City of Kalamazoo, MI Review and Approval Procedures

The general provisions of this chapter 8 shall apply to all applications for development approval and procedures under this Ordinance, unless otherwise stated.

Authority to File Applications. Applications shall be submitted to the City Planner by the Community Planning and Development Department, the City Council or Planning Commission, or by the owner, or by any other person having a recognized interest in the land for which the development is proposed, or their authorized agent.

Community Development Department as Applicant. The authority of the Community Planning and Development Department to file an application pursuant to this Ordinance is limited to applications that may be required for activities or development on City-owned land.

Staff, City Council, or Planning Commission as Applicant. The authority of the City Council or Planning Commission to file an application pursuant to this Ordinance is limited to (a) applications for Text Amendments pursuant to § 8.3A, (b) applications for Zone Map Amendments pursuant to § 8.3B, (c) applications for creation, amendment, or rezoning of Planned Unit Overlay (PUD-O) districts pursuant to § 8.3C.

Applicant is Not Owner. If the applicant is not the owner of the land, or is a contract purchaser of the land, a letter signed by the owner consenting to the submission of the application shall be submitted. This provision does not apply to the submission of site plans, building permits, or sign permits.

Applicant is Not Sole Owner. If the applicant is not the sole owner of the land, a letter signed by the other owners or an association representing the owners consenting to or joining in the application shall be submitted. This provision does not apply to the submission of site plans, building permits, or sign permits.

Application Submission Schedule. The schedule for the submission of applications shall be established by the City Planner and made available to the public.

Application Contents. Applications required under this Ordinance shall be submitted in a form established by the City Planner and made available to the public.

Simultaneous Processing of Applications. Whenever two or more forms of review and approval are required under this Ordinance (e.g., a special use permit and a variance), the applications for those development approvals may, at the option of the City Planner, be processed simultaneously, so long as all applicable requirements are satisfied for both applications.

Fees.

Determination of Fees. The City Commission shall determine by resolution the fees to accompany all applications submitted under this Ordinance. The City Commission may adjust fee amounts from time to time.

Fees to be Paid. No application shall be processed until the established fee has been paid.

Refund of Fees. Application fees are not refundable except where the City Planner determines that an application was accepted in error, or the fee paid exceeded the amount due, in which case the amount of the overpayment will be refunded to the applicant.

Application Submission. An application for development approval shall be submitted to the City Planner pursuant to the application submittal schedule (§ 8.1B: Application Submission Schedule) along with a fee established pursuant to § 8.1E, Fees.

Determination of Sufficiency.

Determination of Sufficiency. Within seven days following receipt of the application, the City Planner shall determine if the application is complete, meets all relevant threshold requirements and includes data in sufficient detail to evaluate the application to determine whether it complies with the requirements of this Ordinance.

Determined Insufficient. If the City Planner determines the application is not sufficient, a notice shall be provided to the applicant specifying the application's deficiencies. When the application is determined sufficient, it shall be reviewed pursuant to the procedures and standards of this chapter. If the applicant fails to correct the deficiencies within 60 days, the application shall be considered withdrawn.

Scheduling of Public Hearing. When an application for development approval is subject to a public hearing (see § 8.1K.3, Timing of Notice, for when a public hearing is required), the City Planner shall ensure that the public hearing(s) on the application is scheduled for a regularly scheduled meeting or a meeting specially called for that purpose by the decision-making or advisory body reviewing the application. The public hearing(s) shall be scheduled so there is sufficient time for a Staff Report to be prepared and for the public notification requirements to be satisfied.

[Amended 6-20-2011 by Ord. No. 1884]

Public Notification. All applications for development approval requiring public hearings shall comply with the Michigan Statutes, the table in § 8.1K.4: Timing of Notice, and the other provisions of this section with regard to public notification.

Content. All notices for public hearings, whether done by publication or mail (written notice) shall:

Identify Application. Identify the application and the name, address, and telephone number of the applicant or the applicant's agent.

Date, Time, and Place of Public Hearing. Indicate the date, time and place of the public hearing(s).

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

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

Notify Public Where They May Be Heard. Include a statement stating that the public may appear at the public hearing, be heard and submit evidence and written comments with respect to the application.

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

Published Notice. When the provisions of this Ordinance require that notice be published, the City Planner shall be responsible for preparing the content of the notice and publishing the notice in a newspaper of general circulation that has been selected by the City. The content and form of the published notice shall be consistent with the requirements of § 8.1I.1: Content, and state law.

Written (Mailed) Notice.

[Amended 3-19-2007 by Ord. No. 1822; 6-20-2011 by Ord. No. 1884]

General. When the provisions of this Ordinance require that written or mailed notice be provided, the City Planner shall be responsible for preparing and mailing the written notice. Notice shall be mailed to:

All property owners and occupants of the land subject to the application.

All property owners, or persons to whom real property is assessed, and occupants of structures within 300 feet of the boundary of the land subject to the application. The notice to occupants is subject to the following exceptions:

(a)

Notification need not be given to more than one occupant of a structure;

(b)

If the structure contains more than one dwelling unit or spatial area owned or leased by different persons, one occupant of each unit or spatial area shall be given notice;

(c)

If a single structure contains more than four dwelling units or other distinct spatial areas owned or leased by different persons, notice may be given to the manager or owner of the structure with instructions to post the notice at the primary entrance to the structure.

All neighborhood organizations, public utility companies, railroads, and other persons who have requested to receive notice pursuant to § 8.1J, Registration to Receive Notice by Mail.

For appeals of administrative decisions or requests seeking an interpretation of the Zoning Ordinance not involving a specific parcel of property, notice under § 8.1I.2 is sufficient.

Failure to give proper notice shall not invalidate a proceeding unless mandated by state law.

Notice by Mail/Affidavit. Notice shall be deemed given when deposited during normal business hours for delivery with the United States postal service or other private or public delivery service as first class or similar mail, properly addressed and postage or delivery service paid. The City Planner shall prepare a list of property owners and registrants to whom notice was mailed.

Timing of Notice. Unless otherwise provided in the Michigan statutes and laws or this Ordinance, notice shall be provided as shown in Table 8.1-1 below.

Table 8.1-1. Timing of Notice [Amended 3-19-2007 by Ord. No. 1822; 6-20-2011 by Ord. No. 1884]
Application for Development Approval or Permit	Notice Required (days before hearing/action)
Application for Development Approval or Permit	Written (§ 8.1I3)	Published (§ 8.1I2)
Text Amendment		Planning Commission: Not less than 15 days prior to public hearing
Text Amendment		City Commission: not less than 15 days prior to public hearing
Amendment to Zone District Map (Rezone)	Planning Commission: not less than 15 days prior to public hearing	Planning Commission: Not less than 15 days prior to public hearing
Amendment to Zone District Map (Rezone)	City Commission: reasonable time prior to public hearing	City Commission: not less than 15 days prior to public hearing
Planned Unit Development District Classification	Not less than 15 days prior to public hearing
Special Use Permit
Variance
Appeals to Zoning Board of Appeals

Registration to Receive Notice by Mail.

General. Any neighborhood organization, public utility company, railroad or any other person may register with the City Clerk to receive written notice of all applications for development approval pursuant to § 8.1I.3: Written (Mailed) Notice, or written notice of all applications for development approval within the zone district in which they are located. The City Clerk shall provide copies of these requests to the City Planner who shall be responsible for providing this notification.

Requirements for Eligibility. To be eligible for registration, the requesting party must provide the City Clerk information in the form required by the City Clerk to ensure notification can be made. All persons that have been registered must reregister biannually to remain registered and continue to receive notification pursuant to this section.

Deferral of Review of Application.

Submission of Request. An applicant may request that a decision-making or advisory bodies' consideration of an application at public hearing be deferred by submitting a written request for deferral to the City Planner.

City Planner Review. The City Planner shall consider deferral requests of less than 30 days, and shall grant such requests for good cause. The date of the public hearing at which the application will be heard shall be set at the time the deferral is granted by the City Planner.

Decision-Making or Advisory Body Review. The decision-making or advisory body reviewing the application shall consider deferral requests of more than 30 days, or beyond the next regularly scheduled meeting of such body, and shall grant such requests for good cause. The date of the public hearing at which the application will be heard shall be set at the time the deferral is granted by the decision-making or advisory board.

Withdrawal of Application.

Submission of Application. Any request for withdrawal of an application shall be submitted in writing to the City Planner.

Prior to Notice of Public Hearing. The City Planner shall approve a request for withdrawal of an application if it has been submitted prior to the time of a public hearing or decision on the application.

Review of Applications by Advisory and Decision-Making Bodies.

Text Amendments, Amendments to Zone District Map (Rezones) and Rezones to Planned Development District Classifications.

Review and Recommendation by Planning Commission. After submission of an application for a text amendment, amendment to the Zone District Map or rezoning to Planned Unit Development Overlay (PUD-O) district classification, determination of its sufficiency, preparation of the Staff Report, and scheduling of the application for public hearing(s), the Planning Commission shall conduct a public hearing on the application pursuant to § 8.2: Public Hearing Procedures. At the public hearing, the Planning Commission shall consider the application, the relevant support materials, the Staff Report, and the public testimony and other evidence given at the hearing. Within a reasonable period of time after the close of the public hearing, the Planning Commission shall make a recommendation to the City Commission recommending either to approve, approve with conditions (if appropriate) or disapprove the application based on the relevant review standards. The final report with the recommendation shall be forwarded to the City Commission.

Review and Action by City Commission.

After receipt of the recommendation from the Planning Commission and the staff report, the scheduling of a public hearing and public notification, the City Commission shall conduct a public hearing on the application pursuant to § 8.2: Public Hearing Procedures. At the public hearing the City Commission shall consider the application, the relevant support materials, the staff report, the Planning Commission's recommendation, and the public testimony and other evidence given. Within a reasonable period of time after the close of the public hearing, the City Commission shall approve, approve with conditions (if appropriate) or disapprove the application based on the relevant review standards (See § 8.3B: Amendments to Text of Ordinance and Zone District Map, and § 8.3C: Planned Unit Development Overlay (PUD-O) District).

