Chapter 18.245
AMENDMENTS

Sections:

18.245.010    Amendments initiated.

18.245.020    Procedure.

18.245.030    Restriction on filing.

18.245.040    Certificate of ownership.

18.245.050    Legal protest.

18.245.060    Building and development permit issuance.

18.245.070    Filing fees.

    Cross References: City council – mayor, Chapter 2.15 TMC; planning commission, Chapter 2.135 TMC.

18.245.010 Amendments initiated.

The governing body may, from time to time, supplement, change or generally revise the boundaries or regulations contained in this division by amendment. A proposal for such amendment may be initiated by the governing body or the planning commission. Further, a proposal to amend the district zoning map may also be initiated upon application of the owner of property affected. (Code 1995 § 48-33.00.)

18.245.020 Procedure.

Amendments to this division may be made to either the specific provisions or text of this division, or to the district map. Any amendment shall be adopted by the governing body by ordinance (applicable to the jurisdiction of the city of Topeka, Kansas) and resolution (applicable to the jurisdiction of unincorporated Shawnee County, Kansas); and said documents shall be published in the official newspaper as required by law.

(a) The procedure for amending the textual provisions of this division shall be in accordance with state statutes and specifically provide for the order set forth below:

(1) All proposed amendments shall be referred to the planning commission for a public hearing and recommendation.

(2) The proposed amendment shall be published setting forth the existing provision and the purpose and extent of the proposed amendment, in the official newspaper at least 20 days prior to the date of the public hearing when the matter will be considered. Such notice shall fix the time and place for such hearing.

(3) The hearing may be adjourned from time to time and at the conclusion of the same, a majority of the members of the entire planning commission shall be required to recommend approval or denial of the amendment to the governing body. An individual motion to approve or to deny which receives less than a majority vote of the members of the planning commission shall be deemed a failed motion and no further action by the planning commission is required. In such instances, the matter shall not be transmitted to the governing body for consideration.

(4) Upon receipt of the recommendation and written summary of the hearing, the governing body either may:

(i) Approve such recommendations by the adoption of the same by ordinance in a city or resolution in a county;

(ii) Override the planning commission’s recommendations by a two-thirds majority vote of the membership of the governing body;

(iii) May return the same to the planning commission for further consideration, together with a statement specifying the basis for the governing body’s failure to approve or disapprove.

(5) If the governing body returns the planning commission’s recommendations, the planning commission, after considering the same, may resubmit its original recommendations giving the reasons therefor or submit new and amended recommendations. Upon the receipt of such recommendations, the governing body, by a simple majority thereof, may adopt or may revise or amend and adopt such recommendations by the respective ordinance or resolution, or the governing body need take no further action thereon.

(6) If the planning commission fails to deliver its recommendations 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 recommendations and proceed accordingly.

(b) The procedure for amending the district map shall be in accordance with state statutes and specifically provide for the order set forth below:

(1) All proposed amendments to the district map shall be referred to the planning commission as initiated by the governing body or the commission; or upon a property owner by filing the request with the planning agency.

(2) The planning director shall have the authority and responsibility to establish the processing schedule and administrative procedures to consider the request, as well as determine required basic information and data relative to the proposal in respect to processing of any proposed amendment or conditional use permits.

(3) Any proposed district map amendment initiated by a property owner of the property affected shall be processed as follows:

(i) Prior to filing an application, the applicant is encouraged to request a preapplication conference with the planning agency staff. The purpose of the conference is to provide the owner an opportunity to explain the general development concept and site conditions, and for the planning staff to explain this division, and regulations, standards, policies, alternatives and constraints applicable to the proposal and site, as well as the comprehensive plan or other adopted plans, programs, or development policies.

(ii) At the time of the preapplication conference, the owner shall provide the following general information:

(A) A legal description and area of subject property.

(B) The present or existing use of the site.

(C) The use of adjacent properties.

(D) Relationship to supporting public or community facilities including utility services.

(E) A statement as to the schedule or timeframe for intended use and development.

(iii) The owner shall file an official application for an amendment, which shall consist of:

(A) Filing fee.

(B) Official application and justification.

(C) Supporting information, including the following:

1. The location and relationship of the property to the surrounding area.

2. Legal description of the property.

3. The proposed district.

4. The circulation or transportation network serving the property.

5. Surface drainage and limitations.

6. Sewer, water, and other utility availability and capacity limitations.

7. Other unique or special site conditions.

8. All public easements of record.

9. Traffic analysis impact study, if deemed necessary by the planning director.

10. The planning director may require the subject property to be platted or replatted simultaneously with consideration of a zoning amendment on the subject property.

