§ 27-210. Rezoning—Conventional districts.

(a)

Findings and purpose.

(1)

It may be necessary or advisable from time-to-time to amend the districts provided for on the zoning map.

(2)

When a zoning amendment is proposed, use of conventional zoning districts is appropriate for the development of single lots with uses compatible to existing or planned surrounding development. Development of multiple lots, subdivisions, and most nonresidential uses should be accomplished through a planned district pursuant to section 27-211.

(3)

A site plan is required with conventional zoning to ensure that the proposed development conforms to these regulations and proposes a compatible arrangement of buildings, off-street parking, lighting, signage, landscaping, vehicle and pedestrian circulation, site drainage, and open spaces. Site plan review shall consider the siting of proposed construction and its impact on the existing topography and natural vegetation, and the relationship of proposed construction to existing public and private improvements in the immediate area and its conformance to the policies and standards of the master plan. The design shall encourage the elimination of unnecessary grading and endeavor to retain the natural character of the site, including the preservation of trees and other natural features.

(b)

Applicant. A proposal for an amendment or change in zoning may be initiated by the unified government board of commissioners, the planning commission, or upon application of the property owner or owner's agent.

(c)

Applicability. A development plan, as provided in section 27-212 shall be required for all uses except the construction of a single-family residence on a single lot.

(d)

Preapplication conference. A preapplication conference is required pursuant to section 27-197.

(e)

Submission requirements. The director shall prepare applications specifying the information to be submitted in support of a rezoning application. This shall include, at a minimum:

(1)

Application form.

(2)

Preliminary development plan, as provided in section 27-212.

(3)

Application fee.

(4)

Traffic study for rezoning. In the case of an application for rezoning of land for a use that may substantially change traffic patterns, or create traffic congestion, the director may require that the applicant procure the services of a competent professional traffic engineer for the purpose of preparing a traffic study. Such traffic study shall show how traffic generated by the proposed development will be handled on the site and how vehicular ingress and egress from the site onto public streets will function in relation to existing street and intersection capacities and other neighborhood conditions.

(5)

Other information as specified on the application form.

(6)

Other information as requested by the director or director's designee, public works director, county engineer, planning commission or unified government board of commissioners.

(f)

Application and review procedures.

(1)

Determination of completeness. Applications shall be submitted to the director for a determination of completeness pursuant to section 27-198. An application is complete when all of the items required by these regulations and on the application form are prepared and/or answered, and any required supplemental or additional applications (e.g., comprehensive plan amendment) are submitted with the appropriate fee to the department of urban planning and land use.

(2)

Neighborhood meeting. The applicant shall comply with the requirements for a neighborhood meeting pursuant to section 27-199.

(3)

Staff review. Following a determination of completeness, the staff shall review the application pursuant to section 27-200.

(4)

Notice and public hearing. Following completion of staff review and such neighborhood meetings as are required, the application shall be scheduled for a public hearing before the planning commission.

a.

Notice shall be provided pursuant to section 27-203.

b.

The planning commission shall consider the criteria listed in subsection (f)(6) of this section in making a recommendation.

(5)

Planning commission action. Following the close of the public hearing on an application to rezone land, the planning commission shall recommend approval, conditional approval, or denial at the earliest reasonable time, and shall prepare an accurate written summary of the proceedings for the unified government board of commissioners. If the planning commission fails to make a recommendation on a rezoning request within 63 days of the close of the public hearing on that application, the planning commission shall be deemed to have made a recommendation of disapproval. The application will be forwarded by the director to the unified government board of commissioners within 50 days of the deemed denial.

(6)

Factors to be considered.

a.

Rezoning application. Approval, conditional approval, or denial of the rezoning application shall be based upon consideration of the following factors:

1.

Compatibility with the comprehensive plan.

2.

The character of the neighborhood.

3.

The zoning and uses of properties nearby, and the compatibility of the proposed uses with those uses.

4.

The suitability of the subject property for the uses to which it has been restricted.

5.

The length of time the property has remained vacant as zoned; the length of time the property has been actively marketed.

6.

The extent to which the proposed use is reasonably necessary for the convenience and welfare of the public and will not substantially or permanently injure the appropriate use, visual quality or marketability of nearby property.

7.

The extent to which the proposed use would increase or change traffic or parking demand in any ways that would adversely affect road capacity, condition, safety, or create parking problems.

8.

The extent to which the proposed use could cause environmental harm or enhance the environment.

9.

The extent to which utilities and public services are available and adequate to serve the proposed use.

10.

The economic impact of the proposed use on the community.

11.

The application must meet applicable ordinance requirements.

12.

The relative gain to the public health, safety, and welfare as compared to the hardship imposed upon the individual landowner or landowners.

b.

Development plan. The following criteria shall be considered when reviewing the development plan:

1.

The site is capable of accommodating the buildings, parking areas and drives with appropriate open space.

2.