If a valid protest petition is filed against a proposed amendment to the Zone District Map (Rezoning) pursuant to MCLA § 125.584(5), as amended, the approval request shall not be approved except by a favorable vote of two-thirds of the City Commission membership.

Notice of Adoption. Notice of the adoption of an amendment to the text of this Ordinance or the Zone District Map (Rezoning) shall be published in a newspaper of general circulation within 15 days after the date of adoption pursuant to MCLA § 125.584(7), as amended.

Special Use Permit (Review and Action by Planning Commission). After submission of an application for a special use permit, determination of its sufficiency, preparation of the Staff Report, public notification and the scheduling of the application for a public hearing, the Planning Commission shall conduct a public hearing on the application pursuant to the requirements of § 8.2: Public Hearing Procedures. At the public hearing, the Planning Commission shall consider the application, the relevant support materials, the Staff Report, and the public testimony and other evidence given at the hearing. Within a reasonable period of time after the close of the public hearing, the Planning Commission shall either approve, approve with conditions or disapprove the application based on the relevant review standards (See § 8.3D: Special Use Permit).

Variance (Review and Action by Zoning Board of Appeals). After submission of an application for a variance, determination of its sufficiency, and scheduling of the application for a public hearing, the Zoning Board of Appeals shall conduct a public hearing on the application pursuant to the requirements of § 8.2: Public Hearing Procedures. At the public hearing, the Zoning Board of Appeals shall consider the application, the relevant support materials, and the public testimony and other evidence given at the hearing. Within a reasonable period of time after the close of the public hearing, the Zoning Board of Appeals shall either approve, approve with conditions or disapprove the application based on the relevant review standards (See § 8.3E: Variances).

Notification of Decision. Notification of a decision on an application for development approval shall be provided by the City Planner to the applicant by mail within 14 days after the decision. A copy of the decision shall also be made available to the public at the offices of the City Planner, during normal business hours.

Rehearing of Applications.

General. Whenever any application for development approval is disapproved, a similar application for all or a part of the same land shall not be considered for a period of one year after the date of disapproval unless a Waiver of Time Limit is approved by the decision-making body pursuant to the requirements of § 8.1O.2: Waiver of Time Limit. Only one request for waiver of time limit may be submitted by the applicant during the one-year period.

Waiver of Time Limit. The waiver of time limit shall be approved only upon a finding by two-thirds of the membership of the decision-making body that:

Substantial Change in Circumstances. There is a substantial change in circumstances relevant to the issues or facts considered during review of the application that might reasonably affect the decision-making body's application of the relevant review standards to the development proposed in the application; or

New or Additional Information. New or additional information is available that was not available at the time of the review that might reasonably affect the decision-making body's application of the relevant review standards to the development proposed; or

New Application Materially Different. A new application is proposed to be submitted that is materially different from the prior application; or

Material Mistake of Fact. The final decision on the application was based on a material mistake or omission of fact that, if known, would likely have resulted in a different determination.

Examination and Copying of Application/Other Documents. At any time upon reasonable request and during normal business hours, any person may examine an application, the Staff Report and materials submitted in support of or in opposition to an application in the office of the City Planner, subject to recognized exceptions under the Freedom of Information Act[1] or other state or federal law.

[1]

Editor's Note: See MCLA § 15.231 et seq.

General. The table below summarizes the development review procedures for all types of applications for development approvals and other permits outlined in this section.

Table 8.3-1 Development Review Procedures [Amended 3-19-2007 by Ord. No. 1822]
Procedure		Review and Decision-Making Authority					Notices (Written, Newspaper)
Procedure		Staff	PC	ZBA	HO	CC	Notices (Written, Newspaper)
Text Amendments (§ 8.3A)		R	<R>	—		<DM>	N
Zone District Map Amendments (§ 8.3B)		R	<R>	—		<DM>	W, N
Planned Unit Development District (§ 8.3C)		R	<R>	—		<DM>	W, N
Special Use Permit (§ 8.3D)		R	<DM>	—			W, N
Variance (§ 8.3E)		R	—	<DM>			W
Appeals of Administrative Decisions (§ 8.3F)		—	—	<DM>		—	W
Administrative Adjustments (§ 8.3G)		DM		<A>			—
Site Plan Review
	CBTR District (§ 8.3H)	R	DM
	All other districts (§ 8.3H)	DM (if delegated)	DM (if not delegated)
Sign Permit (§ 8.3I)		DM	—	<A>			—
Temporary Use Permit (§ 8.3J)		DM	—	<A>			—
Certificate of Zoning Compliance (§ 8.3K)		DM
Interpretations (§ 8.3L)		DM		<A>
Beneficial Use Determinations (§ 8.3M)					R	<DM>

NOTES:
PC	=	Planning Commission
ZBA	=	Zoning Board of Appeals
HO	=	Hearing Officer
CC	=	City Commission
R	=	Review Body (Responsible for Review and Recommendation)
DM	=	Decision-Making Body (Responsible for Final Decision to Approve or Deny)
A	=	(Appellate) Authority to hear and decide appeals of Decision-Making Body's or Staff's action
<>	=	Public Hearing Required
N	=	Published Notice pursuant to § 8.1I2, Published Notice
W	=	Written notice pursuant to § 8.1I3, Written (Mailed) Notice.

Amendments to Text of Ordinance or Zone District Map (Rezoning)

Purpose. The purpose of this section is to provide a means for amending the text of this Ordinance or making an amendment to the Zone District Map (Rezone).

Authority. The City Commission may adopt an ordinance amending the text of this Ordinance or amending the Zone District Map (Rezone) upon compliance with the provisions of this section.

Initiation.

Amendment to the Text of This Ordinance. A petition to amend the text of this Ordinance may be initiated by the City Commission, the Planning Commission, City staff, an owner of property in the City, or a citizen of the City.

Amendment to Zone District Map. A petition to amend the Zone District Map (Rezoning) may be initiated by the City Commission, the Planning Commission, City staff, or pursuant to § 8.1A: Authority to File Applications.

Zone District Map Amendments

(Includes PUD)

Procedures. The procedures and requirements for a rezoning shall comply with the requirements of § 8.1, General Provisions.

Standards. The advisability of amending the text of this Ordinance or making an amendment to the Zone District Map (Rezoning) is a matter committed to the legislative discretion of the City Commission and is not controlled by any one factor. In considering a Zone District Map (Rezoning) amendment, the City Commission may adopt a change for only part of the area requested or for a less intense zone district than requested by the applicant. In determining whether to adopt or disapprove the proposed amendment, the City Commission shall consider the following factors:

Consistent With Comprehensive Plan. Whether and the extent to which the proposed amendment is consistent with the Comprehensive Plan.

Changed Conditions. Whether and the extent to which there are changed conditions that require an amendment.

Community Need. Whether and the extent to which the proposed amendment addresses a demonstrated community need.

Compatible With Surrounding Uses. Whether and the extent to which the proposed amendment is compatible with existing and proposed uses surrounding the subject land, and is the appropriate zone district for the land, or the proposed amendment to the text of this Ordinance will maintain or improve compatibility among uses and will ensure efficient development within the City.

Development Patterns. Whether and the extent to which the proposed amendment would result in a logical and orderly development pattern.

Planned Unit Development Overlay (PUD-O).

General. Proposed Planned Unit Development Overlay (PUD-O) zone district shall comply with all applicable requirement of § 3.4: Planned Unit Development Overlay (PUD-O) Zone District, and with this standards and criteria set forth in this § 8.3C.

General Applicability. Before any development shall be designated as a Planned Unit Development Overlay (PUD-O) zone district on the Zone District Map, it shall receive approval pursuant to the terms of this section.

Procedure.

Overview. A Planned Unit Development Overlay (PUD-O) District shall constitute an amendment to the Zone District Map. It shall be controlled by a PUD Plan and PUD Agreement that is approved as part of the Planned Unit Development Overlay (PUD-O) zone district classification. The procedure requires review and recommendation of approval, approval with conditions or disapproval by the Planning Commission and review and approval, approval with conditions or disapproval by the City Commission. Subsequent to development of a Planned Unit Development Overlay (PUD-O) district, a site plan shall be approved pursuant to § 8.3.H: Site Plan.

General. The procedures and requirements for a Planned Unit Development Overlay (PUD-O) district classification shall comply with the requirements of § 8.1: General Provisions.

Standards In approving a Planned Unit Development Overlay (PUD-O) zone district classification, the City Commission shall find the zone district designation and PUD Plan complies with the following standards:

Development Parameters.

The proposed uses for the development may be varied from the permitted uses and special uses for the underlying base zone district identified in § 4.1: Use Table.

The dimensional standards may vary from the requirements in § 5.1: Density/Intensity/Dimensional Standards Table.

The development is comprehensively planned and integrated, compact, and, where possible, linked by pedestrian ways to surrounding properties.

The development is compatible with the character of surrounding land uses and maintains and enhances the value of surrounding properties.

Signs. Signage complies with Chapter 7: Signs, except that signage standards may vary from Chapter 7: Signs, if a comprehensive sign plan for the proposed development is submitted that is determined to be suitable for the PUD Plan, and it is consistent with the intent and purpose of the sign regulations.

Public Facilities.

The PUD Plan demonstrates a safe and adequate on-site transportation circulation system that is integrated with the off-site transportation circulation system of the City.

The PUD Plan demonstrates a safe and adequate on-site system of potable water and wastewater lines that can accommodate the proposed development, that are efficiently integrated into off-site potable water and wastewater public improvement plans.

Adequate off-site facilities for potable water supply, sewage disposal, solid waste disposal, electrical supply, fire protection and roads is planned and programmed for the development proposed in the PUD Plan, and the development is conveniently located in relation to schools and police protection services.

