HomeMy WebLinkAboutOrdinance 5330 ORDINANCE NO. 5330
AN ORDINANCE AMENDING §163.14 OF THE UNIFIED DEVELOPMENT
CODE TO PERMIT A PERIODIC REVIEW OF CONDITIONAL USE
PERMITS AS DESCRIBED HEREIN.
WHEREAS, the Fayetteville Planning Commission and Board of Directors have adopted
hundreds of conditional use permits over many decades; and
WHEREAS, older approved conditional use permits tend to be less detailed and
oftentimes did not included conditions of approval; and
WHEREAS, some conditional use permits need to be reviewed at times for compatibility
with the surrounding neighborhood; and
WHEREAS, the periodic review of a conditional use permit should be limited to review
items that are in the public interest;
NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE
CITY OF FAYETTEVILLE,ARKANSAS:
Section l: That the City Council of the City of Fayetteville, Arkansas amends §163.14
Revocation or Change of Conditional Use to add the following subsection "E":
§163.14 Revocation or Change of Conditional Use
"(E) Periodic review. In addition to the consideration of substantial violation provisions of
(A), (B), and (C), the Planning Commission may periodically review and reconsider a
conditional use permit under the following criteria:
(1) Receipt of a petition to review an approved conditional use permit from an adjacent
property owner and 50% or more of the property owners within 100 feet of the property
boundary on which the conditional use permit has been granted, in a form provided by
the Planning Division. The property owners signing the petition must provide the reasons
for which they feel reconsideration is warranted and how they are adversely affected by
the approved conditional use permit.
Page No. 2
Ordinance No. 5330
(2) Upon receipt of a verified petition, the Planning Commission may review the conditional
use permit and either approve the conditional use as it exists or modify the conditional
use with new or altered conditions to achieve a greater degree of compatibility with
adjacent properties.
(3) Appeals from the decision of the Planning Commission under this subsection shall follow
the requirements of §155 Appeals of the Unified Development Code, for conditional use
permits.
(4) The right to a periodic review of a conditional use under this subsection may only be
exercised five years or longer after the conditional use permit was granted. No periodic
review may be conducted more than one (1) time in a five (5) year period.
(5) This periodic review procedure is not applicable for wireless communication facilities
and vital government facilities."
PASSED and APPROVED this 15th day of June, 2010.
APPROVED: ATTEST:
By: ----By:
L ONE D JTORID&A4ayor SONDRA E. SMITH, City Clerk/Treasurer
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AGENDA REQUEST
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FOR: COUNCIL MEETING OF May 2010
FROM:
LIONELD JORDAN, MAYOR
ORDINANCE OR RESOLUTION TITLE AND SUBJECT:
An ordinance to amend §163.14 Revocation or Change of Conditional Use of the Unified
Development Code of Fayetteville to enact a new subsection (E) Periodic Reviews
APPROVED FOR AGENDA:
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Jeremy to Date
Development Services Director
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City Attorney
Don Mayr -
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Chief o taff
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Mayor
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THE CITY OF FAYETTEVILLE,ARKANSAS
DEPARTMENT CORRESPONDENCE
ARKANSAS
' 6
CITY COUNCIL AGENDA MEMO
To: Mayor Jordan, City Council
From: Jeremy Pate, Development Services Director
Date: June 02, 2010
Subject: Periodic Review of Conditional Use Permit
AMENDED ORDINANCE
Attached you will find the draft ordinance proposing a periodic review of a conditional use permit by
petition, as amended by the City Council. The amendments that have been adopted are as follows:
■ E(1): Changed measurement for adjacent property owners from "100-foot radius" to "within. 100 feet of
property boundary"
■ E(2): Removed revocation clause; upon review the Planning Commission may approve the CUP as it exists
or modify it with new or altered conditions of approval
ORDINANCE NO.
AN ORDINANCE AMENDING §163.14 OF THE UNIFIED
DEVELOPMENT CODE TO PERMIT A PERIODIC REVIEW
OF CONDITIONAL USE PERMITS AS DESCRIBED HEREIN.
