14.1. Purpose
This article establishes the rules for amending these regulations, changing zoning district boundaries, approving conditional uses; and the processes by which such shall be administered.
14.2. Amendments; Conditional & Temporary Uses
There are two types of amendments to these regulations: revisions to the regulations (text, uses, standards, etc.); and changes to zoning district boundaries (rezoning cases). These types of amendments are reviewed and approved according to the same rules and processes used for conditional use applications and temporary use requests.
A. Process
Applications for any of these actions utilize the general process shown in the diagram below.
Figure 14.1 - Zoning Approval Process
B. Applications
1. Applications may be submitted by the City Council, Planning Commission, and property owners or their authorized agents. Regardless of the applicant, the general review and approval process shown in Table 14.1 is used for all amendment, conditional use, and temporary use applications.
2. The Zoning Administrator shall maintain current application forms for the various types of zoning actions, a schedule of filing fees, and schedule of Planning Commission meeting dates with associated filing deadlines.
3. Such documents and forms shall be readily accessible to the public, both in hard copy available at the City Administration Building and downloadable electronic versions posted to the City website.
4. Applications shall be filed with the Zoning Administrator. All complete applications submitted by the filing deadline will be processed and added to the scheduled Planning Commission agenda. Applications shall only be considered complete when submitted with the following.
a. A completed application form with the appropriate filing fee.
b. Names, addresses, telephone numbers, email addresses, and signatures of the property owner(s), plus the same for applicant(s) and agent(s), as applicable.
c. The type of action requested and a written description of the specific request, including:
i. Existing and proposed land uses, structures, and zoning district classifications
ii. For text and regulation revisions, the description shall include a marked up version of the original language and a clean copy of the exact new language, word for word.
iii. All other applications shall include the legal description and street address of the subject property. A general description of location shall suffice undeveloped properties having no assigned street address.
d. Lot dimensions of the subject property stated in acres or square feet, including fractions.
e. A zoning site plan per Section 13.03, including all required information and graphic depictions, except for text and regulation revisions.
f. The required certified property ownership list specified in Section 14.03.A. 3, except for text or regulation revisions, and “down zoning” of a property from one zoning district classification to a zoning district of lower intensity. The relationship of intensity between the various zoning districts is provided in Section 04.03.
g. Any additional information and attachments as may be required by these regulations or indicated in the Planning Commission bylaws.
5. Public hearings for all zoning applications shall be heard within forty-five (45) days of the application date, except when the applicant requests a later public hearing date or withdraws the application prior to the hearing date.
6. At the time of filing, a copy of the completed application form, with the application date and scheduled public hearing date, shall be provided to each applicant.
14.3. Public Notification & Conduct of Hearings
A. The following means of public notice shall be provided at least twenty (20) days prior to the scheduled public hearing date.
1. Published once in the official newspaper, including the hearing time and location, the legal description of the subject property, or a general description sufficient to identify the property location. When only a general description is provided, notices shall state that a complete legal description is available for public inspection and where such information is available.
2. A copy of such notice shall be mailed to each property owner, applicant, and owner’s agent listed on the application, and to the Secretary of the Planning Commission.
3. Notice shall also be mailed to all owners of record of real property:
a. This property owner notification provision does not apply to public hearings for text or regulation revisions, or down zoning requests, as described in Section 14.02.B.4(f) above.
b. Inside Rose Hill city limits and located within two-hundred (200) feet of the exterior boundary of the subject property.
c. Inside the corporate limits of a city other than Rose Hill and located within two-hundred (200) feet of the exterior boundary of the subject property.
d. In unincorporated Butler County and located within one-thousand (1,000) feet of the exterior boundary of the subject property.
e. A certified list of such property owners of record, including names and mailing addresses, shall be provided by the applicant. Such ownership lists may be obtained from the Butler County Mapping Department. An applicant may also obtain such a list from a land title company, provided it is certified as being true and accurate by a licensed abstractor or title professional. Failure of any a property owner to receive such notice after it has been properly addressed and mailed shall not invalidate any action of the Planning Commission or City Council.
4. If, after notifications have been made and a quorum of the Planning Commission has not convened for the subject hearing; or the Planning Commission has, by vote, authorized the continuance of a hearing to a later date, such may be rescheduled. No further public notice need be given when the future date and time are announced at the present meeting.
5. The Planning Commission may give additional notice to any person at any time as provided in its bylaws. Such rules may include requirements for additional notice to be provided for by the posting of signs on the property to be considered in the appeal application.
