ARTICLE V. DEVELOPMENT REVIEW PROCEDURES

The following general requirements apply to all applications.

1. Authority to file applications. The Planning Commission or the Governing Body may initiate any action under this Code with or without an application from the property owner. All notice, hearing and other procedural requirements of this Code shall apply to applications initiated by a public entity, except that written (mailed) notice to individual property owners shall not be required for general revisions.

2. Applications and fees. Applications shall be submitted on forms provided by the department head responsible for accepting the application and in such numbers as required. Applications shall be accompanied by a non-refundable fee established by Governing Body to defray the costs of processing applications. Fees shall not be required with applications initiated by the Planning Commission or Governing Body. Any application that does not include required information or that is not accompanied by the required fee shall be returned to the applicant as incomplete and no further processing of the application shall occur until the deficiencies are corrected. A private access drive is only required to be part of the legal description for notification purposes if the Planning Administrator determines that the traffic on the access drive will be significantly more intensive in frequency or types of vehicles than uses that are permitted by right in the applicable zoning district.

3. Application processing cycles. The Planning Administrator, after consulting with the Planning Commission and affected Governing Body, shall from time to time promulgate a processing cycle for each type of application. Each promulgated processing cycle shall include:

a. Dates of regular meetings of the review and decision bodies;

b. The deadline for receipt of a complete application for consideration of such application at a particular meeting;

c. The scheduling of staff reviews and staff reports on complete applications;

d. All necessary steps in the application process (including hearings, decision meetings, and review by other bodies); and

e. The publication of required notices of hearings.

4. Development review sequence. No subdivision, site plan or other application for development review shall be considered unless the application is consistent with the existing zoning of the subject property or, where permitted by this Code, such application is submitted simultaneously with a proposed zoning map amendment that would make the zoning and the proposed development consistent.

5. Standing to appeal. The following persons shall have the standing to appeal a matter under this Code: the applicant; the Planning Administrator; the Planning Commission; the Governing Body; any owner of land directly affected by the action or proposed action; any owner of land within 200 feet of the property in question in the City and within 1,000 feet of the property in question in the County; if the matter is partly or wholly within the area of influence of another second or third class city in the County, by the Planning Commission or municipal government of that city; or by any other person determined by either the body taking the final, non-appellate, action or by the appellate body to be actually or potentially aggrieved by the action or proposed action.

B. NOTICES AND HEARINGS

The requirements and limitations of this section shall apply to hearings and hearing notices.

1. Compliance with notice requirements. Notice under this Code shall be deemed to be complete and in compliance with applicable requirements when there is substantial compliance with applicable notice requirements. Minor technical deviations from the requirements shall not be deemed to impair the notice where there is actual notice. When required written notices have been properly addressed and deposited in the mail, failure of a party to receive such notice shall not invalidate any subsequent action. In all cases, however, the requirements for the timing of the notice and for specifying the time, date and place of a hearing and the general location of the subject property shall be strictly construed. In all cases, where there is a question raised at the hearing regarding the adequacy of notice, the body hearing the matter shall make a formal finding as to whether there was substantial compliance with the notice requirements of this article.

2. Scope of action. The body holding the hearing may take any action on the application that is consistent with the notice given, including approving such application, approving the application with conditions or denying the application. The review body may impose conditions to the application or allow amendments to the application if the effect of the conditions or the amendments is to allow a less intensive use or zoning district than indicated in the application or to reduce the impact of the development or to reduce the amount of land area included in the application. The review body may not approve a greater amount of development, a more intensive use or a more intensive zoning district than was indicated in the notice.

3. Continuance. A hearing for which proper notice was given may be continued to a later date without again complying with the notice requirements of this article, provided that the hearing is set for a specific date and time.

4. Notices. The provisions of this section describe the various types of notices that may be required. The actual type of notice required for a given application is specified in the relevant section of this article.

a. Published notice. Notice required pursuant to this section shall be published in the official newspaper and shall indicate the time and place of the public hearing and a general description of the application. If such application affects specific property, the subject property shall be designated by legal description or a general description sufficient to identify the property under consideration. If a general description is used, the notice shall include a statement indicating where the complete legal description may be viewed.

b. Written notice. Notice required pursuant to this section shall be mailed to all owners of record of real property within the area to be altered and to all owners of record of real property located in the area to be notified surrounding the area proposed to be altered, before the public hearing, and shall indicate the time and place of the public hearing and a general description of the application. The required area of notification shall be such property located within at least 200 feet of the area proposed to be altered in the City and at least 1,000 feet of the area proposed to be altered in the County. For property located adjacent to or outside the city limits which is proposed to be altered by the City, the area of notification of the City’s action shall be at least 1,000 feet. Notice of the County’s action shall extend 200 feet in those areas where the notification area extends within the corporate limits of a city. In addition, it is the intent of this Code to give advisory notification to such additional persons as shall be specified by Planning Commission policy and as indicated on the application forms, provided that such advisory notification area shall not be used in the calculation for protest in Secs. V-C.10 or V-D.10. The written notice required herein shall be placed in the mail with the postmark to be not less than 20 days prior to the date of the public hearing.

c. Downzonings. Whenever five or more owners of record owning ten or more contiguous or noncontiguous lots, tracts or parcels of the same zoning classification initiate a rezoning of their property from a less restrictive to a more restrictive zoning classification, such amendment shall require notice by publication but shall not require written notice, and shall not be subject to protest petition provision of Sec. V-C.10.

C. ZONING MAP AND ZONING CODE TEXT AMENDMENTS

Any amendment to the zoning district boundaries shown on the Official Zoning Map, including a Planned Unit Development and a Protective Overlay, or any amendment to the text of this Zoning Code shall follow the procedures set forth in this section.

1. Authority. Any amendment to the zoning district boundaries or to the text of this Zoning Code shall require the approval of the Governing Body.