(D) Petitioners of the planned unit development district shall submit for review processing and adoption, the plan of development in accordance with provisions set forth in the PUD district.

(E) Proof that all real property taxes including any special assessments are paid to date and are current for the subject property. In the event real property taxes, including any special assessments, are delinquent, the application for amendment shall not be scheduled for public hearing until such time as the taxes, including any special assessments, are paid or satisfactory escrow arrangements for the payment of such taxes or special assessments have been made and presented to the city attorney’s office and/or Shawnee County counselor’s office for approval.

(iv) The proposed amendment shall be published in the official newspaper at least 20 days prior to the public hearing.

(v) In addition to such publication notice, written notice of such proposed amendment shall be mailed at least 20 days before the hearing to all owners of record of lands located within at least 200 feet of the area proposed to be altered for regulations of the city and to all owners of record of lands located within at least 1,000 feet of the area proposed to be altered for regulations of the county. The notice shall fix the time and place of the public hearing to consider a proposed rezoning, and of an opportunity granted to interested parties to be heard. All notices shall include a statement that a complete legal description is available for public inspection and shall indicate where such information is available. When the notice has been properly addressed and deposited in the mail, failure of a party to receive such notice shall not invalidate any subsequent action taken by the planning commission or the governing body.

(vi) If the city proposes a zoning amendment to property located adjacent to the city’s limits, the area of notification of the city’s action shall be extended to at least 1,000 feet in the unincorporated area. 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.

(vii) Notice requirements as set forth in this chapter are sufficient to permit the planning commission to recommend amendments to zoning regulations which affect only a portion of the land described in the notice or which give all or any part of the land described a zoning classification of lesser change than that set forth in the notice. A recommendation of a zoning classification of lesser change than that set forth in the notice shall not be valid without republication and, where necessary, remailing, unless the planning commission has previously established a table or publication available to the public which designates what zoning classifications are lesser changes authorized within the published zoning classifications.

(viii) The planning staff shall examine the application with respect to the comprehensive plan, policies and other development requirements, existing infrastructure and capacities with respect to essential public improvements, and shall make a report to the planning commission.

(ix) The planning commission shall hold a public hearing and act in a quasijudicial capacity to hear testimony; weigh the facts and conditions; and make findings and conclusions with respect to:

(A) The character of the neighborhood.

(B) The zoning and use of properties nearby.

(C) The suitability of the subject property for the uses of which it has been restricted.

(D) The extent to which removal of the restrictions will detrimentally affect nearby properties.

(E) The length of time the subject property has remained vacant (or unused) as zoned.

(F) The relative gain to the public health, safety and welfare by the destruction of the value of affected property as compared to the hardship imposed upon the individual landowner.

(G) Recommendation of professional staff.

(H) Conformance to adopted or recognized comprehensive plan.

(x) The planning commission members shall publicly disclose any ex parte contacts prior to receiving testimony at the time of the public hearing.

(xi) For action on an amendment, a quorum of the planning commission is more than one-half of all the members. A majority of the members of the planning commission present and voting at the hearing shall be required to recommend approval or denial of the amendment to the governing body. If the planning commission fails to make a recommendation on a rezoning request, the planning commission shall be deemed to have made a recommendation of disapproval. The adoption of an amendment to the district map shall conform to all provisions pertaining to legal protest as set forth elsewhere in this division.

(xii) Upon receipt of a recommendation of approval or disapproval of such proposed amendment and the reasons therefor the governing body may:

(A) Adopt such recommendation by ordinance in a city or by resolution in a county;

(B) Override the planning commission’s recommendation by a two-thirds majority vote of the membership of the governing body; or

(C) Return such recommendation to the planning commission with a statement specifying the basis for the governing body’s failure to approve or disapprove.

(xiii) If the governing body returns the planning commission’s recommendation, the planning commission, after considering the same, may resubmit its original recommendation giving the reason therefor or submit a 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.

(xiv) If the planning commission fails to deliver it’s 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.

(xv) All such actions by the governing body shall be based upon findings, conclusions, with respect to the factors contained in subsection (b)(3)(ix) of this section and the same shall be entered into the official record.

(xvi) All proposed amendments to the district map which the governing body approves, shall be adopted by an ordinance (city of Topeka) or resolution (Shawnee County) to complete the amendment to the district map. The proposed rezoning shall become effective upon publication of the respective adopting ordinance or resolution.

