18.90.040 Conditional use permits | Ketchikan Gateway Borough Code

18.90.040 Conditional use permits.

(a) Purpose. A conditional use permit, issued hereunder, is a device which gives flexibility to the zoning ordinance in a uniform and controlled manner. It permits inclusion, in zones where it is permitted by the zoning ordinance, of uses which are generally desirable to the community, but where the nature of the use will not permit its location at every location in the said zones because of the special problems which the use presents.

(1) Purpose. An abbreviated conditional use permit is a device which permits uses that are generally desirable to the community, but the approval thereof could benefit from public comment.

(2) Applicability. Abbreviated conditional use permits are granted for uses that are specifically identified to be processed under the provisions of this section.

(3) Approval Authority. Abbreviated conditional use permits are granted, or referred to the planning commission for a public hearing, by the zoning official.

(4) Application. To be considered complete, an application for an abbreviated conditional use permit must meet the standards below.

a. Contain a completed application for conditional use permit form provided by the planning department; and

b. Contain a completed application for a zoning permit as contained in KGBC 18.90.020; and

c. Contain any other information, documents, or drawings the zoning official deems necessary to evaluate the request for conformance with the standards contained in subsection (c)(6) of this section.

(5) Upon request of the applicant, an abbreviated conditional use permit application may be processed under the procedure for conditional use permits.

(6) Fees. Application fees for abbreviated conditional use permits shall be as provided for in KGBC 2.105.030.

(7) Upon receipt of an application for an abbreviated conditional use permit, the zoning official shall examine said application and, within 10 days of receipt, notify the applicant of the deficiencies found in the application, or schedule the application for public notice.

(8) The zoning official shall render a decision within 30 days of the filing of a complete application for an abbreviated conditional use permit. As express conditions precedent to the granting of any conditional use permit the zoning official must determine in writing that:

a. The requested conditional use is expressly permitted as an abbreviated conditional use permit; and

b. The public notice did not result in a request to remand the request to the planning commission in a timely manner.

(9) Within 10 days of the decision written notice of the request shall be made in accordance with the standards set forth in KGBC 18.90.060(b). The notice shall contain a general description of the request, the location of the property affected, and the method by which a decision by the full planning commission can be requested.

(10) Upon written request by the applicant or any other person notified in subsection (b)(8) of this section within 15 days of distribution of the notice of request, the request shall be referred to the planning commission for processing in the same manner as a conditional use permit request in accordance with subsection (c) of this section.

(11) Unless a request to refer the matter to the planning commission for formal consideration is filed with the zoning official within 15 days of the date of notice distribution, the decision becomes final.

(12) An abbreviated conditional use permit granted by the zoning official shall be conditional upon the privilege granted being utilized within six months after the effective date of the abbreviated conditional use permit.

(13) Revocation and Cancellation of Permit. Any abbreviated conditional use permit granted under this chapter may be revoked and canceled by the planning commission for failure to comply with the conditions of the abbreviated conditional use permit. Before taking any action toward revoking such permit, however, the planning commission shall first give the owner of the property upon which the use is authorized 20 days’ written notice, by prepaid certified U.S. mail, in advance of the date of hearing, of the subject of the hearing, and of the date, time, and place of the hearing. This notice is complete upon mailing. The planning commission shall thereafter hold the said hearing at the time and place set forth in said notice. The permittee may, at said hearing, present evidence on his own behalf and may cross-examine witnesses. After the planning commission has concluded the said hearing, the planning commission shall make written findings of fact from the evidence presented to it at said hearing supporting the conclusion that the permittee has failed to comply with the conditions of the conditional use permit (in cases where the said permit is revoked) or that the permittee has not failed to comply with the conditions of the conditional use permit (in cases where the said permit is not revoked). These findings shall be embodied in a formal written resolution of the planning commission and shall be retained permanently by the planning commission as part of its official records. In all revocation proceedings the burden of proof is upon the planning commission.

a. After said abbreviated conditional use permit has been revoked, the permittee shall thereafter immediately discontinue the use of the said property for which the said permit had originally been granted. If, after an abbreviated conditional use permit has been revoked, the permittee does not immediately discontinue the use of said property for which the said permit had originally been granted, he is guilty of a violation and, upon conviction thereof, is subject to a fine as established in KGBC Title 2. Each 30-day period that such violation continues shall be deemed a new and separate violation. In addition, the planning commission may apply to the superior court for an injunction to restrain the former permittee from using said land for the purposes previously authorized in said permit.

b. In the event, however, that the permittee duly appeals the revocation of said permit to the board of adjustment, such appeal stays enforcement proceedings unless the board or a court issues an enforcement order based on a certificate of imminent peril to life or property made by the planning commission.