B. Conduct of Hearings
After providing the required notifications, all such meetings and hearings shall be open to the public and subject to the Kansas Open Meetings Act (KSA 75-4317 et seq.). All public hearings shall be conducted according to the following provisions.
1. No voting or binding actions shall be taken without a quorum being present.
2. The Planning Commission may exercise quasi-judicial functions and deliberations in closed session according to KSA 75-4318(a), provided:
a. A closed session may only proceed upon proper motion and vote of the Planning Commission.
b. No voting or binding actions shall be taken in a closed session.
3. Any person may testify at a hearing, either in person or by authorized agent or attorney.
4. The Planning Commission may request additional testimony and written or verbal reports on issues related to a specific hearing, from any person, property owner, subject matter expert, utility provider, government agency, etc. when deemed necessary to render an informed decision. Such reports shall be attached to the meeting minutes and made part of the public record.
5. Every official Planning Commission decision shall be filed with the Zoning Administrator without unreasonable delay and shall be open to public inspection during regular business hours.
6. A report on each official Planning Commission action, including summaries of all public hearings, shall be filed with the City Council within fourteen (14) days of the action or hearing date. Such reports may be incorporated into the meeting minutes, rather than filed as separate documents.
14.4. Official Actions & Decisions
In considering the merits of an application and rendering official decisions, the Planning Commission and City Council shall be allowed to act in accordance with the following provisions.
A. All Planning Commission decisions authorized by this article are advisory recommendations subject to the City Council’s discretion as provided in this section.
B. Conditions of Approval
1. When deemed appropriate based on findings of fact, the Planning Commission may stipulate conditions of approval in addition to minimum requirements. This shall include:
a. Any condition of approval specifically allowed by these regulations or otherwise authorized by Kansas statutes.
b. Measures that are not required for the proposed use, but required as a specific use standard or compatibility buffer for similar uses, when deemed a reasonable means of mitigating negative impacts of the proposed use.
c. For proposed changes to zoning district boundaries only, a lesser intensity zoning district may be approved in lieu of the applicant’s requested zoning district. Such shall not trigger any additional public notification requirements.
d. No condition allowing deviation from a minimum requirement shall be allowed if such is defined as a variance per Article 15 or would have an effect equal to a variance.
e. The City Council may only require conditions of approval in the circumstance and manner described below in Section 14.04.C.6.
C. Planning Commission & City Council Voting Provisions
1. Planning Commission votes are determined by the majority of only those members present and voting; and shall not require a majority of the full membership to be in concurrence.
2. Failure of the Planning Commission to make a recommendation shall be considered a recommendation of denial (disapproval).
3. All Planning Commission recommendations shall be adopted by resolution.
a. Such resolutions shall also adopt the findings of fact upon which recommendations are based.
b. As circumstances dictate, the Planning Commission’s verbal motions and recommendations, and written recommendations, reports, and resolutions:
i. Need not cite specific findings of fact or list them individually when such findings, recommendations, and other relevant details are cited individually in written staff reports.
ii. May incorporate by reference findings of fact and other relevant details contained in written staff reports, provided such staff reports are attached to or incorporated into the meeting minutes, case reports, and resolutions containing written recommendations.
c. Likewise, the Official Zoning Map shall be incorporated by reference.
4. In taking action on a Planning Commission recommendation for text or regulation revisions, rezoning cases, or conditional uses, the City Council may only take one of the following actions:
a. Adopt the recommendation by ordinance, as submitted.
b. Override the recommendation with a vote of at least a two-thirds (²/3) majority of City Council.
c. Return it to the Planning Commission for reconsideration, with a statement explaining the reasoning for such.
5. Upon receiving a recommendation returned by the City Council, the Planning Commission shall take one of the following actions during its next regular meeting:
a. Resubmit the original recommendation, with a statement explaining the reasoning for such.
b. Submit an amended recommendation, based on the original.
c. Submit a new recommendation.
d. Take no action, which shall be considered a resubmittal of the original recommendation.
6. When the follow-up recommendation is received from the Planning Commission, the City Council, by simple majority vote, may take one of the following actions:
a. Override the recommendation, thereby denying the application.
b. By ordinance, adopt the Planning Commission’s recommendation as submitted, with revisions or amendments, or with conditions (see Section 14.04.B).
c. The proposed amendment, rezoning, or conditional use shall become effective upon publication of the adopting ordinance.