(xvii) If such amendment affects the boundaries of any zone or district, the respective ordinance or resolution shall describe the boundaries as amended, or if a provision is made for the fixing of the same upon an official map which has been incorporated by reference, the amending ordinance or resolution shall define the change or the boundary as amended, shall order the official map to be changed to reflect such amendment, shall amend the section of the ordinance or resolution incorporating the same and shall reincorporate such map as amended.

(xviii) Development permits may then be issued in accordance with the appropriate district regulations as well as in compliance with other ordinances, resolutions, regulations, and policies of the subject jurisdiction. Except for the planned unit development district, site development plans and construction plans shall be required only in conjunction with an application of a construction permit.

(c)(1) Whenever five or more property owners of record owning 10 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 by the submission of a petition bearing the signatures of such owners to the governing body, then such petition shall be referred to the planning commission and staff for study, consideration, hearing, recommendation and report back. Such amendments to the district map under this provision shall require notice by publication in the official newspaper 20 days prior to the date of hearing and shall be considered at a public hearing by the planning commission. Provided further, written notice to any property owners shall not be required and the proposal shall not be subject to a protest petition provision. A filing fee under this provision shall not be required.

(2) Whenever a governing body initiates a rezoning from a less restrictive to a more restrictive zoning classification of 10 or more contiguous or noncontiguous lots, tracts or parcels of the same zoning classification having five or more owners of record, such amendments to the district map under this provision shall require notice by publication in the official newspaper 20 days prior to the date of hearing and shall be considered at a public hearing by the planning commission. Provided further, written notice shall only be required to be mailed to the owners of record of the properties to be rezoned and only such owners shall be eligible to file a protest petition. A filing fee under this provision shall not be required. (Ord. 18085 § 2, 9-9-03; Ord. 16982 § 1, 7-23-96; Ord. 16754 § 28, 9-13-94. Code 1995 § 48-33.01.)

    Cross References: City attorney, TMC 2.25.070; planning department, TMC 2.25.090.

18.245.030 Restriction on filing.

Whenever the governing body has denied a proposed amendment to the district map, or whenever the planning commission has conducted a public hearing and made a recommendation on a request to amend zoning and which a request is subsequently withdrawn by the applicant prior to governing body consideration, a one-year refiling limitation from the date of the original petition filing of the application shall apply, except when the planning commission, after due consideration, grants permission to refile within the specified time. (Code 1995 § 48-33.02.)

18.245.040 Certificate of ownership.

The certificate of ownership compiled by a land title insurance company provided for the purposes of notification to the affected property owners, when prepared and filed not more than 60 days prior to filing an application for rezoning, shall be valid throughout the rezoning process. (Code 1995 § 48-33.03.)

18.245.050 Legal protest.

(a) Approval Requirements. Regardless of whether or not the planning commission approves or disapproves a proposed zoning amendment, if a protest against such amendment is filed in the office of the city clerk or county clerk as applicable, within 14 days after the date of the conclusion of the public hearing pursuant to the publication notice, signed by the owners of record of 20 percent or more of any real property proposed to be rezoned or by the owners of 20 percent or more of the total area required to be notified by this act of the proposed rezoning of a specific property, excluding streets and public ways, the ordinance or resolution adopting such amendment shall not be passed except by at least a three-fourths vote of all of the members of the governing body.

(b) Protest Petition. A protest petition shall be submitted on the form provided by the planning agency and shall be considered to be valid when the following information is completed thereon:

(1) Case identification and location.

(2) Signature of all owner(s) of record.

(3) Legal description of the property owned by the protest petitioner.

(4) Notary public hand and seal.

(c) Withdrawal of Protest. In the event a petition protesting a change of zoning is filed and the petitioner desires to withdraw the petition, the petitioner shall file a written statement with either the city clerk or county clerk as was originally filed by the petitioner, prior to the close of business hours of the concluding date to file protest petitions as provided by state statutes applicable to the relevant jurisdiction set forth above.

(d) Amendment or Revision of Rezoning Application. In the event there is an amendment or revision to the proposed zoning application with respect to the boundary or zoning classification following the conclusion of the public hearing by the planning commission, resulting from either consideration by the applicant or the governing body, the matter shall be referred back to the planning commission for reconsideration. Prior to reconsideration, publication notice, mailing of notice and a new public hearing shall be held in the like manner of the original application.