The improvements standards applicable to the public facilities that will serve the site comply with the relevant City regulations. Provided, however, the development may deviate from the City's road standards so the development achieves greater efficiency of infrastructure design and installation through clustered or compact forms of development, when the following minimum design principles are followed:

(a)

The circulation system is designed to provide safe, convenient access to all areas of the proposed development using the minimum practical roadway length. Access is provided by a public right-of-way, private vehicular or pedestrian way or a commonly owned easement Internal pathways are provided to form a logical, safe and convenient system for pedestrian access to dwelling units and common areas, with appropriate linkages off-site.

(b)

Roadways are designed to permit access by emergency vehicles to all lots and/or units. An access easement is granted for emergency vehicles and utility vehicles, as applicable, to use roadways in the development for the purpose of providing emergency services and for installation, maintenance and repair of utilities.

(c)

Principal vehicular access points are designed to provide for smooth traffic flow, minimizing hazards to vehicular, pedestrian, or bicycle traffic. Where a PUD-O district abuts a major collector, arterial road, or highway, direct access to the road or highway from individual lots, units, or buildings is not permitted, unless specifically approved as part of the PUD-O district.

Open Space. The development proposed in the PUD Plan complies with the following open space standards:

A minimum of 35% of the gross land in the PUD Plan is reserved for common recreation and usable open space. Parking areas, street right-of-way and minimum yard setbacks shall not be counted when determining usable open space. Water bodies and floodplains that are preserved as open space shall count towards this minimum standard, even when they are not usable by or accessible to the residents of the development.

All privately owned common open space shall continue to conform to its intended use, as specified in the PUD Plan. To ensure that all the common open space identified in the PUD Plan will be used as common open space, restrictions and/or covenants shall be placed in each deed to ensure their maintenance and to prohibit the partition of any common open space.

Natural Resource and Environmental Protection. The PUD Plan complies with the current regulatory standards of this Ordinance and other relevant City, state and federal regulations related to natural resource and environmental protection.

Phasing. The PUD Plan includes a phasing plan for the development, if appropriate, with specific build-out dates and the necessary components to insure protection of natural resources and the health, safety, and welfare of the users of the planned unit development and the residents of the surrounding area. If development of the planned unit development is proposed to occur in phases, then guarantees shall be provided that project improvements and amenities that are necessary and desirable for residents of the project, or that are of benefit to the City, are constructed with the first phase of the project, or, if this is not possible, then as early in the project as is technically feasible.

Consistent With Comprehensive Plan. The PUD Plan is consistent with the City's Comprehensive Plan.

Complies With This Ordinance. The PUD Plan complies with all other relevant requirements of this Ordinance.

Conditions. The Planning Commission shall have the authority to recommend and the City Commission shall have the authority to impose such conditions on a Planned Development (PUD) Overlay zone district classification and PUD Plan that are necessary to accomplish the purposes of this Ordinance.

Planned Unit Development (PUD) Agreement. Concurrent with the approval of the adopting ordinance for the PUD Overlay zone district classification and the PUD Plan, a PUD Agreement shall be established binding the Planned Development to any conditions placed in the adopting ordinance and PUD Plan. To the degree necessary and appropriate, the PUD Agreement shall include, but is not limited to conditions related to: design requirements; a phasing plan; open space; a comprehensive sign plan; landscaping; parking; and public facility improvements and phasing.

Placement of Planned Unit Development (PUD) Overlay District Designation on Official Zone District Map. After final approval of the adopting ordinance for the Planned Unit Development Overlay (PUD-O) zone district classification, the PUD Plan and PUD Agreement, the City Planner shall amend the Zone District Map to show a Planned Unit Development Overlay (PUD-O) zone district classification.

Recordation. The applicant shall record the adopting ordinance for the Planned Unit Development Overlay (PUD-O) zone district classification, the PUD Plan and the PUD Agreement with the County Registrar of Deeds. They shall be binding upon the landowners, their successors and assigns, and shall constitute the development regulations for the land. Development of the land shall be limited to the uses, density, configuration, design guidelines and all other elements and conditions set forth on the PUD Plan and PUD Agreement. The applicant shall submit proof to the City Planner that the adopting ordinance, PUD Plan, and PUD Agreement have been recorded with the County Registrar of Deeds within 180 calendar days of its approval or the adopting ordinance, PUD Plan, and PUD Agreement shall be rendered invalid and the property shall return to its prior zone district classification.

Effect. Approval of an adopting ordinance for a Planned Unit Development Overlay (PUD-O) zone district classification, the PUD Plan and PUD Agreement shall constitute a Zone District Map classification and recognition by the City that the landowner may proceed, consistent with the PUD Plan and PUD Agreement to develop the land, with appropriate site plan review and permit approvals.

10.

Expiration.

General. The approval of a PUD Plan, and PUD Agreement if applicable shall be null and void unless construction of required improvements is commenced and diligently pursued to completion, and a site plan is submitted for at least the initial phase of the PUD Plan within three years after the date of approval of the Planned Unit Development Overlay (PUD-O) Overlay zone district classification. Such time period will not be extended with transfer of ownership.

One Extension. Upon written request, one extension of time may be granted by the City Commission for a period not to exceed one year for good cause shown. No request for an extension shall be considered unless a written request is submitted to the City Planner no later than 30 days prior to the date the PUD Plan is to expire. The approval shall be deemed extended until the City Commission has acted upon the request for extension. Failure to submit an application for an extension within the time limits established by this section shall render invalid the PUD Plan, and PUD Agreement if applicable.

Effect of Invalidation. If an adopted PUD Plan, and PUD Agreement if applicable, becomes invalid through the operation of Subsection (a) or (b) above, no further development within the approved PUD-O zone district may take place until a new PUD Plan, and PUD Agreement if applicable, has been approved in the same manner required for the approval of the original PUD Plan. At any time after the invalidation of a PUD Plan, and PUD Agreement if applicable, the City Commission may, upon its own initiative, rezone the property in the approved PUD-O districts back to the zone district that existed prior to the approval of the PUD-O district, or to any other zone district consistent with the Comprehensive Plan.

11.

Minor Deviations. A minor deviation to a PUD Plan and/or a PUD Agreement may be approved by the City Planner. In making a decision on a minor deviation the City Planner shall identify the facts and standards of this section that permit the approval or disapproval of the minor deviation. A minor deviation shall be limited to technical or engineering considerations first discovered during actual development that could not reasonably be anticipated during the approval process or any other change that has no material effect on the character of the approved planned unit development or any of its approved terms or conditions, as long as it complies with the standards of this Ordinance. Minor deviations shall be limited to the following:

Height. An increase of building height by not more than 10%, as long as the height increase is consistent with the contextual height of the surrounding buildings and structures and the PUD Plan.

Alteration of the Building Envelope. Alteration of the building envelope of up to 10%, provided such alteration does not materially change the design of the development approved in the PUD Plan, and does not change the number of stories, density or intensity.

Reduction of Open Space. Reduction of the total amount of open space by not more than 1%, as long as 20% of the project is maintained in open space.

Parking Spaces. A decrease of parking spaces by not more than 5%, if it is demonstrated that the minor deviation complies with requirements of § 6.1: Off-Street Parking and Loading.

Relocation of Buildings. Relocation of buildings or uses, as long as they maintain the same general building relationships, topography, landscaping, and utility design and are consistent with the PUD Plan, as long as any required setbacks are maintained.

12.

Amendments. An amendment to a PUD Plan and/or PUD Agreement may be made only pursuant to the procedures and standards for its original approval.

Special Use Permit.

Purpose. Special uses are those uses that may have a greater propensity to adversely affect surrounding uses in a zone district and, therefore, require special and individual review of their location, design, configuration, intensity, and density of use or structures to ensure land use compatibility, public facility adequacy, natural resource protection and the public health, safety and welfare of the residents of the City. Conditions of approval may be imposed on a special use that is pertinent to the particular use at a particular location.

Authorization.

General. The Planning Commission, in accordance with the procedures and standards of this section, shall review, consider and approve, approve with conditions or disapprove special use permits.

Uses Authorized. Only those uses authorized as special uses in § 4.1: Use Table, may be approved as special uses. The designation of a use as a special use in § 4.1: Use Table, does not constitute an authorization that such use shall be approved as a special use pursuant to this section. Rather, each proposed special use shall be evaluated by the Planning Commission for compliance with the standards set forth in this section and the applicable supplementary standards for the use in § 4.2: Use Standards.

Procedure. The procedures and requirements for a special use permit shall comply with the requirements of § 8.1: General Provisions.

Special Use Permit

Standards. The Planning Commission shall approve a special use permit if it finds there is evidence in the record that demonstrates all of the following are met:

Compatibility. The proposed special use is appropriate for its proposed location and compatible with the character of surrounding land uses and the uses permitted in the zone district(s) of surrounding lands.

Zone District Use Standards. The proposed special use complies with § 4.2: Use Standards.

Location and Design Minimizes Adverse Impact. The location and design of the proposed special use minimizes adverse effects, including visual impact of the proposed use on adjacent lands by:

Avoiding significant adverse impact on surrounding lands regarding service delivery, parking and loading, odors, noise, glare, and vibration, and does not create a nuisance.

Retaining, to the greatest extent possible, the natural features of the landscape where they provide a barrier or buffer between the proposed special use and adjoining lands.

Locating buildings, structures, and entryways to minimize impact.

Providing appropriate screening, fencing, landscaping, and setbacks.

Design Minimizes Environmental Impact. The proposed special use minimizes environmental impacts, and conforms to all relevant environmental protection standards of this Ordinance, or any other state or federal laws.

Off-Site Roads. There is adequate road capacity available to serve the proposed special use.

Road Ingress and Egress. The proposed special use is designed to ensure safe ingress and egress onto the site and safe road conditions around the site.

Impact on Other Public Facilities. There are adequate potable water, wastewater, solid waste, park, police, and fire/EMS facilities to serve the proposed special use.

Access for Fire, Police, and EMS. The proposed special use is located and designed so that adequate access onto the site is provided for fire, police, and EMS services.

Site Development Standards. The proposed special use complies with the appropriate standards in Chapter 6: General Development Standards.

Other Relevant Standards of This Ordinance. The proposed special use complies with all standards imposed on it by all other applicable provisions of this Ordinance for use, layout, and general development characteristics.