14.5. Petitions of Protest
Planning Commission decisions (approval or denial) on rezoning and conditional use applications may be protested by petition as follows. Temporary uses are not subject to this provision.
A. Petitions of protest shall only be declared valid when containing a sufficient number signatures of individuals having standing to protest, which shall be limited to either of the following cases:
1. Twenty percent (20%) or more of the owners of record of all real property that would be rezoned by approval of the application.
2. Owners of record of twenty percent (20%) or more of the total notification area for the application, as described in Section 14.03.A.3. The area calculation shall include properties located both inside and outside of Rose Hill city limits, but shall exclude public street rights-of-way.
B. Protest petitions must be filed with the City Clerk within fourteen (14) days of the public hearing’s conclusion to be considered valid.
C. Upon being certified by the City Clerk as a valid protest petition, a super-majority approval threshold is triggered. This shall require the adopting ordinance to pass with at least a three-fourths (¾) majority vote of City Council.
14.6. Other Planning Actions & Approvals
A. The Planning Commission and Zoning Administrator have authorities, powers, and responsibilities over the administration and enforcement of the subdivision regulations similar to those prescribed by these regulations for zoning activities. Such are detailed in the subdivision regulations and shall be carried out accordingly in concert with these regulations and the comprehensive plan.
B. Comprehensive Plan Adoption & Amendment
1. Procedural Requirements
a. Prior to conducting public hearings in consideration of adopting the comprehensive plan and subsequent plan amendments, notification shall be published in the official newspaper in a manner similar to that described in Section 14.03, except for the listed information that is unique to actions affecting individual properties only.
b. Public hearings shall also be conducted in a like manner as provided in these regulations.
c. The comprehensive plan and all amendments to the plan shall be adopted as such by resolution of the Planning Commission, which shall include a recommendation of approval.
d. Upon adoption according to these procedures, the Planning Commission shall submit to the City Council, a certified copy of the plan or amendments to the plan, with a written summary of the public hearing. A copy of the plan shall be “certified” when transmitted with a written statement, signed by the Chairperson and Secretary, attesting that the provided copy is a true and accurate representation of the same plan that was presented for the public hearing and Planning Commission approval proceedings.
e. All Planning Commission approvals and resolutions shall require an affirmative vote of a majority of the entire Planning Commission membership, except as otherwise stipulated in these regulations or prescribed by Kansas statutes.
f. An attested (certified) copy of the adopted or amended comprehensive plan shall be sent, along with a written summary of the public hearing, to all taxing subdivisions (townships, school districts, special districts, etc.) in the City’s established planning area.
g. No comprehensive plan or plan amendment, shall be effective unless approved by the City Council and adopted by ordinance.
C. Conditional Uses
Conditional uses approved in accordance with these regulations shall run with the land upon approval. They shall remain in effect without regard to ownership, so long as the use remains on the subject property without being significantly altered or destroyed.
D. Temporary Uses
Temporary uses are considered a form of conditional use and shall be reviewed and approved according to a similar process and in a similar manner, except that the following provisions differ from those for conditional uses.
1. They are not permanent and do not run with the land. They shall be established for limited period of time, which shall be specified as a condition of approval.
2. In no case shall a temporary use be established for longer than sixty (60) consecutive days, provided that extensions may be approved by the Zoning Administrator upon written request of the applicant. No more than three (3) extensions shall be approved, each lasting the same period of time specified in the original approval. Additional extensions shall only be approved by separate application for a new temporary use permit and approval of such by the original process.
3. Temporary uses shall only be required to provide public notice by publication in the official newspaper, not individual property owners. In addition, the protest petition provision shall not apply to temporary uses.
4. Emergency temporary use applications and those having critical time constraints, may qualify for expedited approval if, in the Zoning Administrator’s judgment, sufficient justification has been provided in writing. In such cases:
a. The application may be forwarded directly to the City Council for consideration without a Planning Commission recommendation.
b. Only very short-term uses, lasting for a period no longer than seven (7) consecutive days, shall qualify for expedited approval; and no time extensions shall be approved.
c. Only complete applications submitted at least twenty-one (21) days from the date of commencement shall be considered for expedited approval.
d. The Zoning Administrator shall review the request in the same manner and according to the same criteria as a normal temporary use application. The supporting documents and applicable recommendations shall be provided to the City Council for consideration of the application.
e. As approved by applicable Kansas statutes and City code, the City Council may approve the adopting ordinance on an emergency basis and waive normal approval, public notification, and ordinance publication procedures/requirements.