(14) Appeals to the Planning Commission. Decisions by the zoning official on the grant or appeal of an abbreviated conditional use permit may be appealed to the planning commission according to the procedures set out in KGBC 18.90.070.

(1) Applicability. Except as specified in subsections (a) and (b) of this section, all requests for a conditional use permit are processed under the provisions of this subsection.

a. Requests that are specifically specified for processing as abbreviated conditional use permits; or

b. Requests to modify an existing conditional use permit.

(2) Application. To be considered complete an application for a conditional use permit must meet the standards below.

a. Contain a completed application for conditional use permit form provided by the planning department; and

b. A complete zoning permit application as contained in KGBC 18.90.020; and

c. Contain any other information, documents, or drawings the zoning official deems necessary to evaluate the request for conformance with the standards contained in subsection (c)(6)(e) of this section; and

d. Contain any application requirements contained in KGBC 18.50.030.

(3) Fees. Application fees for conditional use permits shall be as provided for in KGBC 2.105.030.

(4) Upon receipt of an application for a conditional use permit, the zoning official shall examine said application and, within 15 days of receipt, notify the applicant of either the deficiencies found in the application, or the date of the meeting at which the request will be heard by the planning commission.

(5) Approval Authorization. Conditional use permits are granted or denied by the planning commission at a public hearing.

a. Hearing Scheduled. When the zoning official has determined that the said application meets the requirements of this chapter, they shall forward the completed application to the planning commission for its determination within 60 days of determining the application to be complete, unless such time limit is extended by written consent by the applicant.

b. Public notice shall be as provided in KGBC 18.90.060.

c. From the time of filing such application until the time of such hearing, the application, together with all plans and data submitted, shall be available for public inspection in the office of the zoning official.

d. After the zoning official has duly forwarded the completed application to the planning commission, the planning commission shall study it and shall, within 30 days after the receipt of said application, hold a public hearing whereat it:

1. Shall hear and consider evidence and facts from any person at the public hearing or written communication from any person relative to the matter; and

2. May receive evidence pertinent to the granting or denial of said application according to the standards set forth in subsection (c)(6)(e) of this section.

e. Applicable Criteria. As express conditions precedent to the granting of any conditional use permit, a majority of the planning commission members (not merely a majority of the members present), after a public hearing, must find in writing that:

1. The requested conditional use is reasonably necessary for the public health, safety, and general welfare; and

2. The requested conditional use will not permanently or substantially injure the lawful use of neighboring properties; and

3. The requested conditional use will generally be in harmony with the comprehensive plan; and

4. The requested conditional use is expressly permitted by the zoning ordinance in the zone in which the conditional use permit is requested; and

5. The requested conditional use meets any specific criteria contained in KGBC 18.50.030.

f. If, at the said hearing, the planning commission determines that it needs additional information, it may recess said hearing for a period of not more than 30 days, during which time it shall procure or receive such additional information; provided, however, that before it so recesses, it must then and there announce the time and place at which the hearing will be resumed.

g. Within 30 days after the completion of the said hearing, the planning commission shall, from the evidence presented to it, make written findings of fact in a formal resolution of the planning commission, which findings of fact support the standards set forth in subsection (c)(6)(e) of this section (in the case where a conditional use permit is granted) or which findings of fact show that the said evidence does not support the said standards (in the case where a conditional use permit is not granted).

h. Unless otherwise specified by the planning commission as a condition of approval, any conditional use permit approved by the planning commission shall be conditional upon the privilege granted being utilized within 12 months after the effective date of the conditional use permit.

(7) Restrictions and Conditions. In granting a conditional use permit, the planning commission may, in order to ensure compliance with the foregoing standards:

a. Require and attach to the conditional use permit conditions which are more restrictive and in excess of the development standards for the zone in which the conditional use is proposed;

b. Require and attach to the conditional use permit time limits for some or all conditions of the conditional use permit;

c. Require and attach to the conditional use permit conditions which include development requirements in excess of those elsewhere required, landscaping, adequate and lawful water and sewage facilities, adequate and lawful parking, adequate and lawful curb cuts and traffic movement, and any other conditions which will uphold the spirit and intent of the zoning ordinance, the comprehensive plan, and the harmony and beneficial use of neighboring properties. The planning commission may also require an agreement and performance bond to ensure compliance with said restrictions and conditions.

(8) Relief From Use-Specific Conditional Use Standards. The planning commission may decrease or waive use-specific conditional use standards, permanently or on a temporary basis. The planning commission must find that the waiver or reduction in standards would not adversely impact surrounding properties.