WHEREAS, the Fayetteville Planning Commission and Board of Directors have adopted
hundreds of conditional use permits over many decades; and
WHEREAS, older approved conditional use permits tend to be less detailed and
oftentimes did not included conditions of approval; and
WHEREAS, some conditional use permits need to be reviewed at times for compatibility
with the surrounding neighborhood; and
WHEREAS, the periodic review of a conditional use permit should be limited to review
items that are in the public interest;
NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE
CITY OF FAYETTEVILLE, ARKANSAS:
Section 1: That the City Council of the City of Fayetteville, Arkansas amends §163.14
Revocation or Change of Conditional Use to add the following subsection"E":
x'163.14 Revocation or Change of Conditional Use
"(E) Periodic review. In addition to the consideration of substantial violation provisions of(A),
(B), and (C),the Planning Commission may periodically review and reconsider a conditional use
permit under the following criteria:
(1) Receipt of a petition to review an. approved conditional use permit from an adjacent
property owner and 50% or more of the property owners within 100 feet of the property
boundary on which the conditional use permit has been granted, in a form provided by the
Planning Division. The property owners signing the petition must provide the reasons for
which they feel reconsideration is warranted and how they are adversely affected by the
approved conditional use permit.
(2) Upon receipt of a verified petition, the Planning Commission may review the conditional
use permit and either approve the conditional use as it exists or modify the conditional use
with new or altered conditions to achieve a greater degree of compatibility with adjacent
properties.
(3) Appeals from the decision of the Planning Commission under this subsection shall follow
the requirements of §155 Appeals of the Unified Development Code, for conditional use
permits.
(4) The right to a periodic review of a conditional use under this subsection may only be
exercised five years or longer after the conditional use permit was granted. No periodic
review may be conducted more than one (1)time in a five (5) year period.
(5) This periodic review procedure is not applicable for wireless communication facilities
and vital government facilities."
PASSED and APPROVED this day of , 2010.
APPROVED: ATTEST:
By: By:
LIONELD JORDAN,Mayor SONDRA E. SMITH, City Clerk/Treasurer
FAYETTEVILLE
THE CITY OF FAYETTEVILLE,ARKANSAS
KIT WILLIAMS,CITY ATTORNEY
DAVID WHITAKER,ASST.CITY ATTORNEY
DEPARTMENTAL CORRESPONDENCE LEGAL DEPARTMENT
TO: Lioneld Jordan, Mayor
City Council
CC: Don Marr, Chief of Staff
Jeremy Pate, Development Services Director
FROM: Kit Williams, City Attorney c W... " W.. :.._...... .......
..........
DATE: June 7, 2010
RE: Revoking Conditional Use Legal Concerns
Can the granting of a conditional use create a vested property interest
in the conditional use holder which cannot be changed or revoked by the
Planning Commission without the City being forced to pay for the loss of
the vested property right? I informed you at the May 18th City Council
meeting in response to Mr. Unser s litigation threats that I believed the
granting of a conditional use would probably not mature into a vested
property right for which a city would have to pay if the conditional use
was later revoked. I also told you that there was no Arkansas Supreme
Court decision that I could find that directly answered that question. I do
agree with Mr. Bob Estes (who represents neighbors who have complained
about the Stiles' operation) that a conditional use is probably not a "vested
property right" such that it would be constitutionally protected.
The most recent Arkansas Supreme Court deciding whether a city
would be liable for prohibiting a development project begun pursuant to a
conditional approval is Potter v. City of Tontitown, 371 Ark. 200 (2007). The
test to establish a vested right was pronounced by the Court that "in order
to obtain a vested right one must prove that the owner has in good faith
substantially entered upon the performance of the series of acts necessary
to accomplish (the development)."
The Supreme Court held that "the Potters had knowledge that the
county's approval of their development was conditional, and would be
considered null and void if Tontitown was found to have jurisdiction. Yet
they began developing their property anyway. Therefore, we conclude
that they did not act in good faith." Id.