In the event that a legal protest of 20 percent has been filed, said protest shall apply regardless of any proposed revisions or amendments to the petition in respect to classification and/or property boundary.

(e) Action by the Governing Body. Whenever a legal protest of 20 percent or more has been filed, the governing body shall not take any action on any proposed change of zoning when any member(s) of the governing body is not present.

(f) No Further Consideration or Subsequent Action. Whenever the governing body has taken a final and conclusive action to amend the district map, henceforth no further consideration or subsequent action shall be taken that will override or overturn the previous action taken; unless and until a new or amended application shall have been filed and the rezoning process shall have been complied with as provided for above. (Code 1995 § 48-33.04.)

    Cross References: City clerk, TMC 2.25.010; planning department, TMC 2.25.090.

18.245.060 Building and development permit issuance.

No building permit shall be issued nor shall any use be established or increased in intensity, nor shall there be any requested alterations to or construction upon a site in any of the districts for the erection or alteration of a structure or building until a site plan has been submitted and approved for a use as permitted in the applicable district and appropriate development permits including building and zoning permits issued. Said site plan and development permits shall not be approved nor issued which are not in accordance with applicable provisions of the following regulatory measures:

(a) Floodplain zoning regulations as established by the governing body.

(b) Airport hazard regulations as established by the governing body.

(c) Protective measures of the Kansas Historic Preservation Act, K.S.A. 75-2715 through 75-2725 as amended.

(d) Permit requirements relating to excavation or construction within 1,000 feet landward to riverward of the centerline of any portion of a flood control works located within the jurisdiction.

(e) Consideration of applicable changes in zoning, in height or setback restrictions and the granting of variances or exceptions within the state zoning area by the Capitol Area Plaza Authority pursuant to the provisions of K.S.A. 75-3619 et seq.

(f) Plat of subdivision regulations and subject plat of subdivision except as set forth below:

(1) Land utilized for agricultural uses as defined by this division shall not be required to be a subdivided lot of record.

(2) Land on which the principal structure is that of an existing detached single-family dwelling building may be exempted from being a subdivided lot of record by determination of the applicable director of public works of the jurisdiction, all in respect to the issuance of certain permits when the director finds the following conditions exist:

(i) The requested permit is for an accessory structure or as an addition or alteration to an existing dwelling as determined to be minor in nature by said director of public works.

(ii) Adequate utility and drainage easements exist; adequate street right-of-way exists; and the property is not involved with the future alignment or extension of a public street.

(iii) There are no existing or anticipated drainage problems related to the site or the development.

(iv) The site is serviced by adequate public utilities and services; and the proposed development conforms to the dimensional regulations of the zoning district.

(3) Land on which existing or proposed development is to be devoted to such usage that the requirement to plat is impractical and would not result in the betterment to the public interest; and when it is determined by both the planning agency director and the director of public works of the jurisdiction considering the permit that a waiver of the plat of subdivision requirement will not adversely affect the subject property nor nearby properties, and they find that all of the following conditions exist:

(i) Adequate utility and drainage easements exist; adequate street right-of-way exists; and the property is not involved with the future alignment or extension of a public street.

(ii) There are no existing or anticipated drainage problems related to the site or the development.

(iii) The site is serviced by adequate public utilities and services; and the proposed development conforms to the dimensional regulations of the zoning district.

(iv) That there are special circumstances or conditions affecting the property.

(v) That the waiver is necessary for the reasonable and compatible development of the subject property.

(vi) That the granting of the waiver will not be detrimental to the public interest or other properties in the vicinity and will effect substantial justice and promote the general welfare.

(g) Current adopted Shawnee County wastewater management plan, or variances as may be granted by the applicable governing body as provided by said plan. (Code 1995 § 48-33.05.)

    Cross References: Planning department, TMC 2.25.090; public works department, TMC 2.25.110.

18.245.070 Filing fees.

(a) All applications for amendments to the district map, conditional use permits, home occupation permits and appeals to the board of zoning appeals shall be accompanied by the appropriate filing fee as adopted by resolution of the governing body. Copies of the current resolution establishing such fees shall be on file in the offices of the planning department and city clerk.

(b) In the event an application for amendment to the district map or conditional use permit is withdrawn prior to submission to the planning commission or governing body, the applicant may recover the filing fee less the expenses incurred and the cost of the planning staff time expended in reviewing the application. (Ord. 19557 § 1, 5-3-11.)