Conditions of Approval. The Planning Commission may impose, in approving the special use, such conditions on approval of the proposed use, and the premises to be developed or used pursuant to such approval, as it determines are required by the standards of this section and all other relevant standards of this Ordinance to prevent or minimize adverse effects from the proposed use and development on surrounding lands. All conditions imposed on any special use shall be expressly set forth in the special use permit approval.

Recording. The Planning Commission may require the applicant to record the special use permit with the County Register of Deeds. The special use permit shall be binding upon the landowners, their successors and assigns.

Effect of Special Use Permit. Issuance of a special use permit shall authorize only the particular use, subject to the conditions approved in the special use permit. A special use permit, including any conditions, shall run with the land and shall not be affected by a change in ownership.

Expiration. Unless otherwise specified in the special use permit, an application for a construction permit shall be applied for and approved within two years of the date of the approval of the special use permit or the special use permit shall be considered invalid. Permitted time frames do not change with successive owners.

Extension. Upon written request, one extension of one year may be granted by the Planning Commission for good cause shown.

10.

Amendments. A special use permit may be amended, extended, or modified only in accordance with the procedures and standards established for its original approval.

Variances.

Purpose.

General. There are two types of variances allowed under the terms of this Ordinance: dimensional variances and use variances.

Dimensional Variances. Dimensional variances are deviations from the height, setback, yard, lot coverage, parking, landscaping and signage standards of this Ordinance, when owing to special circumstances or conditions (such as exceptional topographical conditions, narrowness, shallowness, or the shape of a specific parcel of land), the literal enforcement of the provisions of this Ordinance would result in peculiar and practical difficulties to the owners of the land, and the deviation would not be contrary to the public interest.

Use Variances. Use variances are variations from the schedule of permitted uses in a zone district established pursuant to § 4.1: Use Table, when owing to unnecessary hardship uniquely associated with the property, this Ordinance unreasonably restricts the property owner's use of permitted uses.

No Increase in Residential Density. A request to modify lot requirements to increase the permitted density of new residential development shall not be considered a variance and is prohibited (e.g., a lot modification that increases the number of permitted dwelling units on a lot shall not be allowed).

Authority. The Zoning Board of Appeals, in accordance with the procedures, standards and limitations of this section, is authorized to review and approve, approve with conditions or disapprove an application for a variance (dimensional variances or use variances).

Procedure. The procedures and requirements for variances shall comply with the requirements of § 8.1: General Provisions.

Variance

Standards.

Dimensional Variance. The Zoning Board of Appeals shall approve a dimensional variance on a finding there is competent, material, and substantial evidence in the record that all of the following standards are met:

There are special circumstances or conditions (like exceptional topographic conditions, narrowness, shallowness, or the shape of property) that are peculiar to the land or structure for which the variance is sought, that is not applicable to other land or structures in the same zone district.

The special circumstances are not the result of the actions of the applicant or titleholder of the land.

The literal interpretation and enforcement of the terms and provisions of this Ordinance would deprive the applicant of rights commonly enjoyed by other land in the same zone district, and would cause practical difficulty.

The granting of the variance is the minimum action that will make possible the use of the land or structure that is not contrary to the public interest, and that would carry out the spirit of this Ordinance.

The granting of the variance will not adversely affect adjacent land in a material way.

The granting of the variance will be generally consistent with the purposes and intent of this Ordinance.

Where the requested dimensional variance involves required landscaping, the Zoning Board of Appeals may grant a variance upon the following additional criteria:

(a)

Existing landscaping, screening or wetlands intended to be preserved meets the intent of this section.

(b)

The landscape design proposed by the applicant meets the intent of this section.

(c)

There is a steep change in topography that would limit the benefits of required landscaping.

(d)

The proposed building and parking lot placement is setback well beyond the minimum required.

(e)

The abutting or adjacent land is developed or will be developed in the near future with a use other than residential.

(f)

Similar conditions to the above exist such that no good purpose would be served by providing the landscaping or screening required.

Use Variance. The Zoning Board of Appeals shall approve a use variance on a finding there is competent, material, and substantial evidence in the record that all of the following standards are met:

The literal interpretation and enforcement of the terms and provisions of this Ordinance would deprive the applicant for all practical purposes from using the property for a permitted use identified in § 4.1: Use Table, which is a right commonly enjoyed by other land in the same zone district.

There is unnecessary hardship based on special circumstances or conditions that are peculiar to the land or structure for which the use variance is sought that is not applicable to other land or structures in the same zone district.

The special circumstances are not the result of the actions of the applicant.

The granting of the variance will not adversely affect adjacent land in a material way.

The granting of the variance will be generally consistent with the purposes and intent of this Ordinance.

Conditions of Approval. The Zoning Board of Appeals, in approving the variance, may impose conditions on such approval, the proposed use, and the premises to be developed or used pursuant to such approval as it determines are required to ensure compliance with the standards in this section. The conditions shall be identified in the variance approval.

Recording. The Zoning Board of Appeals may require the applicant to record the variance with the County Register of Deeds. The variance shall be binding upon the landowners, their successors and assigns.

Effect of Variance. Issuance of a variance shall authorize only the particular variation that is approved in the variance. A variance, including any conditions, shall run with the land and not be affected by a change in ownership.

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

Expiration. Unless otherwise specified in the variance, an application for a construction permit shall be applied for and approved within one year of the date of the approval of the variance, otherwise the variance shall become invalid. Permitted time frames do not change with successive owners.

10.

Extension. Upon written request, one extension of six months may be granted by the Zoning Board of Appeals for good cause shown.

11.

Amendment. A variance may be amended, extended or modified only in accordance with the procedures and standards established for its original approval. A request for a change in a condition of approval of a variance shall be considered an amendment.

Appeals of Administrative Decisions.

Authorization. Any person aggrieved or effected by any order, decision, determination, or interpretation made by the City Planner or other administrative official of the City charged with administration or enforcement of this Ordinance, may appeal such decision to the Zoning Board of Appeals pursuant to the procedures and standards of this section.

Procedure.

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

Contents of Appeal. The written appeal of the administrative decision/determination from the allegedly aggrieved person shall include a statement of the error or improper order, decision, determination or interpretation, the date of that decision, and all support materials related to the decision. A nonrefundable filing fee as set by resolution of the City Commission shall also be submitted.

Forwarding Record to the Appellate Body. Upon receiving the written appeal of the administrative decision/determination, the City Planner or other administrative official whose decision/determination is being appealed, shall transmit the written appeal of the administrative decision/determination and all papers, documents and other materials relating to the order, decision, determination or interpretation that is appealed to the Zoning Board of Appeals. This material shall constitute the record of the appeal.

Scheduling of Notice and Hearing. The City Planner shall schedule a hearing on the matter at the next regularly scheduled Zoning Board of Appeals meeting by which time notice can be provided consistent with the requirements of § 8.1I.3: Written (Mailed) Notice.

Action by Zoning Board of Appeals. At the hearing on the appeal, the appellant or the appellant's agent shall state the grounds for the appeal and identify any materials or evidence from the record to support the appeal. The City Planner or other administrative official whose action is the subject of the appeal shall be given an opportunity to respond, as well as any other person(s) the Zoning Board of Appeals deems necessary. After the conclusion of the hearing, the Zoning Board of Appeals shall affirm, partly affirm, modify, or reverse the order, decision, determination, or interpretation, based on the standards in § 8.3F.3: Standards. The concurring vote of a majority of the members of the Zoning Board of Appeals shall be necessary to reverse any order, decision, determination, or interpretation on appeal.

Appeals of Administrative Decisions

Standards. 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 Ordinance, state law or the federal or state constitutions.

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

Stay. A properly submitted appeal shall stay all administrative proceedings by the City in furtherance of the action appealed, unless the City Planner or other administrative official from whom the appeal is taken certifies to the Zoning Board of Appeals 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 Zoning Board of Appeals for good cause shown.

Administrative Adjustments.

General. This section sets out the procedures and standards for administrative adjustments, which are modifications of 10% or less of any numeric dimensional standard set out in § 5.1: Density/Intensity/Dimensional Standards Table, except those related to residential density or nonresidential intensity.

Procedure.

General. The procedures and requirements for initiation of an application, the application contents, fees, application submission, and review of the application by City staff shall comply with those relevant provisions in § 8.1: General Provisions.

Action by City Planner. Within 30 days after the application is determined sufficient, the City Planner shall review the application and approve, approve with conditions or disapprove the administrative adjustment based on the standards in § 8.3G.3: Standards.

Administrative Adjustments

Standards. The City Planner may approve an administrative adjustment upon a finding that all of the following standards are met:

General. The requested adjustment eliminates an unnecessary inconvenience to the applicant, is not inconsistent with the character of development in the surrounding area and will not result in incompatible land uses;

Mitigates Adverse Impacts. Any adverse impacts resulting from the administrative adjustment will be mitigated to the maximum extent feasible; and

Technical Nature/Compensates for Unusual Aspect of Site. The administrative adjustment is of a technical nature and is required to compensate for some unusual aspect of the site or the proposed development that is not shared by landowners in general. For example: If a lot slopes so sharply at the property boundary that the primary structure would not be visible even without the minimum setback, and the shape of the lot makes it difficult to meet the setback, an administrative adjustment to a smaller setback may be appropriate.

Conditions of Approval. The City Planner may, in approving the administrative adjustment, impose such restrictions and conditions on such approval and the premises to be developed or used pursuant to such approval as are determined are required to ensure compliance with the general goals, objectives, and policies of this Ordinance to prevent or minimize adverse effects from the proposed administrative adjustment.

Recording. The City Planner may require the applicant to record the administrative adjustment with the County Register of Deeds. The administrative adjustment shall be binding upon the landowners, their successors and assigns.

Subsequent Development. Development authorized by the administrative adjustment shall not be carried out until the applicant has secured all other permits required by this Ordinance or any other applicable provisions of the City. An administrative adjustment shall not ensure that the development approved as an administrative adjustment shall receive subsequent approval for other applications for development, unless the relevant and applicable portions of this Ordinance or any other applicable provisions are met.