2. Initiation. An application for an amendment to the text of this Zoning Code may be initiated by the Governing Body or the Planning Commission. An application to amend the boundaries of the Official Zoning Map may be initiated by the Governing Body, the Planning Commission or the owners of the property proposed to be rezoned.

3. Application. A complete application for an amendment to the Official Zoning Map or to the text of this Zoning Code shall be submitted to the Planning Administrator in a form established by the Administrator, along with a nonrefundable fee that has been established by the Governing Body to defray the cost of processing the application. No application shall be processed until the application is complete and the required fee has been paid.

a. Special PUD application requirements. Each application for PUD approval shall be accompanied by a PUD concept plan in a form established by the Planning Admininstrator and made available to the public. At a minimum, the concept plan shall include the following information:

(1) A detailed summary and graphic presentation of proposed land uses and development intensities, including number of dwelling units and total nonresidential square feet by land use type;

(2) A detailed explanation of how the proposed plan of development differs from what could be accomplished through strict compliance with the standards of this Code;

(3) The phasing plan and schedule of development, including an explanation of the sequence of buildout; and

(4) An explanation of how the proposed PUD represents an improvement over what could have been accomplished through application of traditional zoning standards.

4. Establishment of hearing date, publication of notice. Promptly upon determining that an application is complete, the Planning Administrator shall schedule a public hearing before the Planning Commission, notify the applicant of the meeting and hearing date and mail written notice at least 20 days prior to the hearing in accordance with the notice requirements of Secs. V-B.4.a, V-B.4.b, V-B.4.c and V-B.4.d. The initial public hearing before the Planning Commission shall be scheduled for the next meeting date for which it is practicable to give at least 20 days’ notice.

5. Report of Planning Administrator. The Planning Administrator shall prepare a staff report that reviews¬ the proposed amendment in light of the Comprehensive Plan, the general requirements of this Code, and the applicable review criteria set forth in Sec. V-C.8. The Planning Administrator shall provide a copy of the report to the Planning Commission in its agenda packet and shall send a copy of the report to the applicant by first-class mail, pre-paid, at least five days before the scheduled Planning Commission hearing.

6. Action by the Planning Commission. The Planning Commission shall hold a public hearing on the application. For a PUD application, the Planning Commission shall review the proposed PUD plan for compliance with the requirements of the Comprehensive Plan, the PUD standards of Article III and the general requirements of this Code. After the public hearing, the Planning Commission shall recommend approval, approval with conditions or modifications, or denial of the application, and shall transmit an accurate written summary of the proceedings to the Governing Body’s designated clerk. If the Planning Commission fails to make a recommendation on a rezoning request or its motion results in a tie vote, the Planning Commission shall be deemed to have made a recommendation of disapproval.

7. Action by the Governing Body. The Governing Body shall consider the application, and may, in its discretion, hold a public hearing on the application. In acting on the application, the Governing Body may: (1) adopt the Planning Commission’s recommendation by ordinance or resolution, as appropriate; (2) override the Planning Commission’s recommendation by a two-thirds majority vote of the membership of the Governing Body; or (3) return such recommendation to the Planning Commission with a statement specifying the basis for the Governing Body’s failure to approve or disapprove. If the Governing Body returns the Planning Commission’s recommendation, the Planning Commission, after considering the same, may resubmit its original recommendation giving the reasons therefore or submit new and amended recommendation. Upon the receipt of such recommendation, the Governing Body, by a simple majority thereof, may adopt or may revise or amend and adopt such recommendation by the respective ordinance or resolution, or it need take no further action thereon. If the Planning Commission fails to deliver its recommendation to the Governing Body following the Planning Commission’s next regular meeting after receipt of the Governing Body’s report, the Governing Body shall consider such course of inaction on the part of the Planning Commission as a resubmission of the original recommendation and proceed accordingly. Except when the Governing Body returns a recommendation to the Planning Commission, the Governing Body shall consider the factors specified in Sec. V-C.8. The proposed amendment shall become effective and final upon publication of the adopting ordinance or resolution.

8. Review criteria. The criteria for review of a proposed amendment to the Official Zoning Map or the text of the Zoning Code are set out in this section. Not all of the criteria must be given equal consideration by the Planning Commission or Governing Body in reaching a decision. The criteria to be considered shall be as follows:

a. The zoning, uses and character of the neighborhood;

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

c. The extent to which removal of the restrictions will detrimentally affect nearby property;

d. The length of time the subject property has remained vacant as zoned;

e. The relative gain to the public health, safety and welfare as compared to the loss in value or the hardship imposed upon the applicant;

f. The conformance of the requested change to the adopted or recognized comprehensive plan and/or other plans or policies being utilized by the City or County;

g. Impact of the proposed development on community facilities;

h. Opposition or support of neighborhood residents; and

i. A consideration of the recommendations of professional staff.

The applicant shall have the burden of demonstrating that the proposal meets the applicable review criteria.

10. Valid protest of proposed application.

a. Governing Body action with valid protest. If a valid protest petition against an application for an amendment to the Official Zoning Map is filed in the office of the City Clerk within 14 days of the conclusion of the Planning Commission hearing pursuant to the publication notice, signed by the owners of record of 20 percent or more of any real property proposed to be altered or by the owners of record of 20 percent or more of the total real property within the area required to be notified by state statute (pursuant to Sec. V-B.4.b) of the proposed zoning map amendment, excluding streets and public ways and property excluded pursuant to Sec. V-C.10.b, such amendment may be approved by the Governing Body only by a vote of approval by at least three-fourths of all the members of the Governing Body.

b. Exclusion of specific property proposed for rezoning. For purposes of determining the sufficiency of a protest petition, if the proposed rezoning was requested by the owner of the specific property subject to the rezoning or the owner of the specific property subject to the rezoning does not oppose in writing such rezoning, such property also shall be excluded when calculating the “total real property within the area required to be notified” as that phrase is used in Sec. V-C.10.a.

c. Exemption for downzonings. Downzonings as defined in Sec. V-B.4.c are not subject to these protest provisions.

d. Effect of withdrawal of protest petition. A protest petition may be withdrawn at any time prior to the date of the scheduled hearing by the Governing Body by written notice from the protesting owner received in the office of the City Clerk or the County Clerk, as applicable. Property covered by a withdrawn petition shall not be used in the calculation of a valid protest.

