HomeMy WebLinkAbout117-03 Ordinance RECORD OF ORDINANCES
Dayton Legal Blank, lnc. Foim No. 30043 _
Ordinance No.ORn 117-Q'~[A~NDD+ D) Passed . 20
AN ORDINANCE AMENDING SECTION 153.236 OF
THE DUBLIN CODIFIED ORDINANCES ENTITLED
"PROCEDURE FOR AUTHORIZING A CONDITIONAL USE"
WHEREAS, it is necessary from time to time to amend the Dublin Codified
Ordinances; and
WHEREAS, Section 153.236 of the Dublin Codified Ordinances sets forth the
application procedures and standard of review for the approval and disapproval of
conditional uses; and
WHEREAS, upon legal review of Section 153.236, it was recommended that the
portions of Section 153.236 pertaining to approval, approval with modifications and
disapproval of conditional uses should be amended to provide the Planning and Zoning
Commission with the most flexibility possible in reviewing conditional use requests; and
WHEREAS, the Planning and Zoning Commission concurs that the portions of Section
153.236 pertaining to approval, approval with modifications and disapproval of
conditional uses should be amended; and
WHEREAS, the Planning and Zoning Commission reviewed this proposed amendment
on December 4, 2003, and recommends its adoption;
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NOW, THEREFORE, BE IT ORDAINED by Council of the City of Dublin, State of j
Ohio, ~ of the elected members concurring that: I~
Section 1. Section 153.236(C) of the Dublin Codified Ordinances is hereby repealed in II
its entirety and replaced with the following:
(C) Action by the Planning Commission. The Planning and Zoning Commission 'I
shall hold a public hearing and shall not approve a conditional use unless it finds that
such use at the proposed location meets all of the following requirements:
(1) The proposed use will be harmonious with and in accordance with the general II!
objectives, or with any specific objective or purpose of the Zoning Code and/or
Community Plan.
(2) The proposed use will comply with all applicable development standards, except
as specifically altered in the approved conditional use.
(3) The proposed use will be harmonious with the existing or intended character of
the general vicinity and that such use will not change the essential character of the same
area.
(4) The use will not be hazardous to or have a negative impact on existing or future
surrounding uses.
(5) The area and proposed use(s) will be adequately served by essential public
facilities and services such as highways, streets, police, and fire protection, drainage ~I
structures, refuse disposal, water and sewers, and schools; or that the persons or agencies
responsible for the establishment of the proposed use shall be able to provide adequately
any such services.
(6) The proposed use will not be detrimental to the economic welfare of the
community.
III
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RECORD OF ORDINANCES
Dayton Legal Blank, Inc. Form No. 30043
Ordinance No.nRn_ 117-03 (AMF,N~~i Passed , 20
(7) The proposed use will not involve uses, activities, processes, materials,
equipment and conditions of operation, including, but not limited to, hours of operation,
that will be detrimental to any persons, property, or the general welfare by reason of
excessive production of traffic, noise, smoke, fumes, glare, odor or other characteristic
not comparable to the uses permitted in the base zoning district.
(8) Vehicular approaches to the property shall be so designed as not to create
interference with traffic on surrounding public and/or private streets or roads.
(9) The proposed use will not be detrimental to property values in the immediate
vicinity.
(10) The proposed use will not impede the normal and orderly development and
improvement of the surrounding property for uses permitted in the district.
Section 2. Section 153.236(E) of the Dublin Codified Ordinances is hereby created and
shall provide as follows:
(E) Conditional use approval. Upon a favorable finding, the Planning and Zoning j
Commission shall approve a conditional use application within 30 days following the
public hearing.
Section 3. Section 153.236(F) of the Dublin Codified Ordinances is hereby created and
shall provide as follows:
(F) Conditional use permit. A certificate of zoning compliance may be issued only
for an approved conditional use within the period of one year from the date of final
approval by the Planning and Zoning Commission. The right to such certificate of
zoning compliance shall expire after this one year period.
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Section 4. Section 153.236(G) of the Dublin Codified Ordinances is hereby created and
shall provide as follows: ~
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(G) Building permit. A building permit may be obtained only for the development in
accordance with the approved plot plan.
Section 5. This Ordinance shall take effect on the earliest date provided by law.
Passed this ~ day of ( , 2004.