Although this was a conditional approval and not precisely a
conditional use, the most important word is "conditional." I do not believe
a conditional use is permanent like a zoning which must be approved by
the City Council. Conditional uses have long been approved by the
Planning Commission with rare appeals to the City Council. Our Unified
Development Code now requires that before a conditional use can be
granted, the Planning Commission must certify in writing:
1. "The granting of the conditional use will not adversely affect
the public interest; and
2. "'(P)rovisions ... have been made concerning ... general
compatibility with adjacent properties and other properties in
the district."
No such ordinance requirements for written conditions were in existence
when the City Board of Directors granted many conditional uses in the
past. I do believe that compatibility with adjacent properties in an inherent
part of any conditional use, not only for the initial granting of such
conditional use, but throughout the utilization of the conditional use by the
permittee.
In Smith- v. City of Arkadelphia, 336 Ark. 42 (1999), Mr. Smith was
issued a building permit. Arkadelphia then changed its building codes
making Smith's construction plans much more expensive. Smith claimed
he had a vested property right with his approved and issued building
2
permit such that he did not have to comply with Arkadelphia's new
requirements. The Arkansas Supreme Court rejected this argument.
"The general rule is that a grant of a license by a municipality
is made with the implied reservation of the right to impose
reasonable police regulations, which may go to the extent of
revoking the license, which was not done in the case before
us. Therefore, the possession of a license does not exempt
the licensee from the operation of ordinances and regulations
that were legally enacted in the exercise of such powers after
issuance of the license. 51 Am.Jur.2d Licenses and Permits
§145p. (1970)" Smith v. City of Arkadelphia, 336 Ark. 42, 984
S.W. 2d 392, 394 (1999). (emphasis added)
Granting a conditional use is a granting of a privilege to the
conditional use applicant. This does not create a contractual obligation for
the City of Fayetteville. Nor does it create a vested property interest in the
conditional use holder. Such conditional use is subject to regulations
enacted after issuance of the conditional use permit.
"The permit was merely the granting of a privilege, and did
not constitute a contract between the city and appellant. No
vested rights were acquired by obtaining a permit, and none
arose in the acquisition of property or preparations for the
construction of the building prior to the enactment of the
new ordinance." Id.
City Councils have wide discretion to make reasonable provisions for
the peace, safety and welfare of its citizens. When circumstances within a
city change, the City Council can enact new ordinances to regulate conduct
or prescribe new procedures to meet the changing needs.
"(Municipalities have the power and duty to make reasonable
provisions for the safety of persons and property and
municipal authorities have wide discretion in these matters.
3
"As a general rule, property is not exempt from the operation
of subsequent ordinances and regulations legally enacted by
the corporation." Id., 984 S.W. 2d at 394-395.
Even though Mr. Smith had obtained a valid building permit under
the then existing ordinance, the City of Arkadelphia had the power to
amend or replace the ordinance under which Mr. Smith obtained his
building permit and require him to obtain a new permit or follow the new
requirements for his existing permit. The Supreme Court held that Mr.
Smith "did not acquire a vested property right in either the building
permit, or the underlying regulatory Ordinance ...." Id.
The City Council was wise to alter the proposed amendment so as to
not empower the Planning Commission to revoke a conditional use which
has no express, written conditions. The proposed amendment will only
authorize the Planning Commission to place explicit written conditions on
a conditional use to ensure that the conditional use "will not adversely
affect the public interest" and will protect its "general compatibility with
adjacent properties and other properties in the district." §163.02 (C)(3)(c) of
the Unified Development Code. Thus, a revocation of a conditional use will
still require a violation of whatever express written conditions that the
Planning Commission has placed upon the conditional use. This improves
the notice to the conditional use permittee and gives the permittee better
opportunity to correct possible problems or issues.