Effect of Administrative Adjustment. Issuance of an administrative adjustment shall authorize only the particular modification that is approved in the administrative adjustment. An administrative adjustment, including any conditions, shall run with the land and not be affected by a change in ownership.

Expiration. Unless otherwise specified in the administrative adjustment, an application for a construction permit shall be applied for and approved within one year of the date of the approval of the administrative adjustment, otherwise the administrative adjustment shall become invalid. Permitted time frames do not change with successive owners.

Extension. Upon written request, only one extension of time may be granted by the City Planner for a period not to exceed six months for good cause shown.

10.

Amendment. An administrative adjustment may be amended, extended or modified only in accordance with the procedures and standards established for its original approval.

Site Plan.

Purpose and Intent. The purpose and intent of this section is to establish procedures and standards for review and approval of development to ensure full compliance with the site and development standards of this Ordinance and other related City ordinances and state and federal regulations. Specifically, these site plan review procedures and standards are intended to:

Consultation and Cooperation. Foster consultation and cooperation between property owners proposing to develop land and the City.

Balance Property Rights and Community Goals. Balance rights of the property owner with the development goals of the City and the rights of adjacent landowners.

Minimize Adverse Impacts on Investments of Surrounding Landowners. Minimize adverse impacts of development on the investments of surrounding landowners.

Minimize Impacts on Environment, Drainage, Soil Erosion, and Stormwater Control. Ensure site design minimizes negative impacts on the environment, drainage, soil erosion, and stormwater control.

Development Consistent With Surrounding Character and Goals of Comprehensive Plan. Ensure the arrangement, location and design of development is consistent with the character of the area and the goals of the Comprehensive Plan.

Minimize Impact on Roads. Ensure site design minimizes negative impacts on roadway capacity, the safety of motorists and pedestrians, utilities, and community facilities and services.

Safe and Efficient Circulation. Ensure safe and efficient circulation for motorized and nonmotorized traffic and pedestrians within and adjacent to sites.

Gradual Upgrade of Nonconforming Sites. Provide for the gradual upgrade of existing sites that do not conform with current standards.

Thorough Evaluation of Development. Ensure a thorough evaluation of development in relation to the goals of the Comprehensive Plan, with emphasis on preserving aesthetics, the environment, historic resources, property values, quality of life, and other public health, safety and welfare objectives.

Applicability. Unless exempted pursuant to § 8.3H.3: Exemptions, prior to the development of any new use or structure, any change of an existing use of land, the expansion or conversion of any use or structure, or any other development activity, a site plan shall be approved pursuant to the procedures and standards of this section. Construction plans will not be reviewed or a construction permit issued until a site plan is approved pursuant to the procedures and standards of this section.

Exemptions. The following shall be exempted from the requirements of this section:

One- or Two-Family Dwelling. The development or expansion of a one-family or two-family dwelling unit.

Dwelling Unit in Mobile Home Park. Placement of a dwelling unit in an approved mobile home park.

Internal Construction Not Increasing Intensity or Parking Requirement. The internal construction or change in the floor area of a structure that does not increase gross floor area, increase the intensity of use or affect parking requirements on a site that meets all development and site design standards of this Ordinance.

Site Clearing Within Area Less Than 1/2 Acre. Grading, excavation, filling, soil removal, creation of ponds or clearing of trees within an area of less than 1/2 acre in size.

Temporary Uses. Temporary uses.

Minor Development or Expansion. Expansion or new structures up to and including 250 square feet in area.

Overview. Development for which a site plan is required pursuant to this section shall be subject to one of two processes: sketch plan review or full site plan review.

Sketch Plan Review. Sketch plan review is required of smaller sized development and development with potentially less impacts. Except for development in the CBTR District, it requires review and approval, approval with conditions or disapproval by the Site Plan Review Committee (SPRC). Sketch plan review in the CBTR District requires review and approval by the SPRC and review and final action by the Planning Commission.

Full Site Plan Review. Full site plan review is required of larger sized development, and development with potentially greater impacts. Except for development in the CBTR District, it requires review and approval, approval with conditions or disapproval of a preliminary site plan and then a final site plan by the SPRC. Preliminary site plan and then final site plan review in the CBTR District requires review and approval by the SPRC and then review and final action by the Planning Commission. The applicant may consolidate review of the preliminary site plan and final site plan. The preliminary site plan presents the proposed development concept with sufficient information to enable the review board to determine whether the concept complies with the review standards of this section. The final site plan requires submission of detailed information about the proposed development with exact dimensions, representing a firm commitment about development of the site.

Threshold for Sketch Plan Review and Full Site Plan Review. The thresholds for which type of development is subject to sketch plan review or full site plan review are set forth in Table 8.3-2.

Table 8.3-2: Threshold for Sketch Plan and Full Site Plan [Amended 3-19-2007 by Ord. No. 1822]
Development Use/Expansion	Required Review
Development Use/Expansion	Sketch Plan	Full Site Plan
New Development — Residential
Residential development, unless exempted		☑
Residential care facilities (state licensed) that are permitted uses	☑
Residential care facilities (state licensed) that require special use permit		☑
New Development — Nonresidential
Construction of new building or structure		☑
Nonresidential development requiring special use permit		☑
Erection of wireless communication antenna on existing facility	☑
Erection of wireless communication structure or towers		☑
Construction of essential public service buildings and storage areas		☑
Public and private golf courses, outdoor recreational uses, and parks, including principal structures, and parking areas		☑
Expansion
An increase in the building floor area up to 1,500 square feet or 10% of the existing floor area, whichever is less, based on the cumulative total of the proposed expansion and any expansion within the last five years	☑
An increase in the building floor area greater than that specified above		☑
An increase in parking or loading area over 10% or 6,000 square feet of pavement area, whichever is less	☑
Change in Use
Any change in the use of land or a building to a more intensive use, that may involve significant changes to features such as building appearance, parking needs, traffic flow, traffic volumes, buffering needs, hours of operation, noise, effluent discharge, drainage, lighting, and similar impacts	☑
A change in use to a similar or less intensive use for a site that does not comply with current development standards (such as landscaping, signs, lighting or drainage)	☑
A change from a nonconforming use, building, or site, to a more conforming situation	☑
Other Type of Development
Accessory open-air business	☑
Architectural changes to a multiple-family residential structure (three or more units) or a nonresidential structure (only an elevation plan describing changes and construction materials is required if no changes to the use of the site are proposed)	☑
Grading, excavation, filling, soil removal, creation of ponds or clearing of trees of one-half acre or more	☑
Home occupations	☑

Procedure. The Planning Commission is responsible for approval of all site plans. However, for all zone districts other than the CBTR zone district, the Planning Commission may annually delegated authority to approve site plans to the Site Plan Review Committee. Such a delegation is currently in effect, and is reflected in the procedures below. In the event the Planning Commission does not delegate site plan approval authority to the SPRC for one or more district(s) in the future, site plan review procedures for such district(s) shall be governed by the provisions below applicable to the CBTR district.

Sketch Plan Review, Except in CBTR District. Sketch plan review shall follow the following procedure, except in the CBTR District.

Initiation, Submission and Review of Application. The procedures and requirements for initiation of an application for sketch plan review, the application contents, fees, application submission and sufficiency determination shall comply with the relevant requirements of § 8.1: General Provisions.

Initial SPRC review. Within a reasonable period of time after the application is determined sufficient, the Site Plan Review Committee (SPRC) shall review the application and prepare a written Staff Report on whether the application complies with the standards in § 8.3H.7: Standards. A copy of the Staff Report shall be provided to the applicant.

Plan Complies/Approve. If the SPRC finds the sketch plan complies with the standards in § 8.3H.7: Standards, the sketch plan shall be approved.

Plan Not Comply/Applicant Opportunity to Modify. If the Staff Report identifies changes that need to be made to the sketch plan to ensure it complies with § 8.3H.7: Standards, the applicant shall submit a modified sketch plan addressing the required changes.

Action After Resubmittal. The SPRC shall review the sketch plan within a reasonable period of time after its resubmittal, and approve, approve with conditions or disapprove the application, based on the standards in § 8.3H.7: Standards. If the sketch plan is not resubmitted within 60 days of the date the SPRC provides the applicant the Staff Report, the application shall be considered withdrawn.

Sketch Plan Review in CBTR District. The procedure for the review of a sketch plan in the CBTR District shall be the same as the procedure for a sketch plan established above (§ 8.3H.6.a), except that after the sketch plan is approved or approved with conditions by the SPRC, it shall be placed on the agenda of the next regularly scheduled Planning Commission meeting by the City Planner, along with a written report from the SPRC. At the meeting the Planning Commission shall review the sketch plan, the written report from the SPRC and all other relevant information and testimony, and approve, approve with conditions or disapprove the sketch plan based on the standards in § 8.3H.7: Standards.

Full Site Plan Review, Except in CBTR District.

Preliminary Site Plan (optional).

(a)

The procedures and requirements for initiation of an application for preliminary site plan review, the application contents, fees, application submission and sufficiency determination shall comply with the relevant requirements of § 8.1: General Provisions.

(b)

Within a reasonable period of time after the application is determined sufficient, the SPRC shall review the application and prepare a written Staff Report on whether the application complies with the standards in § 8.3H.7: Standards. A copy of the Staff Report shall be provided to the applicant.

(c)

If the SPRC finds the preliminary site plan complies with the standards in § 8.3H.7: Standards, the preliminary site plan shall be approved or approved with conditions.

(d)

If the Staff Report identifies changes that need to be made to the preliminary site plan to ensure it complies with § 8.3H.7: Standards, the applicant shall submit a modified preliminary site plan or final site plan addressing the required changes.

(e)

The SPRC shall review the preliminary site plan within a reasonable time after its resubmittal, and approve, approve with conditions or disapprove the application, based on the standards in § 8.3H.7: Standards. If the preliminary site plan is not resubmitted within 60 days of the date the SPRC provides the applicant the Staff Report, the application shall be considered withdrawn.