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Mayor -Presiding Officer ;
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ATTEST:
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Clerk Of COUnCII I hereby certify that copies of this
Ordinance/Resolution were posted in the ~
Sponsor: Planning Divisl0n City of Dublin in accordance with Secrion
73125 of the Ohio Revised Code. I
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De Clerk of Council, Dublin, Ohio
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Department of Development
Division of Planning
5800 Shier-Rings Road • Dublin, Ohio 43016
C[TY OF DUBLIN Phone: 614-410-4600 • Fax: 614-410-4747
TO: Members of Dublin Cit Council M e 111
Y
FROM: Jane S. Brautigam, City ManagertJ«,Y,,~~. i~~~,.,t,~
DATE: January 13, 2004
INITIATED BY: Gary P. Gunderman, Assistant P~ ~ ing Director~~~~
RE: Ordinance 117-03 (Amended) -Procedure for Authorizing a Conditional Use
SUMMARY:
In early 2003 the Planning and Zoning Commission questioned the procedures that the
current Code requires for the review of conditional use applications. In response to this
the City Law Director's office pointed out that recent court decisions had raised certain
questions regarding the utility of the current Code and suggested certain types of
changes. The reasons for these changes are outlined in a memo dated May 15. On June
5, 2003, the Planning and Zoning Commission passed a motion recommending that
changes be drafted that would tighten up the Code language, and on July 21, the City
Council passed a motion confirming the Planning Commission recommendation. On
October 20 draft changes were given a first reading and referred to the Planning and
Zoning Commission, and on December 4, the Planning and Zoning Commission
recommended that the ordinance as now amended be approved.
These amendments would give more discretion to the Planning and Zoning Commission
and clarify some of the guidelines used in the Code. The changes are generally a
revision to the list of requirements that the Planning and Zoning Commission must find
are being met prior to granting a conditional use.
RECOMMENDATION:
Approval of Ordinance 117-03 (Amended) as submitted.
PLANNING AND ZONING COMMISSION
RECORD OF ACTION
DECEMBER 4, 2003
CITY OF DUBLIN,.
Division of Planning
°i~800 Shier-Rings Road
lip, Ohio 43016-1236
PhSn~/TDD:614-410-4600
Fax: 614-410-4747
Web Site: www.dublin.eh.us
The Planning and Zoning Commission took the following action at this meeting:
3. Code Amendment 03-132ADM -Conditional Use Procedure
Request: Review and approval of a Code amendment under the provisions of Section
153.236.
Applicant: City of Dublin, c/o Jane Brautigam, 5200 Emerald Parkway, Dublin, Ohio
43017.
Staff Contact: Gary P. Gundennan, Assistant Planning Director and Mitch Banchefsky,
Assistant Law Director
MOTION: To approve this Code amendment because the development of a new ordinance for
conditional uses will provide abetter basis for decisions, will better define and clarify
administrative procedures for conditional uses, will improve the ability of the general public to
understand the City Code, and will provide a better match between the issues presented in most
conditional use applications and the legal ability to address these issues,
changing Section 1(C)(7) to read:
The proposed use will not involve uses, activities, processes, materials, equipment and
conditions of operation, including hart not limited to, hours of operation, that will be detrimental
to any persons, property, or the general welfare by reason of excessive production of traffic,
noise, smoke, fumes, glare, odor or other characteristic not comparable to the uses permitted in
the base zoning district.
and changing Section 3(F) to read:
(F) Conditional use permit. A certificate of zoning compliance may be issued only for an
approved conditional use within the period of one year from the date of final approval by the
Planning and Zoning Commission. The right to such certificate of zoning compliance shall
expire after this orae near period.
VOTE: 7-0.
RESULT: This Code amendment with changes was approved. It will be forwarded to City
Council with a positive recommendation.
STAFF CERTIFICATION
Frank A.Ciarochi
Acting Planning Director
Dublin Planning and Zoning Commission
Staff Report -December 4, 2003
Page 8
3. Code Amendment 03-132ADM -Conditional Use Procedure
Request: Review and approval of a Code amendment under the provisions of Section
153.236.
Applicant: City of Dublin, c/o Jane Brautigam, 5200 Emerald Parkway, Dublin, Ohio
43017.