11. Successive applications. In the event that the Governing Body denies an application for an amendment to the Official Zoning Map, or the applicant withdraws his or her application after a public hearing by the Planning Commission, a similar application shall not be refiled for one year from the latest advertised public hearing date on said application. The Planning Commission may permit a refiling of said application after six months of the latest advertised public hearing date when it determines that significant physical, economic or land use changes have taken place within the immediate vicinity, or a significant zoning regulation text change has been adopted, or when the reapplication is for a more restrictive change of zoning classification or is significantly different than the original request. The applicant shall submit a statement in detail setting out those changes which he or she deems significant and upon which he or she relies for refiling the original application.

12. Appeals of final action. The Governing Body’s decision on an application for an amendment to the Official Zoning Map or to the text of this Zoning Code shall be the final local action. Appeals of such final local action shall be taken to the district court in and for the Eighteenth Judicial District of the State of Kansas.

13. Amendments to PUDs and P-Os. Approved Planned Unit Developments and Protective Overlays may be amended in whole or in part by following the same procedures as required for consideration and approval of an original PUD or P-O application.

14. Adjustments to PUD plans and P-Os. The Planning Administrator may approve minor adjustments to approved PUD plans and to approved P-Os, unless finding that the proposed development would have one or more of the negative impacts stated in Sec. V-I.6, but in no event shall the Administrator approve an adjustment that allows any of the following:

a. More than a five-foot or ten percent increase in building height, whichever is greater;

b. More than a ten percent increase in floor area or building coverage or in residential unit density when calculated on a total, aggregate project basis;

c. A change in use to a use that is more “intensive” (see Sec. II-B.6.i) than the use approved as part of the PUD plan.

15. Interpretations of PUDs and P-Os. The Planning Administrator shall have authority to make written interpretations of any provisions of an approved PUD plan or an approved P-O in the manner set forth in Sec. V-H. These interpretations may include interpretations permitting uses other than those listed if they are similar to and no more intensive than uses listed in the PUD plan. Where the PUD provisions involve codes other than this Zoning Code, such as but not limited to the Sign Code and the Landscape Code, the Planning Administrator shall also have authority to make written interpretations of those provisions in the same manner.

D. CONDITIONAL USES

This section sets out the required review procedures for Conditional Uses.

1. Authority. An application for Conditional Use approval shall require site plan approval by the Planning Commission or, if forwarded to the Governing Body for final action, shall require approval by the Governing Body. If the Conditional Use application is accompanied by a rezoning application, both shall be forwarded to the Governing Body for final action after a hearing and recommendation by the Planning Commission.

2. Initiation. An application for Conditional Use approval may be proposed by the owner(s) of the subject property.

3. Application. A complete application for Conditional Use approval shall be submitted to the Planning Administrator in a form established by the Administrator, along with a nonrefundable fee that has been established by the Governing Body to defray the cost of processing the application. Each application for Conditional Use approval shall be accompanied by a detailed site plan in a form established by the Administrator and made available to the public. No application shall be processed until the application is complete and the required fee has been paid.

4. Establishment of hearing date, publication of notice. Promptly upon determining that an application is complete, the Planning Administrator shall schedule a public hearing before the Planning Commission, notify the applicant of the meeting and hearing date and give at least 20 days’ notice of the hearing in accordance with the notice requirements of Secs. V-B.4.a, V-B.4.b and V-B.4.d. The initial public hearing before the Planning Commission shall be scheduled for the next meeting date for which it is practicable to give at least 20 days’ notice.

5. Report of Planning Administrator. The Planning Administrator shall prepare a staff report that reviews the proposed application for Conditional Use approval in light of the Comprehensive Plan, the general requirements of this Code, and the applicable review criteria set forth in Sec. V-C.8. The Planning Administrator shall provide a copy of the report to the Planning Commission in its agenda packet and shall send a copy of the report to the applicant by first- class mail, pre-paid, at least five days before the scheduled Planning Commission hearing.

6. Action by the Planning Commission. The Planning Commission shall hold a public hearing on the application. After the public hearing, the Planning Commission may approve, approve with conditions or modifications, or deny the application for Conditional Use approval, based on the criteria of Sec. V-C.8. This provision specifically contemplates that it may be necessary for the Planning Commission to attach additional special conditions to a proposed Conditional Use in order to ensure that it complies fully with the criteria of this Code. This action by the Planning Commission shall be the final action on the Conditional Use application except when any one or more of the following exist: (1) the Conditional Use application is accompanied by a rezoning application; (2) the applicant appeals the action of the Planning Commission; (3) one or more valid protest petitions are filed opposing the action of the Planning Commission; (4) an appeal is filed by anyone with standing to appeal per Sec. V-A.5 of this Code; or (5) the Planning Commission recommends modification of one or more of the conditions in Sec. III-D.6 Supplemental Use Regulations. When any one or more of these exceptions exist, the Planning Commission’s action shall be in the form of a recommendation that is forwarded to the Governing Body for final action. Protest petitions and appeals shall be filed within 14 days of the conclusion of the Planning Commission hearing pursuant to the jurisdiction notice. If the Planning Commission fails to make a recommendation on a Conditional Use request, or its motion results in a tie vote, the Planning Commission shall be deemed to have made a recommendation of disapproval.

