Article 8. Home Occupations, Non-Conforming Uses, Temporary Zoning and Planned Unit Development

18.8.1.     Home occupations.

HOME OCCUPATION- A business, profession, occupation, trade, or hobby conducted by a person in a dwelling unit or accessory structure, for financial income or support equal to or greater than $2500 per year. Home Occupations are always accessory to the use of a dwelling unit as a residence.

PURPOSE AND SCOPE This section is intended to permit the establishment of certain incidental and accessory Home Occupations in residential areas under conditions that will ensure their compatibility with the character of the residential district and subject neighborhood. In order for a home occupation to be lawful, it must comply with Chapter 3 of the City Code, and all standards of this section. A lawful home occupation shall be considered an accessory use and shall remain subordinate to the residential use. These regulations recognize that many types of work can be done in a home with little or no impact upon the surrounding neighborhood.

Authorization Specific to Home Occupations. Any person using a dwelling unit in any zoning district for a Home Occupation is required to have approval of the Planning Commission through the conditional use process unless otherwise specified in this section. Beyond requirements of this section, maintaining all other applicable State and local permits associated with a business or permitted use, shall be standard terms of all Home Occupation authorized within the City.

Exempted: Home Occupations NOT required to register with the City:

No impact home occupations. A home occupation existing within a dwelling that (1) complies with all of the use limitations for the zoning district in which it is located and (2) does not materially change the existing noise, traffic, odor, outdoor external storage or external lighting requirements of the neighborhood in which it operates is not required to be registered with the City. A list of examples of no impact home occupations is included in section 8.03 of this article. The list in section 8.03 is not all –inclusive but intended to provide guidance regarding what is acceptable. Other local, State and federal health and safety regulations may apply depending on the specific facts of the business in question, and be enforced by the City as required.

Hobby generating less than $2500 per year. A hobby is defined as an activity by the occupant of a dwelling purely for personal enjoyment, amusement or recreation, and compliant with all City ordinances, not garnering more than $2500 per year in financial income or support. All hobby activities generating more than $2500 per year in financial income or support shall be considered home occupations and must comply with this regulation.

Hobby automotive repairs. Regardless of financial income amounts generated, all home automotive care hobby activities shall be limited to occupant's vehicles, occupant’s immediate family’s vehicles, and occasional non-occupant repairs. Non occupant repairs occurring two or less times a calendar year, shall be presumed to be occasional. All automotive care related hobby activities generating more than $2500 per year in financial income or support shall be considered home occupations and must comply with this regulation.

Exempted Generally. Door to door peddlers, vendors operating within the City pursuant to a valid temporary use or administrative permit issued by the City are generally exempted. Tax-exempt charitable organizations are generally exempted from the requirement to register as home occupations. Temporary and special event activities such as garage sales, bake sales, lemonade stands, or temporary lawn care operations are generally exempted from the requirement to register as home occupations. Other local, state, and federal health and safety regulations including -- Article 3 of The City of Bel Aire Code-- may apply to the exempted activities described within this paragraph.

Home Occupations REQUIRED to register with the City:

A home occupation within a dwelling that (1) complies with all of the use limitations for the district in which it is located and (2) MINIMALLY changes the existing noise, traffic, odor, outdoor external storage or external lighting requirements of the neighborhood as determined by the Zoning Administrator is required to be registered with the City.

Minimal impact for registration purposes shall mean a permitted business with actual or anticipated:

Business traffic to or from the residence in excess of five (5) vehicles per day,

Requiring external storage used in the home occupation,

Businesses having one (1) or more business related signs displayed and visible to the outside,

Business having more than two (2) on site employees other than a members of the immediate family permanently occupying such residence.

Business raising certain public health, public safety, or public welfare concerns determined to be minimal by the Police Chief or City Zoning Administrator.

A list of examples of MINIMAL impact home occupations is included in section 8.03 of this article. The list in section 8.03 is not all –inclusive but intended to provide guidance regarding what is acceptable. Other local, State and federal health and safety regulations may apply and be enforced by the City as required.

