review process. (4) The Commission may but is not required to, hold a pub|io hearing prior to granting an extension of time or issuing a decision on the application for time extension. See proposed KMC 14.20.15O(i)(3) Current Code provides that `a public hearing uha|l not be required prior to granting an extension of dma." (5) U the per/nihes 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 |onger, the permittee may appeal the official's determination to the Board of Adjustment. However, if the permittee has requested a stay by filing an application for time extension, then the time for appeal does not begin to run until the Commission has made a final decision on the request for stay. See proposed KMC i42O.150(i)(4) and (G). This allows the per'xi8ee. and the City` to consolidate the appeals of the administrative official's decision and the Commission's decision; and appeal procedures are in accordance with KMC142O290. Your recommendations and action on proposed P212-OS and Ordinance No. [DraOl-2O12 is respectfully requested. Acknowledgements in the past, | have said publicly that when the Council sits on the dais in cneobngu, we dont sit alone. That's especially true oflegislation. For their vn|uab|e. assistance in crafting proposed solutions in the Kenai Zoning Code to these issues, and in making sure that this draft Ordinance is properly before the Commission for public hearing, many thanks GO to: Nancy Carver, Planning & Zoning Anoiytant, for coda enforcement perspective and packet items; Marilyn KebsthU||, Planning Administration, for big picture perspective and packet items; Rick Koch, City Manager, also for big picture perspective; Krista S. Stearns, City Attorney, for consultations, legal advice, excellent word-smithing, and packet items; and to Sandra K. &Vndigh' City Clerk, and Corene Hall, Deputy Clerk, for timely publication. 2- Memo tnCommission