7. Action by the Governing Body. If the Conditional Use application is forwarded to the Governing Body for one of the reasons listed in Sec. V-D.6 above, the Governing Body shall consider the application(s) and may, in its discretion, hold a public hearing. The Governing Body’s action on such application(s) shall be the same as set forth in Sec. V-C.7. The Conditional Use may be approved, approved with conditions or modifications, or denied by the Governing Body.

8. Review criteria. The criteria for review of a proposed Conditional Use are as set out in Sec. V-C.8. Not all of the criteria must be given equal consideration by the Planning Commission or by the Governing Body in reaching a decision. The applicant shall have the burden of demonstrating that the proposal meets the applicable review criteria.

9. Protest petitions.

a. Governing Body action required if protest petition received. If one or more protest petitions opposing the action of the Planning Commission are filed in the office of the City Clerk within 14 days of the conclusion of the Planning Commission hearing pursuant to the publication notice, signed by all owners of any real property required by state statute to be notified (pursuant to Sec. V-B.4.b) of the application for the Conditional Use, such Conditional Use application shall be forwarded to the Governing Body for final action.

b. Governing Body action with valid protest of 20 percent. If a valid protest petition against the application for the Conditional Use is filed in the office of the City Clerk within 14 days of the conclusion of the Planning Commission hearing pursuant to the publication notice, signed by the owners of record of 20 percent or more of any real property proposed for Conditional Use or by the owners of record of 20 percent or more of the total real property within the area required to be notified by state statute (pursuant to Sec. V-B.4.b) of the proposed Conditional Use, excluding streets and public ways and property excluded pursuant to Sec. V-D.10.c, such Conditional Use may be approved by the Governing Body only by a vote of approval by at least three-fourths of all the members of the Governing Body.

c. Exclusion of specific property proposed for Conditional Use. For purposes of determining the sufficiency of a protest petition, the specific property for the Conditional Use shall be excluded when calculating the “total real property within the area required to be notified” as that phrase is used in Sec. V-D.10.b.

10. Successive applications. In the event that the final action on a Conditional Use application is that it be denied, or if the applicant withdraws his or her application after a public hearing by the Planning Commission, a similar application shall not be refiled for one year from the latest advertised public hearing date on said application. The Planning Commission may permit a refiling of said application after six months of the latest advertised public hearing date when it determines that significant physical, economic or land use changes have taken place within the immediate vicinity, or a significant zoning regulation text change has been adopted, or when the application is for a different use than the original request. The applicant shall submit a statement in detail setting out those changes that he or she deems significant and upon which he or she relies for refiling the original application.

11. Appeals of final action. The Governing Body’s decision on an application for Conditional Use approval shall be the final local action. Appeals of such final local action shall be taken to the district court in and for the Eighteenth Judicial District of the State of Kansas.

12. Amendments to Conditional Uses. Approved Conditional Uses may be amended by following the same procedures as required for consideration and approval of an original Conditional Use application.

13. Adjustments to Conditional Uses. The Planning Administrator may approve minor adjustments to approved Conditional Use site plans or conditions of approval, unless finding that the proposed development would have one or more of the negative impacts stated in Sec. V-I.6.

14. Failure of Conditions. If the Planning Administrator finds that there is a violation of any of the conditions of a Conditional Use, the Planning Administrator, in addition to enforcing the other remedies set forth in Article VIII hereof, may declare that the Conditional Use is null and void. Such finding and declaration shall be made in writing and mailed to the owner of the real property that is affected by the Conditional Use restrictions. The Planning Administrator’s declaration shall be final unless appealed in accordance with Sec. V-F.

E. COMMUNITY UNIT PLANS (CUP)

This section sets out the required review procedures for CUPs.

1. Authority. An application for CUP approval shall require approval by the Planning Commission or, if forwarded to the Governing Body for final action, shall require approval by the Governing Body. If a CUP application is accompanied by a rezoning application, both shall be forwarded to the Governing Body for final action after a hearing and recommendation by the Planning Commission.

2. Initiation. An application for CUP approval may be proposed by the owner(s) of the subject property.

3. Application. A complete application for CUP approval shall be submitted to the Planning Administrator in a form established by the Administrator, along with a nonrefundable fee that has been established by the Governing Body to defray the cost of processing the application. No application shall be processed until the application is complete and the required fee has been paid. Each application for CUP approval shall be accompanied by a CUP site plan that, at a minimum, includes the following information:

a. A detailed summary and graphic presentation of proposed land uses and development intensities;

b. A screening and buffering plan; and

c. A plan for traffic circulation and access.

4. Establishment of hearing date, publication of notice. Promptly upon determining that an application is complete, the Planning Administrator shall schedule a public hearing before the Planning Commission, notify the applicant of the meeting and hearing date and give at least 20 days’ notice of the hearing in accordance with Secs. V-B.4.a, V-B.4.b, and V-B-4.d. The initial public hearing before the Planning Commission shall be scheduled for the next meeting date for which it is practicable to give at least 20 days’ notice.

5. Report of Planning Administrator. The Planning Administrator shall prepare a staff report that reviews the proposed application for CUP approval in light of the Comprehensive Plan, the CUP standards of Article III, the general requirements of this Code and the Design Standards. The Planning Administrator shall provide a copy of the report to the Planning Commission in its agenda packet and shall send a copy of the report to the applicant by first-class mail, pre-paid, at least five days before the scheduled Planning Commission hearing.

6. Action by the Planning Commission. The Planning Commission, in a public hearing, shall review the proposed CUP for compliance with the requirements of the Comprehensive Plan, the CUP standards of Article III, the general requirements of this Code and the Design Standards. In the course of such review, the Planning Commission may recommend modifications in the site plan as a condition of approval of the plan. Based on that review, the Planning Commission shall act to approve, approve with conditions or modifications, or deny the CUP application. If the CUP is accompanied by a rezoning application, or if an appeal is filed, the Planning Commission’s action shall be in the form of a recommendation that is forwarded to the Governing Body for final action. If the Planning Commission fails to make a recommendation on a community unit plan request, or its motion results in a tie vote, the Planning Commission shall be deemed to have made a recommendation of disapproval.