Registration Requirements: Article 3 of the City Code requires persons operating an allowable home occupation that is described in 8.01 (C) and not exempt by 8.01 (B) of this Article to register that home occupation annually and pay to the City Clerk or his or her designee a permit fee for a Business Registration and Permit to Operate certificate. Application requirements for the Business Registration and Permit to Operate certificate are specified in Chapter 3 of the City Code. The registration fee for Business Registration and Permit to Operate certificate shall be set forth in the City fee schedule. Additional information may be required as necessary to enable the Clerk and Zoning Administrator to determine whether such home occupation is in conformance with local ordinances regulating home occupations.

Home Occupations REQUIRED TO HAVE A CONDITIONAL USE PERMIT: Persons operating a home occupation that is not exempt by sections 8.01(B), and exceeds the impact described in 8.01 (C) or that the City Zoning Administrator determines may create a greater public health or safety concerns for neighborhood residents of the City shall be required to obtain a conditional use permit for that home occupation. The process for obtaining a conditional use permit is found in section 5.03 of this Zoning Regulation.

Requesting Review by Planning Commission. Were the City Zoning Administrator determines an applicant shall be required to obtain a conditional use permit, before registering, that applicant may request the planning commission review that determination. If a majority of the planning commission determines that home occupation should only be required to register, the Planning Commission’s determination shall be final.

Conditional Use Permit Home Occupation Registration requirements: Upon approval of a condition use permit, Article 3 of the City Code requires persons approved to operate a home occupation to register that home occupation annually and pay to the City Clerk or his or her designee a permit fee for a Business Registration and Permit to Operate certificate. Application requirements for the Business Registration and Permit to Operate certificate are specified in Chapter 3 of the City Code. The registration fee for Business Registration and Permit to Operate certificate shall be set forth in the City fee schedule. Additional information may be required as necessary to enable the Clerk and Zoning Administrator to determine whether such home occupation is in conformance with local ordinances regulating home occupations.

18.8.2.     General standards for all permitted home occupations within the city of Bel Aire.

The following standards shall apply to all Home Occupations unless specifically modified by residential district standards:

Hazardous substances are prohibited, except at the, “consumer commodity” level, as that term is defined in 49 C.F.R. Sec. 171.8.

There shall be no outside storage or display of goods or equipment or materials used in the home occupation.

Upon approval of the Zoning Administrator, one non-animated, non-illuminated, accessory identification sign of no more than 2 square feet in area shall be permitted, as approved in writing by the Zoning Administrator. All signs must be in accordance with the Sign Code of the City of Bel Aire.

Zoning Code authorization of a Home Occupation shall in no way be construed to override any restrictive covenant(s) of record, (i.e., Homeowners Association Covenants).

No more than two (2) vehicles which advertise or assist in operation of the business shall be legally parked in the front setback at the Home Occupation at one time.

There shall be no overnight parking of vehicles rated over one (1) ton in the front setback.

No equipment or process shall be used that creates undue noise, vibration, electrical interference, smoke or particulate matter emissions or odors that are detectable to the normal senses off the lot as determined by the Zoning Administrator. In cases of electrical interference, no equipment or process shall be used which creates a visual effect or an audible interference off the premises in any radio or television receiver or transmitter or causes fluctuation in power voltage.

18.8.3.     Home occupations permitting process.

Permitted home occupations may include, but are not limited to the following list of occupations:

This list is not all inclusive but intended to provide guidance regarding what is acceptable.

 

*Where the City Zoning Administrator determines an applicant shall be required to obtain a conditional use permit, before registering, that applicant may request the planning commission review that determination. If a majority of the planning commission determines that home occupation should only be required to register, the Planning Commission’s determination shall be final.

18.8.4.     Nonconforming uses.

Purpose, Policy and Applicability

Definition. Zoning nonconformities are those uses, structures, or lots that came into being lawfully but that no longer conform to one or more requirements of these Regulations.