14.7. Standards of Review
A. The Planning Commission shall review applications for all types of zoning approval governed by these regulations, according to the standards of review outlined in this section.
B. All Planning Commission actions deemed to be in accordance with the adopted comprehensive plan, shall be presumed to be reasonable.
C. In reviewing rezoning requests, conditional uses, and temporary uses, findings of facts shall be incorporated into all recommendations and resolutions of approval. Such findings shall specifically consider the degree to which the proposed use or application is compatible with surrounding uses, and its appropriateness at the proposed location within the proposed zoning district.
Such reviews of compatibility shall be based on and stated in terms of the following criteria:
1. Character of the immediate neighborhood.
2. Consistency with the comprehensive plan, vision, and character of the City of Rose Hill.
3. Adequacy of public utilities, roadways, and other needed public services, relative to the anticipated impacts of the proposed use.
4. Suitability of the uses to which the property has been restricted under its existing zoning.
5. Length of time property has remained vacant as zoned.
6. Compatibility of the proposed district classification with nearby properties.
7. The extent to which the zoning amendment may detrimentally affect nearby property.
8. The proportionality of losses/impacts to individual property owners in the immediate vicinity relative to the net public gain for the community-at-large.
9. Public input or sentiment regarding the proposed use as voiced in the public hearing and other communications.
14.8. Finality of Board Decisions
As provided by KSA 12-760, as amended, all zoning decisions provided in these regulations are considered to be reasonable exercises of authority granted to the City. All such actions enacted by the City Council are considered final upon publication of the adopting ordinance. Any person, government official or agency, or other individual, jointly
or separately dissatisfied or aggrieved by any such action, may file a petition within thirty (30) days of the ordinance publication in the Butler County District Court seeking relief by judicial review.
14.9. Zoning Compliance Certificates
The Zoning Administrator shall issue a written certificate of zoning compliance to the owner or occupant of any property, or authorized agent thereof, as follows.
A. Sent to zoning change and conditional use applicants within ten (10) days of publication of the adopting ordinance. The compliance certificate shall cite specific applicable references of these regulations and related approvals regarding the uses that can be established and any related standards.
B. Provided within ten (10) days of submitting an application for a development site plan. The Zoning Administrator shall provide a compliance certificate upon accepting the site plan application and verifying that the subject site is appropriately zoned for the proposed use and structure.
C. Provided upon request to any new tenant seeking to occupy an existing developed structure, which shall apply only occupants of business, commercial, and industrial properties. No new commercial/industrial utility connections
or accounts, which have not been previously reviewed for zoning compliance, shall be set up without first being issued a zoning compliance certificate.
D. The Zoning Administrator shall accompany the building inspector on the final inspection prior to issuing the Certificate of Occupancy required by the building code. The Administrator shall inspect the site to ensure the finished development complies with applicable zoning requirements and conditions of approval. The compliance certificate shall be issued only when such is found to be true. No Certificate of Occupancy shall be issued without a zoning compliance certificate.
14.10. Building Permits
A. building permit shall be obtained from the Zoning Administrator prior to commencement of the following activities.
1. Construction, remodeling, reconstruction, or moving of a structure, when such is subject to the provisions of the building code.
2. Moving, relocation, or set up of a mobile or manufactured home.
3. Grading, excavation, or other improvement of land preliminary to the establishment of a use on any property subject to the floodplain regulations.
4. Any building permit issued in conflict with these regulations shall be null and void.
B. Every application for a building permit shall include at least the following:
1. A copy of the recorded plat of such land, which is certified by the County Register of Deeds office.
2. No application shall be accepted without verification that a site plan has been approved for the subject property, as applicable.
3. Applications that do not required an approved site plan shall instead include a plot plan drawn to scale showing the following information:
a. Location of proposed building site with the ground area, height, and bulk of all present and proposed structures.
b. Access drives and parking lots.
c. Structure footprint in relation to lot lines, waste disposal areas, the use to be made of such present and proposed structures on the land.
d. Other information as may be required by the Zoning Administrator for the proper enforcement of these regulations.
4. One (1) copy of both the plat and the plot plan shall be retained by the Zoning Administrator as a public record.
C. A building permit shall be either issued or refused by the Zoning Administrator within ten (10) days after the application is filed or within such further period as may be agreed to by the applicant. No building permit shall be issued unless all the zoning requirements of these regulations are met.
D. A building permit shall become null and void six (6) months after the date of issuance, unless within such period construction, structure, moving, remodeling or reconstruction of a structure is commenced or a use is commenced.