7. Action by the Governing Body. If the CUP application is forwarded to the Governing Body for one of the reasons stated in Sec. V-E.6 above, the Governing Body shall consider the application(s) and may, in its discretion, hold a public hearing. The Governing Body’s action on the application(s) shall be the same as set forth in Sec. V-C.7. Upon final action, the CUP may be approved, approved with conditions or modifications, or denied by the Governing Body.

8. Review Criteria. The criteria for review of a proposed CUP are as set out in Sec. V-C.8. Not all of the criteria must be given equal consideration by the Planning Commission or by the Governing Body in reaching a decision.

10. Appeals by aggrieved persons. Appeals from the action of the Planning Commission on an application for CUP approval may be taken to the Governing Body by filing an appeal with the Planning Administrator within 14 days of the conclusion of the Planning Commission hearing pursuant to the publication notice. The Planning Administrator shall refer this matter to the Governing Body for final action and shall notify the applicant and all appellants of the date on which this matter is scheduled for review by the Governing Body. The Governing Body shall act to approve, approve with conditions or modifications, or deny the original application.

11. Successive applications. In the event that the Governing Body, on appeal, denies an application for Community Unit Plan approval, or the applicant withdraws his or her application after a public hearing by the Planning Commission, a similar application shall not be refiled for one year from the latest advertised public hearing date on said application. The Planning Commission may permit a refiling of said application after six months of the latest advertised public hearing date when it determines that significant physical, economic or land use changes have taken place within the immediate vicinity, or a significant zoning regulation text change has been adopted, or when the application is significantly different than the original request. The applicant shall submit a statement in detail setting out those changes that he or she deems significant and upon which he or she relies for refiling the original application.

12. Appeals of final action. The Governing Body’s decision on a CUP application shall be the final local action. Appeals of such final local action shall be taken to the district court in and for the Eighteenth Judicial District of the State of Kansas.

13. Amendments to CUPs. Approved Community Unit Plans, whether approved before or after the effective date of this Code, may be amended in whole or in part by following the same procedures as required for consideration and approval of an original CUP application except as modified in this paragraph. The property owner(s) of a parcel (as delineated on the CUP site plan) in an approved CUP may file to amend their parcel of the CUP without the requirement that owners of other parcels in the CUP join in the application. The property owner(s) of a portion of a parcel in an approved CUP may file to amend that parcel of the CUP, as it relates to their property only, without the requirement that the other owners of that parcel join in the application. Protest rights are as specified in Sec. V-E.10 above. When the Planning Commission action on a request to amend only a portion of a CUP parcel is appealed to the Governing Body by one of the non-applicant owners of that parcel, the Governing Body shall then consider the application and may, in its discretion, hold a public hearing. The Governing Body may approve, approve with conditions or modifications, or deny the application but any approval to amend only a portion of a CUP parcel, for which an appeal is filed, shall require an affirmative vote of at least three-fourths of all the members of the Governing Body. The Governing Body may approve, approve with conditions or modifications, or deny the application but any approval to amend only a portion of a CUP parcel, for which an appeal is filed, shall require an affirmative vote of at least three-fourths of all the members of the Governing Body.

14. Adjustments to CUPs. Approved Community Unit Plans, whether approved before or after the effective date of this Code, may be adjusted by application of all owners within the parcel being adjusted. The Planning Administrator may approve minor adjustments to approved CUPs, unless finding that the proposed development would have one or more of the negative impacts stated in Sec. V-I.6, but in ¬no event shall the Planning Administrator approve an adjustment that allows any of the following:

a. More than a five-foot or ten percent increase in building height, whichever is greater;

b. More than a ten percent increase in floor area or building coverage or in residential unit density when calculated on a total, aggregate project basis;

c. A change in use to a use that is more “intensive” (See Sec. II-B.6.i) than the use approved as part of the CUP.

When an application for CUP adjustment has been denied or when such application has been approved with conditions or modifications that are unacceptable to the applicant, the applicant may file an amendment to the CUP pursuant to Sec. V-E.12 and the filing fee for the adjustment shall be applied toward the filing fee for the amendment.

15. Interpretations of CUPs. The Planning Administrator shall have authority to make written interpretations of any provisions of approved CUPs in the manner set forth in Sec. V-H. These interpretations may include interpretations permitting uses other than those listed if they are similar to and no more intensive than uses listed on the CUP. Where the CUP provisions involve codes other than this Zoning Code, such as but not limited to the Sign Code and the Landscape Code, the Planning Administrator shall also have authority to make written interpretations of those provisions in the same manner.

F. APPEALS

This section sets out the required review procedures for Appeals.

1. Authority. The Board of Zoning Appeals is authorized to hear and decide appeals where it is alleged there is an error in any order, requirement, decision, or determination by the administering or enforcing officer in administering or enforcing any provisions of this Code or any other development code, including but not limited to the Sign Code and the Landscape Code, wherein the appeal authority has been granted to the Board of Zoning Appeals.

2. Initiation. An appeal may be filed by any person aggrieved, or by any officer of the city or county or any governmental agency or body affected by any decision of any officer administering the provisions of this Code or the provisions of any other development code wherein the appeal authority has been granted to the Board of Zoning Appeals.

3. Application. Any appeal shall be taken to the appropriate Board of Zoning Appeals. A complete application for an Appeal shall be submitted to the Secretary of the Board of Zoning Appeals in a form established by the Secretary, along with a nonrefundable fee that has been established by the appropriate Governing Body to defray the cost of processing the application. No application shall be processed until the application is complete and the required fee has been paid. Applications for appeals from the decisions of the administering officer shall be made within the time limit specified by the rules of the appropriate Board of Zoning Appeals.