Policy. It is the general policy of the City to allow uses, structures or lots that came into existence legally and in conformance with then-applicable zoning requirements but that do not conform to all of the applicable requirements of this currently adopted Code to continue to exist and be put to productive use, but to bring as many aspects of such use into conformance with the current Code as is reasonably practicable, all subject to the limitations of this section. The limitations of this section are intended to recognize the interests of the property owner in continuing to use the property but to control the expansion of the nonconformity and to control re-establishment of abandoned uses and limit re-establishment of buildings and structures that have been substantially destroyed.

No nonconformities created by adoption of these Regulations. No use of a building, structure or property that complied with the zoning ordinance or zoning resolution in effect prior to the effective date of these Regulations shall become or be deemed to have become nonconforming or noncomplying due to adoption of these Regulations. Any use of a building, structure or property and any building, structure or property that complied with the zoning ordinance or zoning resolution in effect prior to the effective date of these Regulations may be rebuilt, repaired or otherwise re-established to the extent that it existed prior to the effective date of these Regulations.

Zoning Administrator Discretion/Appeals. Whenever these Regulations shall refer to a percentage of change, lot size, use, etc., the final determination of whether a proposal meets or exceeds such percentage shall be a determination of the Zoning Administrator. Appeals of this, or any, determination of the Zoning Administrator in association with nonconformities shall be to the Board of Zoning Appeals.

Definitions. Unless otherwise specifically provided or unless clearly required by the context, the following words and phrases shall have the meaning indicated when used in association with issues of nonconforming use, lot, or structure.

Cost. The total cost of alteration or repair shall mean the fair market value of the materials, services and labor necessary to accomplish such renovation, repair or restoration. No person may seek to avoid the intent of this Article by doing such work incrementally.

Dimensional Nonconformity. A nonconforming situation that occurs when the height, size or minimum floor area of a structure, or the relationship between an existing building or buildings and the other buildings or lot lines, does not conform to the regulations applicable to the zoning district in which the property is located.

Effective Date of These Regulations. Whenever this Article refers to the effective date of these Regulations, the reference shall be deemed to include the effective date of any amendments to these Regulations if the amendment, rather than these Regulations (as originally adopted), creates a nonconforming situation.

Nonconforming Lot. A platted lot existing on the effective date of these Regulations that does not meet the minimum width, depth and area requirement of the zoning district in which the lot is located and is not subject to a prior variance or Exception.

Nonconforming Structure. A situation that occurs when, on the effective date of these Regulations, an existing structure or improvement, i.e. parking and landscaping, or the use of an existing structure or improvement no longer conforms to one (1) or more of the regulations applicable to the zoning district in which the structure or improvement is located.

Nonconforming Project. Any structure, development or undertaking that is incomplete on the effective date of these Regulations, and would be inconsistent with one (1) or more of the regulations applicable to the zoning district in which it is located if completed as proposed or planned.

Nonconforming Sign. A sign that, on the effective date of these Regulations, does not conform to one (1) or more of the regulations set forth in the City’s Sign Code.

Nonconforming Use. A situation that occurs when property is used legally for a purpose and then, in any manner, prohibited or made unlawful by the zoning regulations subsequently made applicable to the zoning district in which the property is located. The term also refers to the activity that constitutes the use made of the property.

Nonconforming Site Improvement. A situation that occurs when, on the effective date of these Regulations, an existing site improvement on a lot, including but not limited to parking areas, storm drainage facilities, sidewalks and landscaping, no longer conforms to one (1) or more of the regulations of these Regulations applicable to the property.

Nonconforming Situation. A situation that occurs when, on the effective date of these Regulations, an existing lot, structure or improvement, i.e. parking and landscaping, or the use of an existing lot, structure or improvement no longer conforms to one (1) or more of the regulations applicable to the zoning district in which the lot, structure or improvement is located.

Structural Value. The present-day cost of replacing the structure or improvement.

Nonconforming Uses.

Maintenance and repair. Any structure which is part of a nonconforming use protected under this section may be repaired or altered on the same terms set forth for nonconforming structures, under this section.