Final Site Plan. The procedure for the review of a final site plan shall be the same as the procedure for a preliminary site plan established in Subsection 6(a)(1) of § 8.3H: Site Plan. The final site plan shall be in substantial conformance with the preliminary site plan and comply with the standards in § 8.3H.7: Standards.

Full Site Plan Review in the CBTR District. The procedure for full site plan review in the CBTR District shall be the same as the procedure for full site plan review established above (§ 8.3H.6.c), except that after final site plan is approved or approved with conditions by the SPRC, it shall be placed on the agenda of the next regularly scheduled Planning Commission meeting by the City Planner, along with a written report containing the SPRC's findings. At the meeting, the Planning Commission shall review the final site plan, the written report, and all other relevant information and testimony, and approve, approve with conditions or disapprove the plans based on the standards in § 8.3H.7: Standards.

Standards. A site plan shall be approved upon a finding that:

Uses. The uses in the site plan comply with § 4.1: Use Table.

Zone District Use Standards. The development and uses in the site plan comply with § 4.2: Use Standards.

Site Configuration. All elements of the site plan are harmoniously and efficiently organized in relation to topography, the size, and type of the lot, the land use character of adjoining properties and the types and size of buildings, and are consistent with any adopted plans for the area and standards or guidelines for location of structures on the site.

Site Plan Review

Not Adversely Affect Development or Improvement of Surrounding Property. The development proposed in the site plan does not adversely affect the normal and orderly development or improvement of surrounding property for uses permitted in Table 4.1, Use Table.

Not Adversely Impact on Surrounding Land Uses and Zoning. The development proposed in the site plan is harmonious with, and not harmful or injurious to existing and planned future uses in the immediate area. The proposed development will be coordinated with improvements serving the subject property and with the other developments in the vicinity.

Design and Development Standards in Historic Districts and CCBI). The development proposed in a site plan located within local historic districts, other historically designated areas or within the CCBD district conforms to all applicable design and development standards.

Preservation of Historic Resources. The site plan demonstrates judicious effort to preserve and protect historic resources to the greatest extent reasonable, and the site plan meets all federal, state, and local regulations pertaining to historic resources.

Open Space. Open space is distributed and conveniently located physically with respect to the overall development, will be accessible to all residents of the development and is located to meet the needs of the residents or occupants. Open space shall be rationally coordinated with open space features of adjacent areas and enhance the natural features of the site.

Preservation of Natural Features. The site plan demonstrates judicious effort to preserve the integrity of the land, existing topography, natural features (i.e., slopes, woodlands, etc.) and natural drainage patterns. Regulated and nonregulated wetlands are preserved or modified in a legal manner.

Preservation of Woodlands and Trees. The site plan demonstrates judicious effort to preserve existing woodlands, understory, and individual quality trees to the greatest extent reasonable.

Greenbelts, Landscaping, and Screening. Proposed landscaping complies with the standards of § 6.2: Landscaping, and all other applicable landscaping and screening requirements of the City. Greenbelts along public street frontage and buffer zones from adjacent zone districts shall be provided where required. Parking lot landscaping is provided as required in § 6.2: Landscaping. The amount, type, and minimum size of landscaping shall be identified in a plant list with appropriate labeling on the landscaping plan.

Stormwater Management. Stormwater management is consistent with all federal, state and City regulations. The development will not substantially reduce the natural retention storage capacity of any watercourse, increase the potential for flooding, or increase the stormwater runoff from the site. Provisions are made to accommodate stormwater that complements the natural drainage patterns and wetlands, prevents erosion and the formation of dust. On-site storage, sedimentation ponds, or plantings may be required to reduce stormwater runoff or to filter stormwater so that it is of an acceptable quality when it returns to the aquifer. Vegetation (preferably vegetation native to Southwest Michigan) shall be used in the stormwater management system when feasible. Stormwater runoff on paved areas shall be collected at intervals not obstructing the flow of vehicular or pedestrian traffic, and will not create standing water or cause unnecessary erosion of soil or other material. The proposed development shall comply with the regulations of the City of Kalamazoo's "Performance Standards for Groundwater Protection within Wellhead Protection Capture Zones and Stormwater Quality Management."

[Amended 5-21-2007 by Ord. No. 1826]

Soil Erosion Control. The site plan is designed to meet or exceed all soil erosion standards and regulations of the City.

Traffic Impacts and Mitigation. The site plan is designed so the location and design of driveways are safe in relation to streets giving access to the site and in relation to pedestrian traffic. Traffic improvements shall be planned to accommodate the needs of the development proposed in the site plan.

Access, Internal Streets, and Circulation. The site plan is designed so safe, convenient and well defined vehicular circulation is provided within and accessing the site. Access to the site is designed to minimize conflicts between vehicles and pedestrians, and with traffic using adjacent streets and driveways. All streets and driveways are in accordance with the standards of the City. Service drives are provided where needed, and meet requirements of City regulations.

Nonmotorized Transportation and Circulation. The site plan is designed so safe and convenient pedestrian and bicycle circulation is provided within and accessing the site, according to the City's Nonmotorized Transportation Plan, including sidewalks, pathways, walkways, trails, bicycle routes and paths, sky-walks, and/or other nonmotorized transportation corridors. In accordance with Section 6.1 M. of this ordinance, bicycle parking spaces shall be provided on all properties that are subject to the site plan review process.

[Amended 1-3-2011 by Ord. No. 1876]

Emergency Vehicle Access. The site plan is designed so adequate access is provided for emergency vehicles to the site and all buildings or groups of buildings.

Parking and Loading Spaces. The number and dimensions of off-street parking and loading/unloading spaces, and the design of parking and loading areas, comply with the requirements of § 6.1: Off-Street Parking and Loading. The site provides barrier free parking and access in compliance with all applicable federal, state and City regulations.

Waste Receptacles. Waste receptacles (e.g., dumpsters, compactors and individual recycle stations) proposed in the site plan comply with all appropriate City regulations and are screened pursuant to § 6.3D: Screening of Waste Receptacles.

Exterior Lighting. Exterior lighting proposed in the site plan complies with § 6.6: Operational Performance Standards, and all other applicable City regulations. Exterior lighting is arranged so it is deflected away from adjacent properties and it does not impede the vision of traffic along adjacent streets.

Signs. Signage proposed in the site plan complies with Chapter 7: Signs, and is generally complementary with surrounding signage and does not impede adjacent traffic operations.

Storage of Potentially Hazardous Materials or Waste. Any uses in the site plan utilizing storing or handling of hazardous material provides secondary containment facilities and documentation of compliance with all appropriate state and federal regulations.

Utilities. The site plan provides adequate utility services. All new utility distribution lines (public or private) shall be placed underground, when feasible. Proposed utilities shall be approved by the City Engineer.

Groundwater Protection. The site plan is designed to comply with all applicable federal, state, and City groundwater protection requirements. The proposed development shall comply with the regulations of the City of Kalamazoo's "Performance Standards for Groundwater Protection within Wellhead Protection Capture Zones and Stormwater Quality Management."

[Amended 5-21-2007 by Ord. No. 1826]

Phasing. Any phases of development in the site plan are in logical sequence so that any phase will not depend upon a subsequent phase for adequate access, public utility services, drainage, or erosion control. The review board may require a phasing plan with each submittal.

Agency Coordination. The applicant has demonstrated the site plan meets the standards of other government agencies, where applicable.

aa)

Site Development Standards. The development proposed in the site plan and its general layout and design comply with all appropriate standards in Chapter 6: General Development Standards.

bb)

Other Relevant Standards of This Ordinance. The development proposed in the site plan and its general layout and design comply with all other relevant standards of this Ordinance, and is consistent with public health, safety, and welfare.

Conditions of Approval. The review body may, in approving the site plan, impose such conditions on the approval and the premises to be developed or used as is determined are required to ensure compliance with the standards of this section. Performance guarantees may be required to ensure completion of site improvements pursuant to § 8.3.H.9: Performance Guarantees.

Performance Guarantees.

General. The review body may require a performance guarantee to ensure completion of the site improvements (excluding building) for the site plan. The performance guarantee may take the form of a cash deposit, surety bond, certified check, or an irrevocable bank letter of credit.

Determination of Amount, Deposit and Rebate. The amount of the performance guarantee shall be determined by the City Engineer and the City Planner. The applicant shall deposit the performance guarantee with the City Treasurer prior to application for a construction permit. If the required improvements take longer than six months to complete, the City Planner shall authorize a rebate of any cash deposit in proportion to the amount of work that has been completed in accordance with the approved sketch plan or final site plan.

10.

Record and Transmittal of Site Plan Approval. The grounds for the action taken on each site plan application shall be recorded in writing by the body taking final action on the site plan (sketch plan, preliminary site plan or final site plan). A copy of an approved sketch plan or final site plan shall be transmitted to the applicant, the City Planner, the Community Development Division, the Engineering Division and Public Safety by the Chairperson of the SPRC within two weeks of the date of final approval by the review board.

11.

Effect of Sketch Plan or Final Site Plan. Approval of a sketch plan or final site plan, whichever is appropriate, authorizes the development approved, subject to any conditions of approval. A sketch plan or final site plan, including any conditions, shall run with the land and not be affected by a change in ownership.

12.

Expiration. Approval of a sketch plan or final site plan, whichever is appropriate, shall become invalid at the end of one year after the date of its issuance if a construction permit for at least one building in the development proposed in the site plan is not approved. Permitted time frames do not change with successive owners.

13.

Extension. Upon written request, one extension of six months may be granted by the body that approved the sketch plan or final site plan for good cause shown if a request for an extension is submitted prior to the expiration of the permit pursuant to § 8.3H.12: Expiration.

14.

Engineering Plans, Specifications, and Inspection. Subsequent to sketch plan or final site plan approval, and before any construction proceeds, complete engineering plans and specifications for construction of storm sewers and drains, sanitary sewers, water mains, driveways, roads and parking area improvements, all conforming to City standards, shall be submitted for review and approval by the City and, when required, by county and state agencies.

15.