CONCLUSION
I believe the Arkansas Supreme Court would determine that a holder
of a conditional use granted by the City would not acquire a vested
property right-in either the permit or the underlying Unified Development
Code section regulating how such a conditional use permit could be
amended or revoked. The amended version of the ordinance now before
you addresses the need of our community to be able to review conditional
uses if they may have become incompatible with adjoining properties and
neighborhoods, but still provides substantial safeguards for holders of
conditional uses.
4
Tav
THE CITY OF FAYETTEVILLE,ARKANSAS
DEPARTMENT CORRESPONDENCE
Af}KANSAS
CITY COUNCIL AGENDA MEMO
To: Mayor Jordan, City Council
Thru: Don Marr, Chief of Staff
From: Jeremy Pate, Development Services Director
Date: May 06, 2010
Subject: Periodic Review of Conditional Use Permit
RECOMMENDATION
Staff recommends the City Council consider adoption of a amendment to the UDC §163.14, to allow a
periodic review of a conditional use permit, by petition, under certain conditions.
BACKGROUND
The Mayor, City Attorney and staff have been working together to draft a code amendment to amend the
existing §163.14 Revocation or Change of Conditional Use section of the UDC. Current conditional use permits that
the Planning Commission approve have specific conditions of approval often listing hours of operation, the specific
use proposed on the property, how much of the property/structure can be utilized for said use, what screening or
buffering is required, noise requirements, number of employees, etc. However, in a random evaluation of conditional
use permit files that are currently archived (pre-year 2000), staff was able to easily locate ten (10) older conditional
use permits that contained either no conditions or very few attached to the use. It is evident that many more exist.
Examples include:
0 1994 Lokomotion, College Avenue—one condition,to review the use again in one year
0 1991 Youthbridge Emergency Youth Shelter and Rehabilitation Facility, Crossover—no conditions
0 1993 National Home Center/Home Depot, Shiloh—no conditions
0 1989 Church in mobile home in Sunbridge Mobile Home park—no conditions
0 1978 Recycled Aluminum Furnace Operation, Poplar—no conditions
0 1976 In-home day care, Winwood—one condition,maximum 16 children
0 1990 Mini-storage, Wedington—no conditions
0 1992 Skateboard Park, Prairie—no conditions
0 1991 Bed &Breakfast, S. Hill —no conditions
0 1990 Antique Store, Mission—one condition, stripe parking spaces
The potential trouble with approvals of this nature - which by their very nature tend to need conditions of
approval in order to make them compatible or they would be a "use by right" in that particular zoning district — is
that in time the neighborhood surrounding the use may change, or the conditional use itself may evolve into
something that was not anticipated when the application was filed, reviewed and approved. The most reasonable
THE CITY OF FAYETTEVILLE,ARKANSAS
solution to this is to take the item before the Planning Commission to review the use and ensure it remains
compatible. Under current ordinances an approved conditional use permit may be reviewed under the following
procedure: the Zoning and Development Administrator must receive a complaint of a violation, investigate,
determine that a substantial violation of the Conditional Use Permit conditions is occurring, notify the owner to
correct it and the owner chooses not to remedy that violation. Only then can the item be reviewed by the Planning
Commission. However, it is evident that many conditional uses within the city could never meet this standard, due to
the fact that there are little or no qualifying conditions to be violated when the use was granted by the Planning
Commission. Given the fact that there are evidently many such uses within our City, staff feels it is proper to amend
the existing ordinance to allow for these types of uses to be revisited,when appropriate.
DISCUSSION
The proposal is to add a "periodic review" subsection to §163.14. This review could only occur once every
five years, upon petition by an adjacent property owner plus 50% of the property owners within 100 feet of the
conditional use boundary. The idea is to have the periodic review be a procedure for the Planning Commission to
review the compatibility of a conditional use permit if the majority of the neighborhood surrounding the use feels
adversely affected. After a review, the Planning Commission may approve the use as is, add conditions of approval,
or revoke the conditional use permit if it determines there are no conditions that could make the use compatible
under existing standards.
BUDGET IMPACT
None.