Enlargement and expansion within a building and enlargement and expansion of a building. A nonconforming use may be expanded within the floor area of an existing, conforming structure or within an expanded structure, subject to the limitations listed herein. In any residential district, such expansion shall be permitted into an area equal to the original floor area of the nonconforming use, when the expansion:

Does not increase the number of dwelling units;

Includes plans for all off-street parking and loading required to serve the expansion area;

If greater than 50 percent of the original floor area such nonconforming use must make application to the Board of Zoning Appeals, and if such use is found by the Board of Zoning Appeals to be compatible with the neighborhood and not detrimental to the community, as determined by the effect of the expansion on traffic, value of adjacent and nearby properties, and the availability of adequate public facilities and services.

Expansion of outdoor nonconforming uses. A nonconforming use of premises for which the principal use is not enclosed within a building, such as a salvage yard or a motor vehicle sales lot, may not be expanded except in conformity with the requirements of these Regulations.

Change in use. A nonconforming use may be changed to a new use when approved by the BZA, provided that the new use shall be of the same general character or of a character less intensive (and thus more closely conforming) than the existing, nonconforming use. The initial determination of whether a proposed use is a conforming use or is less intense shall be made by the City Zoning Administrator, or his/her designee, with an appeal to the Board of Zoning Appeals. In either case, the determination shall be based on the use hierarchy established by the Zoning Regulations. A nonconforming use, if changed to a conforming use or less intensive nonconforming use, may not thereafter be changed back to a less conforming use than that to which it was changed, or a nonconforming use.

Nonconforming Structures.

Maintenance and repair. Remodeling of a nonconforming structure within the existing building footprint shall be permitted without a variance. Any nonconforming structure damaged to the extent of 50 percent or less of its fair market value by fire, wind, tornado, earthquake, or other natural disaster, may be rebuilt, provided such rebuilding does not increase the intensity of use as determined by the number of dwelling units (for residences) or floor areas or ground coverage (for nonresidential uses). The structure shall not be rebuilt closer to the property line than the original structure or the applicable setback lines, whichever is closer. Nonconforming structures damaged 50% or less of their fair market value by flooding may be rebuilt as set forth in this section, provided such reconstruction shall conform to all requirements of the adopted building code related to construction in flood hazard areas. Any building so damaged more than 50 percent of its value may not be rebuilt, repaired, or used unless it is made to conform to all regulations for buildings in the district in which it is located, provided that such restoration as may be made is to the fullest extent possible in conformance with development standards.

Enlargement and expansion. Any expansion of the nonconforming structure that increases the degree of nonconformance is prohibited. Other expansions of the structure shall be permitted and shall not require a variance. The initial determination of whether a proposed expansion increases the degree of nonconformity shall be made by the City Zoning Administrator, or his/her designee, with an appeal to the Board of Zoning Appeals.

Relocation. If a nonconforming structure is relocated within the area to which these Regulations is applicable, it shall be placed only in a location in which it fully conforms with the requirements of these Regulations.

Unsafe structures. Nothing in this section shall be construed to permit the continuing use of a building found to be in violation of basic life safety or health codes of the City and/or County. The right to continue to use a noncomplying structure shall be subject to all applicable housing, building, health and other life safety and health codes of the City and/or County.

Nonconforming Lots. A lot shown on an approved and recorded subdivision plat on the date on which these Regulations became applicable to the lot or a parcel shown on the assessor’s records as a separate parcel on such date may be occupied and used although it may not conform in every respect with the dimensional requirements of these Regulations, subject to the provisions of this section.

Vacant lot. If the lot or parcel was vacant on the date on which these Regulations became applicable to it, then the owner may use the property as permitted by the applicable zoning district, provided that the use shall comply with applicable dimensional requirements of these Regulations to the maximum extent practicable. If the applicable zoning district permits a variety of uses or a variety of intensities of uses and one or more uses or intensities would comply with applicable setback requirements while others would not, then only the uses or intensities that would conform with the applicable setback requirements shall be permitted. Otherwise the owner may seek a variance from such requirements from the Board of Zoning Appeals.

Lot with building or structure. If the lot or parcel contains a building or structure on the date on which these Regulations becomes applicable to it, then the owner may continue the use of that building or structure and may reasonably expand the structure in any way that does not increase the degree of nonconformity. An increase in building size shall not be deemed to increase the degree of nonconformity unless it increases the encroachment on a required setback. Remodeling of a structure within the existing building footprint or expansion in compliance with this section shall not require a variance but shall be reviewed by the City Zoning Administrator, or his/her designee, as though the lot were conforming.