(9) Revocation and Cancellation of Permit. Any conditional use permit granted under this chapter may be revoked and canceled by the planning commission for failure to comply with the conditions of the conditional use permit. Before taking any action toward revoking such permit, however, the planning commission shall first give the owner of the property upon which the conditional use is authorized 20 days’ written notice, by prepaid certified U.S. mail, in advance of the date of hearing, of the subject of the hearing, and of the date, time, and place of the hearing. This notice is complete upon mailing. The planning commission shall thereafter hold the said hearing at the time and place set forth in said notice. The permittee may, at said hearing, present evidence on his own behalf and may cross-examine witnesses. After the planning commission has concluded the said hearing, the planning commission shall make written findings of fact from the evidence presented to it at said hearing supporting the conclusion that the permittee has failed to comply with the conditions of the conditional use permit (in cases where the said permit is revoked) or that the permittee has not failed to comply with the conditions of the conditional use permit (in cases where the said permit is not revoked). These findings shall be embodied in a formal written resolution of the planning commission and shall be retained permanently by the planning commission as part of its official records. In all revocation proceedings the burden of proof is upon the planning commission.

a. After said conditional use permit has been revoked, the permittee shall thereafter immediately discontinue the use of the said property for which the said permit had originally been granted. If, after a conditional use permit has been revoked, the permittee does not immediately discontinue the use of said property for which the said permit had originally been granted, he is guilty of a violation and, upon conviction thereof, is subject to a fine of not more than $500.00. Each 30-day period that such violation continues shall be deemed a new and separate violation. In addition, the planning commission may apply to the superior court for an injunction to restrain the former permittee from using said land for the purposes previously authorized in said permit.

(10) Appeals to the Board of Adjustment. Decisions by the planning commission on the grant or denial of a conditional use permit are subject to appeal to the board of adjustment under the procedures of KGBC 18.90.070.

(1) Intent. Over time, the circumstances under which a conditional use permit was originally granted can change in such a way as to lessen or obviate the value of the permit. The purpose of this chapter is to provide a mechanism by which a quantifiable standard upon which a conditional use permit, granted by the planning commission, may, at the request of the holder of said permit, be modified. It is not the purpose of this chapter to allow a request to modify a conditional use permit granted by the planning commission that has been submitted by any other person or agency to be considered. To allow such modifications would engender distrust in the conditional use permit process and nullify the benefits they impart. Existing conditional use permits granted by the planning commission may only be requested for modification by a third party under the provisions of KGBC 18.90.020(d).

a. To be considered complete an application to modify a conditional use permit must meet the standards below.

1. Contain a completed application for conditional use permit modification form provided by the planning department; and

2. Contain the original conditional use permit application; and

3. Contain a site plan that clearly shows any modifications that are desired; and

4. A complete zoning permit application as contained in KGBC 18.90.020; and

5. Contain any other information, documents, or drawings the zoning official deems necessary to evaluate the request.

(3) Fees. Application fees for conditional use permit modifications shall be as provided for in KGBC 2.105.030.

(4) Upon receipt of an application for a conditional use permit modification, the zoning official shall examine said application and, within 10 days of receipt, notify the applicant of the deficiencies found in the application, or schedule the application for public notice.

(5) Approval Authority. Modifications to conditional use permits are granted or referred to the planning commission by the zoning official.

(6) The zoning official shall render a decision within 30 days of the filing of a complete application for an abbreviated conditional use permit. As express conditions precedent to the granting of any conditional use permit the zoning official must determine in writing that:

a. The requested modification changes a quantifiable standard under which the original conditional use permit was granted by 10 percent or less; and

b. The requested modification will not create a violation of any development standard contained in the underlying zoning; and

c. The public notice did not result in a request to remand the request to the planning commission in a timely manner.

(7) Within 10 days of the decision, written notice of the request shall be made in accordance with the standards set forth in KGBC 18.90.060(b). The notice shall contain a general description of the request, the location of the property affected, and the method by which a decision by the full planning commission can be requested.

(8) Unless a request to refer the matter to the planning commission for formal consideration is filed with the zoning official within 15 days of the date of notice distribution, the decision becomes final.

(9) Appeals to the Planning Commission. Decisions by the zoning official on the grant or denial of a modification to a conditional use permit are subject to appeal to the planning commission under the procedures of KGBC 18.90.070.

(e) Duration. Except as otherwise provided for in this title, or as a condition placed by the planning commission, conditional use permits expire if the use for which they are granted ceases for a period of 12 consecutive months, or 18 months in any 36-month period. [Ord. No. 2022, §15 (Exh. A), 7-17-23.]