The plan provides for safe and easy ingress, egress and internal traffic circulation.

3.

The plan is consistent with good land planning and site engineering design principles, particularly with respect to safety.

4.

The architectural designs are consistent with unified government policies and regulations and compatible with surrounding features.

5.

The plan represents an overall development pattern that is consistent with the comprehensive plan, street map and other adopted planning policies.

6.

Right-of-way, as determined by the public works department, has been identified for dedication.

(7)

More restrictive change than requested. The planning commission may recommend a change in a zoning district that constitutes a more restrictive change than requested by the applicant, provided such change is to a planned district and in keeping with the following:

Residential Districts
R Rural Residence District	Most Restrictive
R-1 Single-family District
R-1(B) Single-family District
R-2 Two-family District
R-2(B) Two-family District
R-3 Townhouse District
R-4 Garden Apartment District
R-5 Apartment District
R-6 High Rise Apartment District
R-M Mobile Home Park	Least Restrictive
Business Districts
C-O Nonretail Business District	Most Restrictive
C-1 Limited Business District
C-D Central Business District
TND Traditional Neighborhood Design District
C-2 General Business District
C-3 Commercial District	Least Restrictive
Industrial Districts
B-P Planned Business Park	Most Restrictive
M-1 Light Industrial and Industrial Park
M-2 General Industrial District
M-3 Heavy Industrial District	Least Restrictive

 

a.

The planning commission may recommend and the unified government board of commissioners may accept a change in zoning which is equal to or more restrictive than the one requested, provided the more restrictive district is in the same R, C or M category for which the change was requested.

b.

In no case may a change to an R district be approved if the application is for a C or M district, and in no case may a C district be approved if the application is for an M district.

c.

Applications for district A-G may not be changed to another category unless a new application is filed.

d.

A planned district shall be equally restrictive as its equivalent district.

e.

If a development plan or development plan modification is required, the application shall be held over until plans are submitted by the applicant in accordance with the department of urban planning and land use schedule for submissions.

(8)

Protest.

a.

Filing. If a protest against such amendment, supplement or change in the zoning of land is filed in the office of the unified clerk within 14 days after the conclusion of the public hearing before the planning commission pursuant to the publication notice, duly signed and acknowledged by the owners of 20 percent or more of any real property proposed to be rezoned, or by the owners of 20 percent of the total area, excluding streets or public ways, located within or without the corporate limits of the city and located within 200 feet of the boundaries of the property proposed to be rezoned, such amendment shall not be passed except by at least three-fourths vote of all the members of the unified government board of commissioners. The distance in certain cases may be 1,000 feet where prescribed by state statutes.

b.

Withdrawal. Any person may withdraw their signature from a petition by filing an affidavit with the unified clerk prior to the deadline for filing a protest petition. After the deadline, petitions cannot be withdrawn. All of the signers of a petition may notify the unified government board of commissioners of their intent to withdraw a petition following the filing deadline, but this will not affect the voting requirement.

(9)

Action by unified government board of commissioners. When the planning commission submits a recommendation of approval, conditional approval, or disapproval of such amendment and the reasons therefor, the unified government board of commissioners shall consider the criteria established in sections 27-205 and subsection (f)(6) of this section and may take any action consistent with sections 27-205 and 27-206, including:

a.

Adopting such recommendations by ordinance;

b.

Overriding the planning commission's recommendation by a two-thirds majority vote of the membership of the unified government board of commissioners; or

c.

Returning such recommendation to the planning commission with a statement specifying the basis for the unified government board of commissioners' failure to approve or disapprove. If the unified government board of commissioners returns the planning commission's recommendation, the planning commission, after considering the same, may resubmit its original recommendation giving the reasons therefor or submit new and amended recommendation. Upon the receipt of such recommendation, the unified government board of commissioners, by a simple majority thereof, may adopt or revise or amend and adopt such recommendation by the respective ordinance or resolution, or it need take no further action thereof. If the planning commission fails to deliver its recommendation to the unified government board of commissioners following the planning commission's next regulation meeting after receipt of the unified government board of commissioners' report, the unified government board of commissioners shall consider such course of inaction in the part of the planning commission as a resubmission of the original recommendation and proceed accordingly. If adopted, the proposed rezoning shall become effective upon publication of the respective adopting ordinance or resolution.

(10)

Conditional approval of rezoning. In cases in which rezoning applications are conditionally approved by the unified government board of commissioners, the rezoning ordinance shall not be published and thus shall not take effect until the conditions are fulfilled.

a.

Where a dispute arises between the applicant and staff regarding whether or not the conditions have been fulfilled, the matter shall be brought before the unified government board of commissioners for resolution. No further action will be taken to process the application pending the unified government board of commissioners' determination.

b.

Failure to fulfill the conditions within one year of unified government board of commissioners' approval shall necessitate the scheduling of a public hearing with requisite notice before the unified government board of commissioners. At this public hearing, the unified government board of commissioners shall consider all of the relevant factors and either approve, approve with conditions, or deny the rezoning application.