Lot merger. If the lot or parcel is smaller than would otherwise be required by these Regulations and such lot or parcel is at any time on or after the date on which these Regulations became applicable to such lot or parcel under common control with an adjacent lot or parcel, then the two shall be considered merged for purposes of these Regulations and shall in the future be considered together for purposes of determining compliance. If the merged lots or parcels contain sufficient area for the actual or proposed use, then they shall be deemed fully conforming. If the merged lots or parcels together do not contain sufficient area for the actual or proposed use, they shall nonetheless be considered together for purposes of reducing the degree of nonconformity. When a nonconforming lot or parcel shall not again be used as a separate lot or parcel, unless it is subdivided from the lot or parcel with which it has been merged; subdivision shall require full compliance with the requirement of these Regulations and the applicable subdivision regulations.

Other Nonconformities.

Examples of other nonconformities. The types of other nonconformities to which this section applies include but are not limited to: fence height or location; lack of buffers or screening; lack of or inadequate landscaping; lack of or inadequate off- street parking; and other nonconformities not involving the basic design or structural aspects of the building, location of the building on the lot, lot dimensions or land or building use. However, development that is consistent with an approved site plan and to the extent that such plan or conditions imposed thereon directly addresses the specific issue involved in the determination of conformity, a nonconformity other than a nonconforming use, structure or lot, as described above, shall be brought into conformance upon the occurrence of any one of the following:

Any increase on the premises of more than 30 percent floor area or 50 percent value;

For a property in a commercial or industrial zone, any change in use to a more intensive use when a new certificate of occupancy is required.

Waiver by Variance. The requirement that these other nonconformities be brought into conformance shall be subject to variance by the Board of Zoning Appeals where it finds that such conformance would involve an unreasonable hardship.

Policy. Because other nonconformities involve less investment and are more easily corrected than those involving lots, buildings and uses, it is generally the policy of the City to eliminate such other nonconformities as quickly as practicable.

Increase prohibited. The extent of such other nonconformities shall not be increased, with or without a variance.

Nonconformities Created By Public Action. When lot area or setbacks are reduced as a result of conveyance to a federal, state or local government for a public purpose and the remaining area is at least 75 percent of the required minimum standard for the district in which it is located, then that lot shall be deemed to be in compliance with the minimum lot size and setback standards of these Regulations, shall not be deemed nonconforming, and need not resort to the Board of Zoning Appeals for such determination.

Discontinuance.

Nonconforming use. When a nonconforming use has been abandoned, such nonconforming use shall not be renewed. When a building containing a nonconforming use has been destroyed or damaged to an extent exceeding 50 percent of its fair market value, such nonconforming use shall not be renewed and the building shall not be restored in a way that is designed primarily for such use.

Abandonment. A nonconforming use shall be presumed abandoned when any of the following has occurred:

The owner has in writing or by public statement indicated intent to abandon the use;

A less intensive use has replaced the original nonconforming use;

The building or structure has been removed through the applicable procedures for the condemnation of unsafe structures;

The owner has physically changed the building or structure or its permanent equipment in such a way as to indicate clearly a change in use or activity to something other than the nonconforming use; or

When a nonconforming use is discontinued for a consecutive period of one hundred eighty (180) days, or discontinued for any period of time without a present intention of resuming that activity, then the property may thereafter be used only in conformity with these Regulations.

Overcoming presumption of abandonment. A presumption of abandonment based solely on the length of time a land use has remained vacant or inactive may be rebutted upon a showing, to the satisfaction of the Board of Zoning Appeals, that during such period the owner of the land or structure:

Has been maintaining the land and structure in accordance with the current building code and can document a belief that the use was continuing; or

Has been actively and continuously marketing the land or structure for sale or lease; or

Has been engaged in activities that would affirmatively prove that there was not an intent to abandon the nonconforming use.

Determination of Nonconforming Status. In all cases, the property owner shall have the burden of establishing that a nonconforming use or nonconforming structure lawfully exists under these Regulations.

