§ 4-7. SPECIAL USE PERMITS AND CONDITIONAL USE PERMITS.

4-7.1.

Special Use Permit Review Process. An application for a special use permit shall be submitted to the Board of Adjustment by filing a copy of the application with the Zoning Administrator in the planning department 25 days prior to the Board of Adjustment meeting at which the request will be reviewed. The review process for a special use permit shall include:

(A)

Planning Department review and recommendation in accordance with Section 4-7.3;

(B)

Public hearing held by the Board of Adjustment; and

(C)

Board of Adjustment review and action.

4-7.2.

Conditional Use Review Process. An application for a conditional use permit shall be submitted to the Board of Commissioners by filing a copy of the application with the Zoning Administrator 25 days prior to the Planning Board meeting at which the request will be reviewed. The review process for a conditional use permit shall include:

(A)

Technical Review Committee and planning staff review and recommendation pursuant to Section 4-7.4 (A) and (B);

(B)

Planning Board review and recommendation;

(C)

If the Planning Board recommends the approval of the conditional use permit application, the Zoning Administrator shall consult with the Clerk to the Board to establish and schedule a public hearing before the Board of Commissioners on the application. The public notice required for the public hearing shall be in accordance with Section 4-7.5.

4-7.3.

Recommendations on Special Use Permit Applications.

(A)

When presented to the Board of Adjustment at the hearing, the application for a special use permit shall be accompanied by a report setting forth the planning department's proposed findings concerning the application's compliance with Section 4-3 and the other requirements of this Ordinance, as well as any staff recommendations for additional requirements to be imposed by the Board of Adjustment.

(B)

If the Planning Director proposes a finding or conclusion that the application fails to comply with Section 4-3 or any other requirement of this Ordinance, it shall identify the requirement in question and specifically state supporting reasons for the proposed findings or conclusions.

(C)

The Board of Adjustment may, by general rule applicable to all cases or any class of cases, or on a case-by-case basis, refer applications to the Planning Board to obtain its recommendations.

4-7.4.

Recommendations on Conditional Use Permits.

(A)

Before being presented to the Board of Commissioners, an application for a conditional use permit shall be referred to the Technical Review Committee for a recommendation and to the Planning Board for a recommendation in accordance with this Section. The Board of Commissioners may not hold a public hearing on a conditional use permit application until the Planning Board has had an opportunity to consider the application pursuant to standard agenda procedures. The Board of Commissioners shall, however, upon the failure of the Planning Board to act on an application as outlined in subsection (C), proceed with holding a public hearing.

(B)

When presented to the Planning Board, the application shall be accompanied by a report setting forth the Technical Review Committee's proposed findings concerning the application's compliance with the requirements of this Ordinance, as well as any planning staff recommendations for additional requirements to be imposed by the Board of Commissioners. If the Technical Review Committee report proposes a finding or conclusion that the application fails to comply with any requirement of this Ordinance, it shall identify the requirement in question and specifically state supporting reasons for the proposed findings or conclusions.

(C)

The Planning Board shall consider the application and the attached Technical Review Committee report within 60 days from the initial date the application was received by the Planning Board. If the Planning Board fails to act on the application within the 60-day period, the Zoning Administrator shall forward the application to the Board of Commissioners. The Planning Board, at its discretion, may hear from the applicant or members of the public.

(D)

After reviewing the application, the Planning Board shall report to the Board of Commissioners whether it concurs in whole or in part with the Technical Review Committee's proposed findings and conditions, and to the extent there are differences, the Planning Board shall propose its own recommendations and the reasons therefor.

(E)

In response to the Planning Board's recommendations, the applicant may modify his application prior to submission to the Board of Commissioners, and the Technical Review Committee may likewise revise its recommendations.

4-7.5.

Public Hearing Requirements and Procedures.

(A)

No special use nor conditional use permit shall be approved until a public hearing has been held by the permit-issuing board.

(B)

The Clerk to the Board shall publish a notice of the public hearing in a newspaper having general circulation in the area. The notice shall be published not less than five days before the date affixed for the hearing. In computing this period, the date of publication shall not be counted but the date of the hearing shall be. The notice required by this Section shall:

(1)

State the date, time, and place of the public hearing;

(2)

Summarize the nature and character of the permit request;

(3)

Reasonably identify the property affected by the permit request;

(4)

State that the full permit request application can be reviewed at the office of the Zoning Administrator; and

(5)

State that substantial changes in the permit request may be made following the public hearing.

(C)

The Zoning Administrator shall mail written notice of the public hearing to the owners of all properties involved in the permit request as well as the owners of all properties any portion of which is within 600 feet of the property involved in the permit request.

(D)

DELETED.

(E)

The Zoning Administrator shall make every reasonable effort to comply with the notice provisions set forth in this Section. However, it is the permit-issuing board's intention that no failure to comply with any of the notice provisions [except those set forth in subsection (B)] shall render any permit request invalid.

(F)

At the conclusion of the public hearing, the permit-issuing board may proceed to vote on the permit request, refer it to a committee for further study, or take any other action consistent with its usual rules of procedure. Section 4-7.6 delineates specific actions that the Board of Commissioners must take on requests for conditional use permits and Section 4-7.7, that the Board of Adjustment must take on requests for special use permits.

(G)

The permit-issuing board is not required to take final action on a permit request within any specific period of time, but it should proceed as expeditiously as practicable on permit requests since inordinate delays can result in the applicant incurring unnecessary costs.

(H)

Subject to subsection (I), the Board of Adjustment or the Board of Commissioners, respectively, shall approve the requested permit unless it concludes, based upon the information submitted at the hearing, that:

(1)

The requested permit is not within its jurisdiction according to the Table of Permissible Uses; or

(2)

The application is incomplete; or

(3)

If completed as proposed in the application, the development will not comply with one or more requirements of this Ordinance.

