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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 OkY/TR0,6 Fq' FAYETf EVI LLE m Jrase �®°•••m°•o om®e s®®AA�GTONBeGoS��a AGENDA REQUEST i� 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: -6Wy4'- Oin'1010 Jeremy to Date Development Services Director Icy it it Williams U Date City Attorney Don Mayr - a Date Chief o taff �/L* neld Jord 6ate Mayor Io 160d 04 CAS c 'l 'I 4/ab cc �� le 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.