Registration of Nonconformities.

Rights conditional. The recognition by the Zoning Administrator of rights given to those using or owning property involving a Nonconformity under these Regulations are specifically conditioned on the registration of the Nonconformity or exemption with the Zoning Administrator. Nonconformities or exemptions so registered shall be deemed to be lawful Uses under the provisions of these Regulations, to the extent documented on the registration form.

Registration process. Registration shall be required for Nonconformities existing on the effective date of these Regulations, Nonconformities arising because of an amendment to these Regulations, or Nonconformities arising because of a change in jurisdictional boundaries. There shall be no deadline for the registration. The Zoning Administrator shall establish a process for the registration of Nonconformities and shall establish a system for keeping records of the same. The Zoning Administrator shall provide registration forms for this purpose.

Registration determination and appeal. The Zoning Administrator shall verify the qualification of a Use, Structure, or Lot for registration under this section. The Zoning Administrator shall refuse to permit the expansion, continuance, repair, maintenance or other continuation of nonconforming status for a Nonconformity not registered in accordance with this section. An aggrieved party may appeal the Zoning Administrator's registration or denial of registration to the Board of Zoning Appeals.

Evidentiary considerations. In verifying the qualification of a Use, Structure or Lot for registration under this section, the Zoning Administrator shall consider all relevant and material evidence, whether submitted by the applicant, by any other person supporting or opposing the claim of Nonconforming rights, or otherwise available to the Zoning Administrator. Examples of relevant evidence that shall be considered includes, but is not limited to, the following materials that may tend to show the existence of a Use, Structure, or Lot that predates the effective date of the applicable code provision:

photographs, video, or other visual types of evidence that can be verified as predating the effective date of the code provisions involved;

contracts, deeds, or other legal instruments that are dated, whether or not recorded or filed in any public office of recorded;

books, magazine articles, or newspaper clippings that are dated;

tax returns, receipts, or other financial records that are dated;

statements by witnesses, in the form of affidavits, that are made on personal knowledge; and

certificates of occupancy, licenses, or other permits issued by a governmental entity.

Appeals. Requests for appeals of decisions of the Building Inspector or Zoning Administrator, or any designee, in relation to a decision concerning any nonconforming situation as set forth within this Article shall be to the Board of Zoning Appeals.

18.8.5.     Temporary zoning waiver.

Temporary Zoning Waiver. Temporary sales and events taking place pursuant to a permit lawfully issued pursuant to City Municipal Code may allow temporary use of real property located within the City of Bel Aire in a manner not generally permitted within the applicable zoning district.

18.8.6.     Planned unit development.

PUD Planned Unit Development District (“PUD”)

Purpose. The Planned Unit Development (“PUD”) is a special purpose zoning district or zoning overlay upon an underlying zoning district intended to encourage innovative land planning and design and avoid the monotony sometimes associated with large developments by:

reducing or eliminating the inflexibility that sometimes results from strict application of zoning standards that were designed primarily for individual lots;

allowing greater freedom in selecting the means to provide access, light, open space and design amenities;

promoting quality urban design and environmentally sensitive development by allowing development to take advantage of special site characteristics, locations and land uses; and

allowing deviations from certain zoning standards that would otherwise apply when such deviations are not contrary to the general spirit and intent of this Code.

Initiation and Method of Adoption. An application for PUD approval shall be submitted in accordance with Article 5 of this Code.

Uses and Development Standards.

Permitted Uses. Any Use may be permitted within the PUD zoning District, provided that it is consistent with the purposes of this Code and the approved PUD plan.

Development Intensity. The total number of Dwelling Units and level of nonresidential Development allowed within a PUD shall not exceed the level that can be adequately served by public facilities. To provide information on the capacity of Streets and other facilities serving a PUD, the Zoning Administrator may require the applicant to conduct a traffic impact study or other infrastructure capacity analyses to provide information on the Development's expected impacts on existing and planned facilities.

Other zoning standards and regulations. Applicable zoning standards and regulations may be varied or modified as part of the PUD plan approval and rezoning process: Lot Area, Building Height, Setbacks, Open Space, off-street Parking and Loading Space, Sign, Screening, Landscaping and Compatibility Standards.