Modification of Sketch Plan or Final Site Plan During Construction. It shall be the responsibility of the applicant to notify the City if changes to the sketch plan or final site plan are made during construction. If they constitute minor deviations, they are subject to review and approval, approval with conditions or disapproval by the City Planner pursuant to § 8.3H.16: Minor Deviations. If they constitute amendments, they are subject to review and approval, approval with conditions or disapproval by the review board pursuant to § 8.3H.17: Amendments.

16.

Minor Deviations. Minor deviations from a site plan (sketch plan, preliminary site plan or final site plan) may be approved by the City Planner. All minor deviations shall comply with the minimum requirements of this Ordinance. All other modifications shall be considered amendments and shall be reviewed and approved pursuant to § 8.3H.17: Amendments. Minor deviations shall consist of:

Minor Variations in Layout. Minor variations in the design layout of the development.

Residential Floor Area. An increase or decrease in residential floor area of 5% or less of the site plan.

Nonresidential Floor Area. An increase or decrease in commercial, industrial, institutional, semi-public, organizational and other nonresidential floor area of 5% or less of the site plan.

Finished Grades or Heights of Landscape or Screening Berms. Increases or decreases from the planned finished grades or heights of landscape or screening berms within two feet.

Trees, Shrubs, Ground Cover. Changes in the species, sizes of specimens or spacing of required trees, shrubs, or the type of ground cover to be used as designated on the site plan.

Finished Surface. Changes in the type of finished surface of walks, roads, drives, parking lots and loading and unloading paved areas.

Height. Increases in the height of buildings or structures by less than 10%.

Walls, Fencing, or Screening. Increases or decreases of the length or height of walls, fencing or screening by 20% or less.

Accessory Uses. Additions or deletions of permitted accessory uses to the approved principal uses designated on the site plan.

Right-of-Ways and Public or Private Easements. Additions, deletions or relocations of rights-of-way and public or private easements or adjustments to accommodate essential services for the proposed development or developments on adjacent properties.

Changes Due to Unforeseen Natural or Environmental Conditions or Natural or Constructed Features. Additions to accommodate changes due to unforeseen natural or environmental conditions or natural or constructed features e.g. underground water or geological features, existing structures and improvements and items of historical or other significance.

17.

Amendments. A site plan (sketch plan, preliminary site plan or final site plan) may be amended only in accordance with the procedures and standards established for its original approval.

18.

Property Maintenance.

General. It shall be the responsibility of the owner of a property for which a sketch plan or final site plan has been approved to maintain the property in accordance with the approved site design on a continuing basis until new zoning regulations supersede the regulations upon which the approval was based, or until a new site design is approved pursuant to this section. This maintenance requirement includes healthy landscaping walls, fences, pavement, pavement markings, signs, building exterior, drainage facilities, and all other elements of a site. Any property owner who fails to maintain an approved site design shall be deemed in violation of the use provisions of this Ordinance and shall be subject to the penalties appropriate for a use violation.

Condominium Projects. With respect to condominium projects, the Master Deed shall contain provisions describing the establishment of a condominium association and the responsibilities of the condominium association, condominium owners, and public entities, with regard to maintenance of the property in accordance with the approved sketch plan or final site plan on a continuing basis. The Master Deed shall further establish the means of permanent financing for required maintenance and improvement activities that are the responsibility of the condominium association. Failure to maintain an approved sketch plan or final site plan shall be deemed a violation of the use provisions of this Ordinance and shall be subject to the penalties appropriate for a use violation.

19.

Stop Work and Revocation. Work on an approved sketch plan or final site plan may be stopped or revoked by the review board that approved the site plan if construction or use is not in conformance with the approved plans. In such case, the site plan shall be placed on the agenda of the review board for consideration, and written notice shall be sent to the applicant at least 10 days prior to the meeting. If the review board finds that a violation exists and has not been remedied prior to the meeting, it may direct construction or use on the approved sketch plan or final site plan to stop until it can be brought into conformance with the approved sketch plan or final site plan. If construction or use continues that is not in conformance with the approved plan(s), the site plan shall again be placed on the agenda of the review board for consideration, and written notice shall be sent to the applicant at least 10 days prior to the meeting. If the review board finds that a violation continues to exist and has not been remedied, the review board shall revoke the sketch plan or final site plan and direct all construction or use on the approved sketch plan or final site plan to cease.

Sign Permit.

Purpose. A sign permit shall be required pursuant to the procedures of this section and the standards of Chapter 7: Signs, to ensure that proposed development complies with the requirements for signage established by this Ordinance.

Applicability. A sign permit shall be approved for all signs, except those signs exempted pursuant to § 7.2: Exemptions.

Procedure.

Initiation, Application and Contents, Fees and Submission. The procedures for initiation of an application for a sign permit, the application contents, fees, application submission and sufficiency determination shall comply with those relevant provisions in § 8.1: General Provisions.

Action by Zoning Inspector. After the application is determined sufficient, the Zoning Inspector shall review the application and determine whether the application complies with the standards in Chapter 7: Signs.

Approval. If the Zoning Inspector finds that the application complies with the standards in Chapter 7: Signs, the Zoning Inspector shall approve the sign permit.

Fails to Comply.

If the Zoning Inspector determines the application fails to comply with the requirements of Chapter 7: Signs, the applicant shall be provided comments explaining why the application fails to comply with the review requirements, and an opportunity to submit a revised application. A revised application shall be reviewed by the Zoning Inspector within a reasonable time after its resubmittal and approved, approved with conditions or disapproved, based on the standards in Chapter 7: Signs.

If the application is not resubmitted within 30 days, the application shall be considered withdrawn.

Effect of Sign Permit. Issuance of a sign permit shall authorize only the particular signage approved in the sign permit. A sign permit, including any conditions, shall run with the land and not be affected by a change in ownership.

Expiration. A sign permit shall expire at the end of one year after the date of its initial approval if the sign(s) are not constructed.

Extension. Upon written request, one six-month extension of the sign permit may be granted by the Zoning Inspector for good cause shown.

Amendment. A sign permit may be amended, extended or modified only in accordance with the procedures and standards established for its original approval.

Violations. Sign violations shall be treated as violations of this Ordinance and the Building Code.

Temporary Use Permit.

Applicability. The provisions of this section shall apply to all proposed temporary uses as set forth in § 4.3: Accessory and Temporary Uses and Structures, unless otherwise specifically exempted.

Procedure.

Initiation, Submission and Review of Application. The procedures for initiation of an application for a temporary use permit, the application contents, fees, application submission, sufficiency determination and review of the application by City staff shall comply with those relevant provisions in § 8.1: General Provisions.

Action by City Planner. Within 30 days after the application is determined sufficient, the City Planner shall review the application and approve, approve with conditions or disapprove the application for temporary use permit based on the relevant standards in § 4.3 Accessory and Temporary Uses and Structures.

Standards. A temporary use permit shall be approved upon a finding that the temporary use, as proposed, complies with the relevant standards in § 4.3: Accessory and Temporary Uses and Structures.

Permit Issued. All approved applications shall be issued a temporary use permit authorizing the establishment of the approved temporary use. The temporary use permit shall be subject to the time limits and expiration provisions set forth in § 4.3: Accessory and Temporary Uses and Structures.

When Effective. A temporary use permit shall be effective beginning on the date of approval.

Expiration. All temporary use permits shall expire within six months.

Extension. Upon written request, one six-month extension may be granted by the City Planner for good cause shown.

Amendment. A temporary use permit may be amended, extended or modified only in accordance with the procedures and standards established for its original approval.

Approval of Zoning Compliance.

Purpose. An approval of zoning compliance shall be required in accordance with the provisions of this section in order to ensure that proposed development complies with the standards of this Ordinance, and to otherwise protect the public health, safety, and welfare of the citizens of the City.

Applicability. An approval of zoning compliance shall be required prior to approval of all construction permits that require zoning compliance.

Procedure.

Receipt of Construction Permit Application From Building Official. Where appropriate, after receipt of an application for a construction permit, the Building Official shall forward the construction permit application to the Zoning Inspector for review pursuant to the procedures and standards of this section.

Action by Zoning Inspector. After receipt of a construction permit application from the Building Official, the Zoning Inspector shall review the application and approve or disapprove the application based on the standards in § 8.3K.4: Standards. If the application is approved, an approval of zoning compliance shall be issued.

Standards. An approval of zoning compliance shall be approved upon a finding the application complies with all relevant standards of this Ordinance.

Effect of Approval of Zoning Compliance. Issuance of an approval of zoning compliance shall mean that the proposed development is in compliance with the procedures and standards of this Ordinance.

Expiration. Receipt of an approval of zoning compliance shall expire at the end of six months after the date of its initial approval if an application for a construction permit has not been approved.

Amendment. An approval of zoning compliance may be amended, extended or modified only in accordance with the procedures and standards established for its original approval.

Interpretations.

Authority. Interpretations to this Ordinance shall be made by the City Planner, including: interpretations of the text of this Ordinance; interpretations of the zone district boundaries; and interpretations of whether an unspecified use falls within a use classification or use group allowed in a zone district.

Initiation. A written interpretation may be requested by the City Commission, the Planning Commission, or any resident, landowner or person having a contractual interest in land in the City.

Procedure.

Submission of Request for Interpretation. Before a written interpretation shall be provided by the City Planner, a request for interpretation shall be submitted to the City Planner in writing in a form established by the City Planner and made available to the public.

Determination of Sufficiency. Within seven days after a request for interpretation has been submitted, the City Planner shall determine whether it is sufficient.

If the City Planner determines that the request is not sufficient, a notice shall be provided to the applicant specifying the deficiencies. The City Planner shall take no further action on the request for interpretation until the deficiencies are remedied. If the applicant fails to respond to the deficiencies within 30 days, the request for interpretation shall be considered withdrawn.

When the request for interpretation is determined sufficient, the City Planner shall review the request and render an interpretation pursuant to the procedures and standards of this section.