Staff Contact: Gary P. Gunderman, Assistant Planning Director and Mitch Banchefsky,
Assistant Law Director
BACKGROUND:
As a result of direction given by the Planning and Zoning Commission at both an administrative
meeting and following a Conditional Use case review last spring, the City legal staff has
reviewed the current Conditional Use ordinance. A memorandum on this topic was made
available to the Planning and Zoning Commission last spring. Direction from the Commission
and Council to legal staff was to draft an amended ordinance that addressed the issues outlined
by legal staff in the memorandum. As a result, legal staff has drafted a revised Section 153.236
Procedure for Authorizing a Conditional Use. This revised ordinance defines the standards
and criteria by which the Planning and Zoning Commission will review all Conditional Uses.
Attached is the Draft Ordinance that received its first reading at City Council on October 14 and
copies of the memorandum presented by legal staff earlier this year. City Planning Staff has
reviewed the draft ordinance and only very minor changes were made as a result. These changes
were incorporated into the first reading at City Council.
Assistant Law Director Mitch Banchefsky will present the revised ordinance.
STAFF RECOMMENDATION:
Staff recommends approval of the draft ordinance as presented.
Bases:
1) The development of a new ordinance for Conditional Uses will provide a better bases for
decisions when compared to current Court decision on Conditional Uses in Ohio.
2) The proposed Code will better define and clarify administrative procedures for
Conditional Uses, as well as improve the ability of the general public to understand the
City Code.
3) The proposed Code revisions will provide a better match between the issues presented in
most Conditional Use applications and the City's desire and legal ability to address these
issues.
Dublin Planning and Zoning Commission
Minutes -December 4, 2003
Page 9
3. Code Amendment 03-132ADM -Conditional Use Procedure
Mitch Banchefsky said the criteria for conditional uses are set forth in Section 153.236. They are
also heavily regulated by the 10th District Court of Appeals' decision regarding a decision made
by the City of Gahanna which involved an almost identical request. He said it took away a lot of
the Commission's discretion. Under the existing code, there are three criteria for approval of a
proposed conditional use and the applicable development standards in the zoning ordinance are
met, the proposed development is in accord with appropriate plans for the area; and the proposed
development will still be in keeping with the existing land use character and physical
development potential of the area. Mr. Banchefsky said under Action by the Planning
Commission, the proposed language states that the Commission shall hold a public hearing and
shall not approve a conditional use unless it finds that such use at the proposed location meets all
of the following requirements. The Commission has the discretion particularly as it relates to
neighborhood issues and lease issues.
Ms. Boring appreciated Mr. Banchefsky working on this to give the Commission more authority.
She suggested that what happened after the Certificate of Zoning Compliance expired be spelled
out in the Code. Mr. Banchefsky said he would create the language.
Ms. Boring referred to section 1, point 7 and asked that the words: including, but not limited
to... be added. Mr. Banchefsky agreed.
Mr. Sprague referred to section 13, point 2: To determine whether any modification can be made
to the use. He said he understood the thrust there, and thought it very equitable as far as the
applicant goes, but he was concerned that it put him in a position where we're going to have to be
very contemplated of all future uses potentially. He perceived a situation where they could think
of a number of items as far as mediation or militating against undesirable effects or additional
verbiage, but they might not think of every single one. They would have to think of
everything. He thought that should be the requirement. He thought something might be missed.
Mr. Banchefsky understood the point, but needed to think about how to word it.
Mr. Sprague wanted to be fair to the applicant. He felt the Commission should attempt to be
reasonably contemplating the various options, but not be placed in a position to have to think of
all possible scenarios.
Mr. Banchefsky did not think that was in the actual amended section. Ms. Boring said it was in
the current Code. Mr. Gerber said it was under the current Code section and in the ordinance.
Mr. Saneholtz asked if it wasn't that based upon the case law that in this area where the court
said that the planning commission cannot just arbitrarily disregard a conditioned use. If, in fact,
it does not meet even our new standards, that we have some obligation to consider modifications
to the project...not come up with solutions, but to at least consider modifications that might
create enough merit for the project that then we could actually agree that it did, in fact, meet the
new statute of criteria.
Mr. Banchefsky said it is an element of reasonableness, and that is particularly inherent with
conditional uses. One of the rules we had which obviously gave the Commission more
discretion takes the Commission out from what it thinks may not have been the most well-
Dublin Planning and Zoning Commission
Minutes -December 4, 2003
Page 10
reasoned opinion regarding the Gahanna case which was Dublin's ordinance. He said Mr.
Sprague's point was well taken and that that type of analysis will need to continue.