Permitting. No new or existing building or structure shall be occupied or no change in the character or use of land or of a building shall occur, without a valid certificate of occupancy issued by the City with a signature by the City Administrator, or his/her designee certifying that such building or use is in compliance with all regulations of this ordinance, city codes and ordinances, including structure location and foundation & pad elevations contained in the PUD documents or on the final plat.

Process. No property which has a zoning district classification which requires approval of a PUD may be developed or redeveloped without a preliminary PUD first having been submitted to and approved by the Planning Commission. The Planning Commission shall review the preliminary PUD to determine:

satisfactory quality of design in the individual buildings;

satisfactory quality of design for the site;

appropriateness of the building or buildings to the intended use;

aesthetic appropriateness of the development to its surroundings.

Satisfactory design quality and harmony will involve among other things:

The site is capable of accommodating the building(s), parking areas and drives with appropriate open space.

The plan is consistent with good land planning, good site engineering design principles and good landscape architectural principles.

An appropriate use of quality materials. The harmony and proportion of the overall design.

The architectural style which should be appropriate for the project in question and compatible with the overall character of the neighborhood.

The site of the structure on the property, as compared to the site of other structures in the immediate neighborhood.

The bulk, height and color of the proposed structure as compared to the bulk, height and color of other structures in the immediate neighborhood.

Landscaping shall be required on the site and shall be in keeping with the character or design of the site. Existing trees shall be preserved wherever possible.

Ingress, egress, internal traffic circulation, off-street parking facilities and pedestrian ways shall be so designed as to promote safety and convenience and shall conform to approve City standards.

The plan represents an overall development pattern that is consistent with the Comprehensive Plan, the Official Street Map, and other adopted planning documents and policies.

Project Initiation. Construction may proceed upon the Planned Unit Development when the property is properly platted pursuant to a final PUD plan. The final PUD plan shall be approved by the Governing Body to verity that it complies with the PUD Plan’s Contents and Submission Requirements contained herein and the requirements pursuant to the preliminary PUD plan approval and generally includes the information needed for the platting process and the issuance of a building permit.

Administrative Modification. The following changes are not considered significant changes to the preliminary PUD plan and may be approved by the Zoning Administrator:

An increase in floor area or number of dwelling units not exceeding five (5) percent.

Substitution of landscape materials provided that the new materials are the same general size and type.

Minor changes to elevation, building materials, parking lot design, screening fences or walls, building location, etc., that would improve the site or are needed because of circumstances not foreseen at the time the preliminary site development plan was approved by the City.

PUD Administrative Development Area. The Governing Body may designate a development area as appropriate for administrative PUD plan approval by the City Manager. Such areas may be those existing developments with an established site plan and architectural character, or new developments with an approved preliminary development plan including typical building elevations, materials and colors; a general landscape plan; and an approved landscape buffer where applicable. Administrative PUD plan submission requirements shall also be in conformance with PUD Plans, Contents, and Submission Requirements. Applications not in conformance with such plans and the approved preliminary development plan shall not be approved administratively and shall be forwarded to the Governing Body for consideration upon submission of a complete application.

CUP Community Unit Plan Overlay District (“CUP”)

Purpose. The Community Unit Plan (“CUP”) Overlay District is a form of PUD intended to provide well planned and well organized Developments for Residential Uses of varying densities and for office, commercial, industrial and/or mixed Uses that are held under unified control at the time of initial approval. It is intended to protect the public safety, convenience, health and general welfare through standards and provisions that establish requirements as to Lot coverage, Building Height, Setback and Screening that permit review of the size, shape and location of such facilities with due regard to the tract as a whole so as to ensure the development of facilities with proper ingress and egress, parking, drainage facilities, screening, sign control, environmental control and other requirements and amenities. The character of the Development should be appropriate to the neighborhood and conditions and safeguards should be provided to ensure that the development will minimize any diminution, if any, in value of surrounding property. Two types of CUP regulations are set out in this section: nonresidential and residential. Additionally, a unified Nonresidential and Residential CUP can be developed when approved by the Zoning Administrator in conformance with the spirit and intent of these Regulations.