4. Establishment of hearing date, publication of notice. Promptly upon determining that an application is complete, the Secretary shall schedule a public hearing before the Board of Zoning Appeals. Notice of the time, place and subject of such hearing shall be published once in the official newspaper at least 20 days prior to the date fixed for hearing. Notices shall be mailed to all applicants and to such additional persons as shall be specified by the Board of Zoning Appeals policy and as indicated on the application forms. If the applicant is not the owner of the property that is the subject of the appeal, then the property owner(s) shall also be sent a copy of the notice. The public hearing before the Board of Zoning Appeals shall be scheduled for the next meeting date for which it is practicable to give at least 20 days’ notice.

5. Action by Board of Zoning Appeals. As soon as possible following the close of the public hearing, but in no event later than 40 days from the hearing date (unless the applicant consents to a longer time period), the Board of Zoning Appeals shall make a decision on the Appeals request and report its findings and decision to the Planning Administrator or other administering officer. In exercising its powers, the Board may reverse or affirm, wholly or partly, or may modify the order, requirement, decision or determination, and to that end shall have all the powers of the officer from whom the appeal is taken, may attach appropriate conditions, and may issue or direct the issuance of a permit. Upon reporting its decision, the Board’s decision shall become final. The Board of Zoning Appeals’ Secretary shall thereafter transmit a copy to the applicant.

6. Appeals from action of Board of Zoning Appeals. Any person, official or governmental agency dissatisfied with the decision of the Board of Zoning Appeals may bring an action in the district court of the Eighteenth Judicial District to determine the reasonableness of such decision. Such appeal shall be filed within 30 days of the final decision of the Board of Zoning Appeals.

G. VARIANCES

Variances are deviations from specific regulations in this Code, which would not be contrary to the public interest when, due to special conditions or circumstances, the literal enforcement of specific regulations results in unnecessary hardship. This section sets out the required review procedures for Variances.

1. Authority. An application for a Variance shall require approval of the Board of Zoning Appeals.

2. Initiation. An application for a Variance may be proposed by the owner of the subject property.

3. Application. A complete application for a Variance shall be submitted to the Secretary of the Board of Zoning Appeals in a form established by the Secretary, along with a nonrefundable fee that has been established by the Governing Body to defray the cost of processing the application. No application shall be processed until the application is complete and the required fee has been paid.

4. Establishment of hearing date, publication of notice. Promptly upon determining that an application is complete, the Secretary shall schedule a public hearing before the Board of Zoning Appeals. Notice of the time, place and subject of such hearing shall be published once in the official newspaper at least 20 days prior to the date fixed for hearing. Notice shall be mailed to all applicants and to such additional persons as shall be specified by Board of Zoning Appeals policy and as indicated on the application forms. The public hearing before the Board of Zoning Appeals shall be scheduled for the next meeting date for which it is practicable to give at least 20 days’ notice.

6. Variance criteria. In considering a variance request, the spirit of these regulations shall be observed, public safety and welfare shall be secured and substantial justice shall be done. Furthermore, no variance shall be granted unless all the following five conditions have been met:

a. That the variance requested arises from condition that is unique to the property in question and that is not ordinarily found in the same zone or district; and is not created by an action of the property owner or the applicant;

b. That the granting of the permit for the variance will not adversely affect the rights of adjacent property owners or residents;

c. That the strict application of the provisions of this Code from which a variance is requested will constitute unnecessary hardship upon the property owner represented in the application;

d. That the variance desired will not adversely affect the public health, safety, morals, order, convenience, prosperity, the general welfare, or the harmonious development of the City or County, as the case may be; and

e. That granting the variance desired will not be opposed to the general spirit and intent of this Code.

7. Appeals from action of Board of Zoning Appeals. Any person, official or governmental agency dissatisfied with the decision of Board of Zoning Appeals may bring an action in the district court of the Eighteenth Judicial District to determine the reasonableness of such decision. Such appeal shall be filed within 30 days of the final decision of the Board of Zoning Appeals.

H. WRITTEN INTERPRETATIONS OF ZONING CODE

This section sets out the procedures for interpreting the text of this Zoning Code as well as provisions of approved CUPs and PUDs administered under this Code.

1. Authority. The Planning Administrator shall have authority to make all written interpretations.

2. Application. A complete application for an Interpretation Request shall be submitted to the Planning Administrator in a form established by the Planning Administrator, along with a nonrefundable fee that has been established by the Governing Body to defray the cost of processing the application. No application shall be processed until the application is complete and the required fee has been paid.

3. Action by the Planning Administrator. Within fifteen business days after a request for interpretation has been submitted, the Planning Administrator shall: (1) consult with other City staff; (2) review and evaluate the request in light of the text of this Code, the Official Zoning Map, the Comprehensive Plan and any other relevant documents; and (3) render an opinion.

4. Form. The interpretation shall be provided to the applicant in writing and shall be filed in the official record of interpretations.

5. Official record. The Planning Administrator shall maintain an official record of interpretations. The record of interpretations shall be available for public inspection in the office of the Planning Administrator during normal business hours.

6. Appeal of Planning Administrator’s decision. Appeals of the Planning Administrator’s written interpretation may be taken to the Board of Zoning Appeals by filing an appeal with the Board of Zoning Appeals’ Secretary within the time limit specified by the rules of the appropriate Board of Zoning Appeals. The Board of Zoning Appeals shall grant to the Planning Administrator’s interpretation a presumption of correctness, placing the burden of persuasion of error on the appellant. In exercising the appeal power, the Board of Zoning Appeals may reverse or affirm wholly or partly or may modify the interpretation of the Planning Administrator. If the Board of Zoning Appeals determines that it is necessary to obtain additional evidence in order to resolve the matter, it shall remand the appeal to the Planning Administrator with directions to obtain such evidence and to reconsider the decision in light of such evidence.