Mr. Sprague asked if a two-part analysis could still be used. Mr. Banchefsky said that it would
be like an approval with conditions which is almost always done now.
Mr. Messineo if Number 7: ...that will be detrimental to any persons, property... and meant if
it's detrimental to one person, that the conditional use can be disapproved. Mr. Banchefsky said
it could. Mr. Messineo asked if it could be disapproved, even if it may be great for 99 others.
Mr. Banchefsky said yes, but it doesn't mean it has to be.
Mr. Messineo then referred to Number 8:...so designed as not to create interference with traffic
on surrounding... He asked what interference? Mr. Banchefsky said unreasonable interference
is implied, but it could be added if the Commission wanted.
Ms. Reiss asked if this ordinance is approved by Council, how will it apply to past zonings with
conditional uses specified. Mr. Banchefsky said it would not apply. It would be prospective. It
would apply after it's enacted and in effect, then it applies to the applications after that date.
Mr. Messineo said this Commission is the determining body of what the words detrimental,
harmonious, and interference mean.
Mr. Gerber said they have being working on this project for a long time and it is now perfect. He
appreciated the help Mr. Banchefsky provided. Ms. Readler was also involved.
Mr. Gerber made the motion to approve this Code Amendment amending section 1, paragraph 7
so that what happened after a Certificate of Zoning Compliance expired was included, and
adding to section 3, paragraph F: .„.including, but not limited to... Mr. Zimmerman seconded
the motion and the vote was as follows: Ms. Boring, yes; Mr. Sprague, yes; Mr. Saneholtz, yes;
Mr. Messineo, yes; Ms. Reiss, yes; Mr. Zimmerman, yes; and Mr. Gerber, yes. (Approved 7-0.)
Mr. Gerber thanked Ms. Readler. He said this is a great tool, and hopefully, Council can act on
this as quickly as possible.
SCHOTTENSTEIN
ZOX & D U N N ~a_,~~A
MEMORANDUM
TO: Jane Brautigam, City Manager
Dublin City Council
Dublin Planning and Zoning Commission
Frank Ciarochi, Assistant City Manager/Director of Development
Barbara Clarke, Planning Director
FROM: Stephen Smith, Law Director
Mitchell Banchefsky, Assistant Law Director
Jennifer Readier
DATE: May 15, 2003
RE: Conditional Uses
I. Introduction
The Planning and Zoning Commission, pursuant to the Dublin Code, has been
given the responsibility of reviewing conditional use requests. The standards for
granting conditional uses are set forth in the Dublin Code, but the manner in which
conditional uses must be considered is dictated to a great extent by case law. At the
Planning and Zoning Commission Administrative Workshop held on April 8, 2003, the
Commission requested this office to draft a memorandum detailing the procedures
governing the review of conditional use requests. Pursuant to that request, we have
composed the following opinion.
II. Discussion of Conditional Uses in General
Conditional uses are uses that may have a significant impact and thus require an
administrative hearing for approval. Although the issuance of a conditional use permit is
not a matter of right in the same sense that a permitted use is, a municipality cannot
arbitrarily deny a property owner's conditional use application simply because the use is
no longer considered desirable. Kabatek v. City of North Royalton City Council, 1998
WL 6952, No. 71942 (8th Dist. Ct. App., Cuyahoga, 1-8-98). A conditional use's
compatibility in any particular area depends upon surrounding circumstances. The
grant or denial of a conditional use permit will turn on the specific facts of the particular
case. Community Concerned Citizens, Inc. v. Union Twp. Bd. of Zoning Appeals, 66
Ohio St.3d 452 (1993).
Cities are not free to disregard their ordinances where they do not really want a
particular use. In Gillespie v. City of Stow, an appeals court heard an appeal from the
Dublin Planning and Zoning Commission
Staff Report -December 4, 2003
Page 10
court of common pleas regarding a city council's administrative decision to deny a
conditional zoning certificate.' The court of appeals reasoned that, because the city
council's decision in reviewing the conditional use permit request was an administrative
and not a legislative act, the council was not permitted to deny the request simply
because the council no longer wanted the conditionally permitted use in the proposed
location. While the appeals court stated that a conditional use was not a matter of right,
it added that the "decision to deny such a certificate must not be unconstitutional,
arbitrary, unreasonable, or illegal." It said that allowing the denial of a reasonable
conditional use request would in effect amount to rezoning.