Nonresidential CUPs. The following nonresidential CUP regulations shall apply to development or construction on Sites with a contiguous area that are held under unified control at the time of initial approval and that are now or hereafter zoned either C-1, C-2, or M-1, or a combination thereof.

Permitted Uses and Structures. The following Uses and Structures may be allowed as part of a nonresidential CUP:

All Permitted and Conditional Uses in the zoning classification in which the Development is proposed, subject to all applicable site development regulations as deemed applicable by the approving authorities.

Uses and Structures that are customarily accessory and clearly incidental and subordinate to permitted Principal Uses and Structures and that do not involve operations or Structures that are incompatible with the District; and

In cases where a nonresidential CUP Development proposes a mixture of nonresidential and residential Uses, the CUP Development plan shall indicate the proposed location and general types of both residential and nonresidential Uses and the method of Screening, Landscaping and Buffering.

Development standards.

Minimum Setback requirements. The grouping of Buildings and Parking Areas shall be designed to protect all residential areas, and screened so as to limit the noise and light emitted therefrom. All projects subject to the CUP standards shall comply with the following minimum standards.

All Main Buildings or Structures shall set back at least 35 feet from all Street Right-of-Way Lines or Alleys.

Where the proposed Development abuts a residential District, all Buildings shall be set back at least 35 feet from such District line.

There shall be a rear Yard, Alley, service drive or combination thereof with a depth of at least 30 feet.

Maximum Lot coverage. Buildings shall not cover more than 40 percent of the land upon which the Development is proposed.

Height regulations. The height standards of the underlying zoning District shall control unless modified heights are specified as part of the CUP Development provisions.

Screening. A Solid Screening Wall with a height of between six and eight feet shall be required to prevent the passage of debris and light and to mitigate adverse visual impacts. The wall shall be constructed of brick, stone, masonry, architectural tile or other similar material (not including wood or woven wire). Screening walls shall be installed in accordance with the following standards:

A Screening Wall shall be required along the property line when a residential district is contiguous to the proposed Development. The wall shall be reduced to three feet in height for that portion that lies between the Side or Front Setback Lines of the Contiguous residential property and the property line Abutting any public street, unless the reduction in height is determined by the Governing Body to be inappropriate (See Figure 4-1);

Along the property line when Adjacent to a residential District and separated by a public way, street or alley if the storage area, service area or rear of the Building face directly such residential District;

When a part of the property on which there is a proposed commercial or industrial Development shall serve as a buffer between adjacent residential Districts and the commercial or industrial Development, then the wall shall be constructed at the boundary between the buffer and said residential District

Residential CUPs. The Owner or Owners of any tract of land permitting residential Uses may submit to the Zoning Administrator a plan for the use and development of all such tracts of land for residential purposes. Such Development plan shall be referred to the Planning Commission for public hearing. The Planning Commission may approve, approve with conditions or modifications, or disapprove the Development plan. If the Development plan is approved, such Development may occur even though the Use of the land and the use and location of the Structures, including the Yards and Open Spaces required by this Code, do not conform in all respects to the regulations contained in other sections of this Code. However, the Development shall conform with the following conditions.

The land within the residential CUP shall be used only for residential purpose, for nonresidential uses permitted in the C-1 District, and customary accessory uses, such as passenger vehicle Parking Areas, Garages, recreation and common areas.

The average Lot Area per Family contained in the Site, exclusive of the area occupied by Streets, shall be not less than the Lot Area per Family required for the underlying zoning district in which the residential CUP is located.

Waivers. When otherwise considering a CUP, the Planning Commission or Governing Body may modify or waive the Setback, including compatibility Setback, Lot coverage, Building Height, Parking and/or Screening requirements in this section and elsewhere in this Code as part of the approval or amendment of a CUP, where the objectives of the Comprehensive Plan and good planning practices are furthered, provided that the Planning Commission or Governing Body must set forth the specific reasons for such modification and an explanation of how such modification or waiver meets the criteria and purpose of this section.