7. Appeal of BZA’s decision. Any person, official or governmental agency dissatisfied with the decision of the Board of Zoning Appeals may bring an action in the district court of the Eighteenth Judicial District to determine the reasonableness of such decision. Such appeal shall be filed within 30 days of the final decision of the Board of Zoning Appeals.

I. ZONING ADJUSTMENTS

The intent and purpose of this section is to allow for administrative action on requests for minor modifications or adjustments to certain provisions of this Code.

1. Authority. The Planning Administrator shall have the authority to approve applications for Zoning Adjustments.

2. Types of adjustments allowed. Zoning Adjustments shall be limited to the following:

a. Reducing minimum front, side, and rear setbacks (required by the property development standards of the zoning district) by up to 20 percent, except that a side or rear setback adjacent to a golf course, open space or reserve or in which the area of the required yard to be adjusted does not exceed 300 square feet may be reduced by up to 50 percent.

b. Reducing minimum interior side setback for a principal structure to three feet when all parts of principal structure that are extending into the interior side yard setback are located more than one-half the depth of the lot behind the front property line, and when the addition does not obstruct or eliminate the required off-street parking. Extended portions of the principal structure shall not be more than 60 percent of the maximum height allowed by the property development standards of the district.

c. Reducing minimum rear setback for a principal structure to five feet when all parts of the principal structure that are extending into the rear yard setback are located more than one-half the depth of the lot behind the front property line, and when the addition does not obstruct or eliminate the required off-street parking. Extended portions of the principal structure shall not occupy more than one-half of any required rear yard nor be more than 60 percent of the maximum height allowed by the property development standards of the district.

d. Reducing or waiving the required compatibility setback.

e. Reducing or waiving the required compatibility height standard.

f. Increasing maximum height permitted by the property development standards of the zoning district by up to 20 percent.

g. Increasing maximum height for energy generating structures provided the energy generating structure would not be closer to an adjacent property line than twice the height of the structure, nor be located within 200 feet of any existing residential structure on an adjacent property, and would not exceed a height of 100 feet to the tip of the motor blades.

h. Increasing maximum lot coverage by up to ten percent.

i. Reducing lot size, lot width, loading area and parking requirements by up to ten percent, except that parking requirements for manufacturing, warehousing, wholesale or business services, large item community retail, all remodeling/expansion projects, and all redevelopment of existing sites with new construction may be reduced by up to 25 percent.

j. Increasing the maximum projection of structural elements into front, rear or side setbacks by up to 20 percent, provided there is no reduction in the corresponding setback requirement.

k. Changing the location of required screening in relation to alleys.

l. Permitting parking in residential districts to be located within a required front yard or street side yard, but in no case closer to a front or street side property line than eight feet.

m. Reducing or waiving the required screening specified in Sec. IV-B.3.a of this Code when the building is located adjacent to a golf course, public or private park, or open space reserve area of a homeowners’ association and the building is architecturally designed to utilize the views of the adjacent property; or when existing topography or vegetation provide a natural screen; or when the adjacent residential property is developed with an institutional, major utility, or multi-family use and the location of improvements on one or both properties provides adequate screening.

n. Permitting an accessory structure to be placed in front of the principle structure on less than five acres of land as specified in Sec. III-D.7.e(2).

3. Initiation. An application for a Zoning Adjustment may be proposed by the owner of the subject property.

4. Application. A complete application for a Zoning Adjustment shall be submitted to the Planning Administrator in a form established by the Administrator, along with a nonrefundable fee that has been established by the Governing Body to defray the cost of processing the application. No application shall be processed until the application is complete and the required fee has been paid.

5. Action by the Planning Administrator. The Planning Administrator shall approve the application for Zoning Adjustment unless the request would violate the provisions of Secs. V-I.2 or V-I.6. The Planning Administrator may impose special conditions of approval on the Zoning Adjustment, including but not limited to time limitations, access limitations, screening and landscaping, and other controls to prevent damage to adjacent properties or safeguard public interests.

6. Zoning Adjustment criteria. The Planning Administrator shall not approve a Zoning Adjustment if the Planning Administrator finds that the proposed development:

a. Would adversely affect the safety and convenience of vehicular and pedestrian circulation in the vicinity of the subject tract, including traffic reasonably expected to be generated by the proposed use and other uses in the area given the existing zoning, existing land uses and proposed land uses in the area;

b. Creates more adverse impacts on existing uses in surrounding areas than that reasonably might result from development of the site in strict compliance with the adjusted standard;

c. Would not be compatible with existing or permitted uses on abutting sites, in terms of adjusted building height, setbacks and open spaces, bulk and scale, landscaping, parking or circulation features;

d. Will be detrimental to the public health, safety or welfare or materially injurious to properties or improvements in the vicinity for reasons specifically articulated by the Planning Administrator.

The applicant shall have the burden of demonstrating that the proposal meets the applicable review criteria.

7. Notice of decision. The Planning Administrator shall, within four business days of making a decision, give notice of such decision to the applicant all members of the Planning Commission, and to any other person reasonably requesting such notice. The Planning Administrator’s decision shall be considered approved as submitted if the Planning Administrator has not responded within fifteen business days of the date of transmission, unless the review period is extended by action of the applicant.

8. Appeal of Planning Administrator’s decision. When an application for Zoning Adjustment has been denied or when such application has been approved with conditions or modifications that are unacceptable to the applicant, the applicant may file a Variance with the Board of Zoning Appeals pursuant to Sec. V-G and the filing fee for the Zoning Adjustment shall be applied toward the filing fee for the Variance.

9. Appeal of BZA’s decision. Any person, official or governmental agency dissatisfied with the decision of the Board of Zoning Appeals may bring an action in the district court of the Eighteenth Judicial District to determine the reasonableness of such decision. Such appeal shall be filed within 30 days of the final decision of the Board of Zoning Appeals.