Rendering of Interpretation. Within 30 days after the request for interpretation has been determined sufficient, the City Planner shall review and evaluate the request in light of the Comprehensive Plan, this Ordinance, the Zone District Map, and other relevant codes and statutes, consult with the City Attorney or other effected City staff, and then render an interpretation.

Form. The interpretation shall be in writing and sent to the applicant by mail within seven days after the interpretation is made by the City Planner.

Appeal. Any person aggrieved by a written interpretation from the City Planner may appeal the interpretation to the Zoning Board of Appeals pursuant to § 8.3F: Appeals of Administrative Decisions, by filing a written appeal of the administrative decision/determination with the City Planner pursuant to § 8.3F.2a.

Beneficial Use Determination.

General. If after the submission and decision on the appropriate applications for development approval or permits for a plan for the development of land a landowner in the City is of the opinion that all reasonable economically beneficial use of that landowner's land has been denied by the application of this Ordinance, then the procedures of this section shall be used prior to seeking relief from the courts in order that any denial of economically beneficial use of land may be remedied through a nonjudicial forum.

Purpose. The purpose and intent of the City Commission is that every landowner in the City enjoys all reasonable economically beneficial use of land. It is also the purpose and intent of this section to provide for relief to the landowner, where appropriate, from the application of this Ordinance. The procedures set forth in this section are intended to permit landowners who believe they have been deprived of all reasonable economically beneficial use of their land to apply to the City Commission for relief sufficient to provide an economically beneficial use of the land.

Procedure.

Application for an Appeal for Beneficial Use Determination. An appeal for a beneficial use determination may be filed by a landowner at any time with the City Planner, along with an application fee established pursuant to § 8.1E: Fees.

Beneficial Use Determination

Contents of Application. The application shall be submitted in a form established by the City Planner and made available to the public, and shall include the following:

The landowner's name and address.

A legal description and the street address (when a street address is available) of the land.

Documentation of the date of purchase and the purchase price of the land, and any offers to purchase the land made by any person, corporation, or association, within the last three years.

A description of the physical features present on the land, the land's total acreage, the present use of the land, and the use of the land at the time of the adoption of this Ordinance.

Evidence of any investments made by the landowner to improve the land, the date the improvements were made, and the costs of the improvements.

A description of what uses of land were available when the land was purchased by the landowner.

A description of the regulations and uses permitted that are alleged to result in an elimination of economically beneficial use of the land.

All appraisals, studies, and any other supporting evidence, and any actions taken by the City related to the land.

A description of the use that the landowner believes represents the minimum legally required economically beneficial use of the land and all documentation, studies, and other supporting evidence for such opinion.

Determination of Sufficiency. The City Planner shall determine if the application is sufficient and includes data in sufficient detail to evaluate the application to determine if it complies with the appropriate substantive requirements of this section.

If the City Planner determines the application is not sufficient, a written notice shall be mailed to the applicant specifying the application's deficiencies. No further action shall be taken on the application until the deficiencies are remedied. If the applicant fails to correct the deficiencies within 30 days, the application shall be considered withdrawn, and the application fee shall be refunded.

When the application is determined sufficient, the City Planner shall notify the applicant, in writing, of the application's sufficiency, and forward the application to the Hearing Officer for the scheduling of a hearing.

Establishment of Date for Hearing by Hearing Officer and Notice. Within 30 calendar days of the date that the application has been determined sufficient by the City Planner, the Hearing Officer shall schedule a hearing on the appeal for beneficial use determination. The City Planner shall provide the applicant and all landowners within 300 feet of the land subject to the appeal for beneficial use determination at least 15 days notice of the hearing by regular mail.

Hearing by Hearing Officer. At the hearing, the applicant or the applicant's representative shall present the applicant's case and the City Attorney shall represent the City. All evidence presented shall be under oath, and the parties involved shall be permitted to cross-examine witnesses. The sworn testimony and evidence shall pertain to the standards set forth in § 8.3M.4: Beneficial Use Standards, as to whether the applicant has been deprived of an economically beneficial use of the land and the standards in § 8.3M.5: Granting of Relief, pertaining to the degree of relief needed to provide the landowner with an economically beneficial use of the land.

Findings of the Hearing Officer. Within 30 days of the close of the hearing, the Hearing Officer shall prepare recommended findings of fact and a proposed order for the consideration of the City Commission. The findings and recommendations of the Hearing Officer as to whether the land is provided economically beneficial use shall be based on the evidence submitted and the standards in § 8.3M.4: Beneficial Use Standards. If the Hearing Officer finds that the applicant has been denied economically beneficial use of the subject land, then the Hearing Officer shall recommend a use that permits an economically beneficial use and results in a minimum change from the regulations of this Ordinance as they apply to the subject land, pursuant to the standards set forth in § 8.3M.4: Beneficial Use Standards, and § 8.3M.5: Granting of Relief, or other relief as is determined appropriate. The Hearing Officer's recommended findings of facts and proposed order shall be in writing and shall detail the basis of the conclusions from the record of the hearing.

Action by City Commission. The City Planner shall schedule a hearing before the City Commission within 30 days of the date the Hearing Officer issues the recommended findings of fact and proposed order. The City Planner shall provide the applicant and all landowners within 300 feet of the land subject to the appeal for beneficial use determination at least 15 days notice of the hearing by mail. At the hearing, the City Commission shall approve the findings of fact and proposed order of the Hearing Officer, or may attach conditions, modify, or reverse the findings of fact or proposed order of the Hearing Officer, based on the standards of § 8.3M.4: Beneficial Use Standards, and § 8.3M.5: Granting of Relief. If the City Commission attaches conditions, modifies or reverses the findings of fact or proposed order, it shall do so only where the record of the hearing indicates that the Hearing Officer is unsupported by the record, or that the proposed order is not in conformance with the standards of § 8.3M.4: Beneficial Use Standards, and § 8.3M.5: Granting of Relief.

Beneficial Use Standards. In determining if a landowner has been deprived of an economically beneficial use of land, the Hearing Officer and City Commission shall take into account the following factors:

Economically Viable Use. In making the determination of whether the land is provided an economically beneficial use, the Hearing Officer/City Commission shall first evaluate the uses of the land as provided by this Ordinance and the uses of land in relation to the uses provided similarly situated lands. For the purposes of this section, economically beneficial use means the opportunity to make a return equivalent to that which would have been received from a conservative financial investment. Transitory economic issues shall not be relevant to this determination.

Diminution in Value. The market value of the land, as established by the comparable sales approach, prior to adoption of this Ordinance, which caused the landowner to apply for relief shall be compared to the market value of the land, as established by the comparable sales approach, with the regulations as applied. Market value of the land prior to the adoption of this Ordinance shall constitute its highest and best use on (one day prior to the effective of this Ordinance, as amended) or the date of purchase of the land, whichever is later, and any other land value/appraisal information that the applicant would like to be considered. All appraisals shall be proposed by qualified licensed appraisers, and shall follow the best professional practices as established by the profession. A mere diminution in market value is not sufficient to support a determination of denial of economically beneficial use.

External Costs.

The amount or nature of any subsidy that may be required by the City, neighbors, purchasers, tenants, or the public-at-large if the uses allowed under this Ordinance are modified; or

Any other adverse effects on the City and its residents.

Current State of the Law. The state of the law established by the United States Supreme Court, the federal Circuit Courts of Appeals, and the Michigan Supreme Court, relevant to these standards.

Granting of Relief.

Relief. If the finding is that a landowner has been deprived economically beneficial use of land, or is otherwise entitled to relief pursuant to the standards of this section, relief shall be granted.

General. In granting relief, the Hearing Officer may recommend and the City Commission may adopt any legally available incentive or measure reasonably necessary to offset any substantial economic hardship, and may condition such incentives upon approval of specific development plans. If there is a finding that the denial of the application would create a substantial economic hardship, the Hearing Officer may recommend and the City Commission may consider additional relief to provide an appropriate increase in market value or other benefit or return to the applicant sufficient to offset the substantial economic hardship. The types of incentives that the Hearing Officer may recommend and the City Commission may consider includes, but are not limited to, the following:

An amendment of the Zone District Map (rezoning of property) to a more appropriate classification, issuance of a variance, approval of a site plan, or other appropriate land use regulatory action that will enable the applicant to realize a reasonable return on the property;

An opportunity to transfer density or cluster development on other property;

A waiver of permit fees;

Development finance assistance;

Approval of development on some portion of the property; or

Acquisition of all or a portion of the property at market value.

Minimum Increase. In granting relief, the landowner shall be given the minimum increase in use density/intensity or other possible concessions from this Ordinance in order to permit an economically viable use of the land or a use that is determined to be required by law. The highest use, or even an average or generally reasonable expectation, is not required or intended as the appropriate remedy. The following guidelines shall be used for determining the minimum economically beneficial use of land and, therefore, the amount of relief to be granted a landowner in order to reach that minimum.

A minimum economically beneficial use of the land should be one that does not have any governmental subsidy attached to the long term safe occupation of the land. If such a subsidy is needed, then that should be reflected by lowering the use intensity that is considered a minimum economically viable use on a market valuation basis.

A use common to the City, although it may not involve further development of the land, is considered an economically viable use. Attention shall also be given to land uses that are considered to be the lowest intensity in the City but which uses still provide for occupation and living within the City. These land uses, as well, shall be considered economically viable uses.

The actual condition of the land shall be considered. The reality of limited development potential, given the natural condition of the land, shall not be attributed to the regulations applied to the land. If the land is such that it cannot safely accommodate development with normal grading and clearing practices, this fact shall lower the intensity of use that is considered a minimum economically viable use.

The potential for damages to either residents or land shall be assessed in determining economically viable use. The need for a governmental subsidy to future landowners shall be considered, and the cost of such subsidies shall be deducted from the otherwise established minimum economically viable use.

Expectations shall, in general, not be considered. Only reasonable expectations backed by investments as required by the current state of the law, shall be considered.

The current state of law established by the United States Supreme Court, the federal Circuit Court of Appeals, and the Michigan Supreme Court, relevant to the granting of relief.

Appeal. The decision of the City Commission may be appealed to a court of law.