(g)

Amendments to preliminary development plans. Once a preliminary plan has been approved, changes may be made only after approval of a revised preliminary development plan. Changes that are not considered significant pursuant to subsection (g)(1) of this section may be approved by the director at his discretion, with disapproval appealed to the planning commission. Significant changes may be approved only after a rehearing by the planning commission and unified government board of commissioners, subject to the same procedural requirements of an original application.

(1)

For the purposes of this section, significant changes shall be determined by the director or director's designee and shall mean any of the following, provided they are still within the approved standards of the applicable zoning district. Any change that seeks to vary the standards of the applicable district must either be approved by the planning commission through a planned district rezoning application or the board of zoning appeals through a variance:

a.

Increases in density or intensity of residential uses by more than five percent;

b.

Increases in total floor area (entire plan) of all nonresidential buildings by more than five percent or 5,000 square feet, whichever is less;

c.

Increases of lot coverage by more than five percent;

d.

Changes of architectural style that will make the project inconsistent with previous approvals;

e.

Changes in ownership patterns or stages of construction that will lead to a different development concept;

f.

Changes in ownership patterns or stages of construction that will impose substantially greater loads on streets and other public facilities;

g.

Decreases of any peripheral setback of more than five percent;

h.

Decreases of areas devoted to open space of more than five percent or the substantial relocation of such areas;

i.

Changes of traffic circulation patterns that will affect traffic outside of the project boundaries;

j.

Modification or removal of conditions or stipulations to the preliminary development plan approval; or

k.

Modifications that change, amend, or violate the terms of the comprehensive plan.

(2)

Appeal of the director's determination of significant may be taken to the planning commission, whose decision shall be final. No further action will be taken to process the application pending the planning commissions' determination.

(h)

Review and approval of final development plans. Permits for grading or construction shall be issued only after final plans have been approved by the planning commission. The developer may submit preliminary and final development plans simultaneously at such person's own risk.

(1)

Contents of a final development plan. Contents of a final development plan shall be as specified in section 27-212(e).

(2)

Conditions for approval. Final plans shall be approved only after the following conditions have been met:

a.

Final plans conform to the approved preliminary plan and meet any special conditions imposed at the time of rezoning. Significant changes, as defined in section 27-211(g)(1) and determined by the director or his designee, between the preliminary plan and the final plan shall be sufficient reason to require the resubmission of a preliminary plan.

b.

If the project is being constructed in stages, each stage shall be functional and shall be adequately served by access drives, parking and utilities as a freestanding project which will not have adverse effects on the neighborhood if subsequent stages are not carried out.

(3)

Planning commission action.

a.

A final development plan which contains no modifications or additions, except the addition of required detail, from the approved preliminary plan shall be approved by the planning commission if the commission determines that all of the submission requirements have been satisfied. Normally, a public hearing is not required; however, the planning commission may require a public hearing where more than six months have passed following preliminary plan approval.

b.

A final development plan that contains modifications from the approved preliminary development plan but which changes are not significant pursuant to subsection (g) of this section, as measured against the original approved preliminary plan, may be approved by the planning commission without a public hearing provided the commission determines that all of the submission requirements have been satisfied. The planning commission may require a public hearing where more than six months have passed following preliminary plan approval.

c.

If the final development plan has significant changes from the preliminary plan, pursuant to subsection (g) of this section, it shall not be considered and shall be converted to an application for preliminary plan approval.

(i)

Abandonment of final development plan. In the event a plan or section thereof is given final approval and thereafter the landowner shall abandon said plan or a section thereof and shall so notify the unified government in writing, or in the event the landowner shall fail to commence, as evidenced by receipt of building permits and start of construction, the planned development within 18 months after final approval has been granted, then in either event such final approval shall terminate and shall be deemed null and void unless such time period is extended by the planning commission upon written application by the landowner. Whenever a final plan or section thereof has been abandoned as provided in this section, no development shall take place on the property until a new final development plan has been approved.

(j)

Time limit for refiling. No application for any change of zone classification shall be filed within one year following the final disposition by the unified government board of commissioners of a previous application on the same property or a portion thereof. Upon petition by the applicant, the director of planning and chairman of the planning commission may permit refiling of said application within such one-year period, when:

(1)

Significant physical, economic or land use changes, or other changes of circumstance that substantially affect the health, safety or general welfare have taken place within the immediate vicinity;

(2)

A significant comprehensive plan or zoning ordinance text change has been adopted; or

(3)

When the reapplication is for a change of zoning classification that is more restrictive than the original request or at a density at least 30 percent less than the original request.

The applicant shall submit a statement in detail setting out those changes deemed significant and relied upon for refiling the original application.

(Code 1988, § 27-275; Ord. No. O-27-05, § 1, 3-24-2005)