J. BUILDING PERMITS AND CERTIFICATES OF OCCUPANCY

1. When required. A building permit and a certificate of occupancy shall be required for any of the following, except for agricultural purposes:

a. Construction, occupancy and use of a building or structure hereafter erected or structurally altered;

b. Change in use of an existing building to a different use;

c. Change in the use of vacant land to a use requiring a building permit;

d. Any non-farm storage or other use lasting more than six months of a previously-exempt agricultural building; or

e. Any change of a nonconforming use.

No construction or change of use as outlined above shall take place until a certificate of occupancy therefore shall have been issued by the Planning Administrator or other person designated by the Governing Body to exercise such duties.

2. Applications. Written applications for a building permit or certificate of occupancy shall be made to the Planning Administrator or other designated official on forms provided by that official. The application shall include such information as the designated official may reasonably require, but shall at least include:

a. The size and location of the lot;

b. The size and location of the buildings and structures proposed or existing on the lot;

c. The dimensions of all yards and open spaces; and

d. Sufficient grades and elevations to establish the proper placement of buildings, adequate sewage disposal systems, and the proper drainage of property.

3. Requirements for issuance. No permit shall be issued for any building, structure, or construction unless the proposed building or structure when built and the land on which it is located will conform in every respect with all the provisions of this Code, the Building Code, and with other applicable ordinances or regulations of the City of Maize or Sedgwick County. Once the Planning Administrator determines that the structure, building or use conforms to these regulations and to other applicable regulations, the permit or certificate shall be promptly issued.

4. Separate permit required. There shall be a separate permit for each building or structure to be constructed, erected, or altered, except accessory buildings when construction is simultaneous.

5. Expiration of permits. Any building permit or certificate of occupancy issued hereunder shall become null and void if the building, activity, construction, or occupancy authorized by such permit is not commenced within 180 days from the date of such permit and diligently executed, or if the building, activity, construction or occupancy is suspended or abandoned for a period of 180 days. If a permit or certificate expires under the terms of this provision, no work or occupancy may occur without a new permit.

6. Revocation of building permit. A permit may be revoked by the building official at any time prior to the completion of the building or structure for which the same was issued in accordance with Article VIII of this Code.

7. Certificate of occupancy. No change in the character of use of land or of a building shall be made nor shall any new or existing building or structure be hereafter occupied or used until a certificate of occupancy is issued by the building official certifying that such building or use complies with all regulations of this Code, Building Code and all other ordinances and regulations applicable thereto. For purposes of this section, a “change in the character of use” shall mean a change from one use category (or line) on the Use Regulations Schedule of this Code.

8. Evidence of compliance. No certificate of occupancy shall be issued unless the Planning Administrator has determined that the proposed use will be in conformance with this Code. The Planning Administrator may submit the question of such conformance to the Planning Commission for review in any case in which the Planning Administrator does not believe that the issue of conformance is clear. In case of such a referral, the Planning Administrator shall give the applicant at least five days’ notice of the review by the Planning Commission, which review shall occur at the next regular meeting of the Commission for which such notice can be given. Evidence of compliance must be provided to the Planning Administrator by the applicant.

9. Revocation of certificates of occupancy. A certificate of occupancy may be revoked by the building official upon evidence of noncompliance with this Code or with the applicable building codes.

10. Performance guarantee. In the City of Maize, when extenuating circumstances not under the control of the owner occur, the owner may request that a temporary occupancy permit be issued. Such circumstances may include, but not be limited to, extreme weather conditions preventing completion of on-site improvements, delay of installation or incomplete public improvements that could possibly cause damage or removal of on-site improvements, or other similar circumstances that could be deemed to interfere with the completion of all required improvements. A request for a temporary occupancy permit shall be accompanied by a performance guarantee and a schedule for completion of all required improvements to the site. A written grant of the right of entry on the premises by the City or its designee for the purpose of completing the improvements shall be executed by the owner at the time of and in conjunction with the filing of the performance guarantee. The performance guarantee may consist of a corporate surety bond, a bank letter of credit, cashier’s check, escrow account or other like security in an amount to be fixed by the Planning Administrator. The amount of such guarantee or security shall be based upon the estimated cost of improvements to be guaranteed, as evidenced by bona fide bids or contracts, and may include contingency factors for inflation and cost overruns in an amount equal to 25 percent more than the estimated cost. The guarantee, if in a form other than cash or its equivalent, shall be subject to the approval of the Maize City Attorney and conditioned upon the actual completion of such work within the specified time period. If the required improvements shall not have been installed in accordance with the performance guarantee, the obligator and surety, if any, shall be liable thereon to the City for the cost of the improvements not installed. In addition to all equitable remedies to enforce such guarantee, the proceeds of the security or guarantee may be claimed and used by the City to secure completion of the improvements.

K. AMENDMENTS TO AREA OF INFLUENCE BOUNDARIES

1. Initiation of amendment request. Proposed changes to the boundaries of the areas of influence may be initiated through application filed with the Planning Director of the Wichita-Sedgwick County Metropolitan Area Planning Department (MAPD) or by the Maize City Planning Commission, by the Wichita-Sedgwick County Metropolitan Area Planning Commission, or by the Board of Sedgwick County Commissioners.

2. Planning Commission hearing. The MAPD Planning Director will establish a time and date for a hearing before the Metropolitan Area Planning Commission and will notify the mayor and planning commission of any affected city, the Metropolitan Area Planning Commission and the Board of County Commissioners of the date, time and place of said hearing. After consideration of the evidence and arguments presented at the hearing, the Metropolitan Area Planning Commission shall recommend approval, approval with conditions or modifications, or disapproval of the proposed change.

3. Board of County Commissioners’ hearing. The MAPD Planning Director shall forward the Metropolitan Area Planning Commission’s recommendation to the Board of County Commissioners. The Board of County Commissioners may accept, modify or reject the recommendation of the MAPD. The action of the Board of County Commissioners on any proposed change to an area of influence boundary shall be final.