(I)

Even if the permit-issuing board finds that the application complies with all other provisions of this Ordinance, it may still deny the permit if it concludes, based upon the information submitted at the hearing, that if completed as proposed, the development, more probably than not:

(1)

Will materially endanger the public health or safety; or

(2)

Will substantially injure the value of adjoining or abutting property; or

(3)

Will not be in harmony with the area in which it is to be located; or

(4)

Will not be in general conformity with the land development plan or other plans officially adopted by the Board of Commissioners.

(J)

The burden of persuasion on the issue of whether the development, if completed as proposed, will comply with the requirements of this Ordinance remains at all times on the applicant. The burden of persuasion on the issue of whether the application should be turned down for any of the reasons set forth in Subsection (I) rests on the party or parties urging that the requested permit should be denied.

4-7.6.

Board of Commissioner Action on Conditional Use Permits.

(A)

Upon receipt of a favorable recommendation from the Planning Board, the Board of Commissioners shall review the application for a conditional use permit, the Planning Board's recommendation and the Technical Review Committee's recommendation and shall establish a date for a public hearing to be held on the application before the Board of Commissioners. Public notice of the public hearing shall be in accordance with the provisions of Section 4-7.5.

(B)

Following the public hearing, the Board of Commissioners may proceed to vote on the permit request, refer it to committee for further study, or take any other action consistent with its usual rules of procedure.

(C)

In considering whether to approve an application for a conditional use permit, the Board of Commissioners shall proceed according to the following format:

(1)

The Board of Commissioners shall consider whether the application is complete. If no member moves that the application be found incomplete (specifying either the particular type of information lacking or the particular requirement with respect to which the application is incomplete) then this shall be taken as an affirmative finding by the Board of Commissioners that the application is complete.

(2)

The Board of Commissioners shall consider whether the application complies with all of the applicable requirements of this Ordinance. If a motion to this effect passes, the Board of Commissioners need not make further findings concerning such requirements. If such a motion fails or is not made, then a motion shall be made that the application be found not in compliance with one or more of the requirements of this Ordinance. Such a motion shall specify the particular requirements the application fails to meet. Separate votes may be taken with respect to each requirement not met by the application.

(3)

If the Board of Commissioners concludes that the application fails to comply with one or more requirements of this Ordinance, the application shall be denied. If the Board of Commissioners concludes that all such requirements are met, it shall issue the permit unless it adopts a motion to deny the application. Such a motion shall propose specific findings, based upon the evidence submitted, justifying such a conclusion.

4-7.7.

Board of Adjustment Action on Special Use. In considering whether to approve an application for a special use permit, the Board of Adjustment shall proceed in the same manner as the Board of Commissioners when considering conditional use permit applications (Section 4-7.6), except that the format of the Board of Adjustment's proceedings will differ as a result of the four-fifths voting requirement set forth in Section 3-2.5(A).

(A)

The Board shall consider whether the application is complete. If the Board concludes that the application is incomplete and the applicant refuses to provide the necessary information, the application shall be denied. A motion to this effect shall specify either the particular type of information lacking or the particular requirement with respect to which the application is incomplete. A motion to this effect, concurred in by a simple majority vote of the Board, shall constitute the Board's finding on this issue. If a motion to this effect is not made and concurred in by a simple majority vote, this shall be taken as an affirmative finding by the Board that the application is complete.

(B)

The Board shall consider whether the application complies with all of the applicable requirements of this Ordinance. If a motion to this effect passes by the necessary four-fifths vote, the Board need not make further findings concerning such requirements.

If such a motion fails to receive the necessary four-fifths vote or is not made, then a motion shall be made that the application be found not in compliance with one or more requirements of this Ordinance. Such a motion shall specify the particular requirements the application fails to meet. A separate vote may be taken with respect to each requirement not met by the application, and the vote of the number of members equal to more than one-fifth of the board membership (excluding vacant seats) in favor of such a motion shall be sufficient to constitute such motion a finding of the Board. As provided in Subsection 4-7.5(H), if the Board concludes that the application fails to meet one or more of the requirements of this Ordinance, the application shall be denied.

(C)

If the Board concludes that all such requirements are met, it shall issue the permit unless it adopts a motion to deny the application for one or more of the reasons set forth in Subsection 4-7.5(I). Such a motion shall propose specific findings, based upon the evidence submitted, justifying such a conclusion. Since such a motion is not in favor of the applicant, it is carried by a simple majority vote.

4-7.8.

Additional Requirements on Special Use and Conditional Use Permits.

(A)

Subject to subsection (B), in granting a special or conditional use permit, the Board of Adjustment or Board of Commissioners, respectively, may attach to the permit such reasonable requirements in addition to those specified in this Ordinance as will ensure that the development in its proposed location:

(1)

Will not endanger the public health or safety;

(2)

Will not injure the value of adjoining or abutting property;

(3)

Will be in harmony with the area in which it is located; and

(4)

Will be in conformity with the land development plan, thoroughfare plan, or other plan officially adopted by the Board of Commissioners.

(B)

The permit-issuing board may not attach additional conditions that modify or alter the specific requirements set forth in this Ordinance unless the development in question presents extraordinary circumstances that justify the variation from the specified requirements.

(C)

Without limiting the foregoing, the permit-issuing board may attach to a permit a condition limiting the permit to a specified duration.

(D)

All additional conditions or requirements shall be entered on the permit.

(E)

All additional conditions or requirements authorized by this Section are enforceable in the same manner and to the same extent as any other applicable requirement of this Ordinance.

(F)

A vote may be taken on application conditions or requirements before consideration of whether the permit should be denied for any of the reasons set forth in Subsections 4-7.5(H) or 4-7.5(I).