There is also a case from the Tenth District Court of Appeals (Franklin County)
involving the City of Gahanna that sets negative precedent for conditional use review
because it requires additional steps that a municipality must complete prior to denying a
conditional use permit request. Rocky Point Plaza Corp. v. Gahanna Board of Zoning
Appeals, 86 Ohio App.3d 486 (1993). In that case, Rocky Point requested a conditional
use permit from the Gahanna Planning and Zoning Commission ("the Commission") to
build an automobile service facility and tire store. The Commission denied the request
and the applicant then appealed the decision to the Gahanna Board of Zoning Appeals
("BZA"), which also denied the request. Rocky Point then proceeded to appeal the
decision to the Franklin County Common Pleas Court, which upheld the BZA's decision.
Rocky Point then pursued an appeal to the Court of Appeals (Ohio Revised Code
Section 2506 administrative appeal).
The court of appeals was troubled by the manner in which the Gahanna
Commission and the BZA conducted the conditional use hearings. The court noted that
no witnesses were sworn, which is required for administrative hearings. Additionally, no
evidence was adduced at the hearing -only statements were made.
The court then addressed the standard of review employed by the Commission.
The standards for approving, approving with modifications and disapproving conditional
uses in the Gahanna Code are very similar to those used in the Dublin Code. The
Gahanna standards were as follows:
Approval. The Planning Commission shall approve an application for a
conditional use if the following four conditions are met:
• The proposed use is a conditional use of the zoning district, and the
applicable development standards established in this Zoning Ordinance are
met;
• The proposed development is in accord with appropriate plans for the area;
• The proposed development will not have undesirable effects on the
surrounding area;
• The proposed development will be in keeping with the existing land use
character and physical development potential of the area.
~ . 65 Ohio App 3d 601 584 N.E.2d 1280 (Summit 1989), appeal dismissed, 51 Ohio St.3d 707.555 N.E.2d 3l6
(1990), appeal after remand, 1991 WL 16012, No. 14690 (9th Dist. Ct. App., Summit, 2-6-91).
Dublin Planning and Zoning Commission
Staff Report -December 4, 2003
Page 11
The Dublin Code is practically identical to this section, except the criterion stating
"The proposed development will not have undesirable effects on the surrounding area"
is not listed in the Dublin. Code.
In the Rocky Point case the Commission made no affirmative finding as to the
existence or nonexistence of any of the four approval conditionals.
The court then discussed another section of the Gahanna Code, which provided:
Approval with modification. The Commission may approve, with modification,
an application for a conditional use if the proposed use is a conditional use of the
zoning district and the applicable development standards are met, but plot plan
modification is required:
• To be in accord with appropriate plans for the area; and
• To prevent undesirable effects on adjacent property and the surrounding
area.
Such modification may be a limitation on the extent or intensity of
development, a requirement for additional screening by fence or
landscaping, a change in the method of plan for lighting, control of access
or other conditions of development as may be required. Requirements
regarding the modification of plans or other appropriate actions shall be
stated with the reasons for each recommendation.
It is important to note that this section is virtually identical to the Dublin Code
section as well.
The court construed these two sections together as requiring the Commission to
first determine whether the application for a conditional use meets the requirements for
approval. If the application did not meet the requirements for approval, the Commission
was required to determine whether modifications could be made to accommodate the
use. Only then could the Commission proceed with disapproval.
The court remanded the case to the Gahanna BZA for an appropriate hearing.
As a result of this case and other relevant case law, the Dublin Planning and Zoning
Commission cannot proceed immediately to the disapproval criteria set forth in the
Code when considering a conditional use. Instead, the proposed use must first be
examined to see whether it would be acceptable with modifications. Amore detailed
summary of the steps that should be taken in reviewing conditional uses is set forth in a
following section.
III. Dublin Code Section Regarding Conditional Use Standards
Section 153.236 of the Dublin Code sets forth the standards for Conditional Use
approval, approval with modification and disapproval. Section 153.236 provides that the
Planning and Zoning Commission shall hold a public hearing and act on a conditional
use in one of the following ways:
Dublin Planning and Zoning Commission
Staff Report -December 4, 2003
Page 12
Approval. The Planning and Zoning Commission shall approve an application
for a conditional use if the following three conditions are met:
• The proposed use is a conditional use of the zoning district, and the
applicable development standards established in the zoning ordinance are
met.
The proposed development is in accord with appropriate plans for the
area.
• The proposed development will be in keeping with the existing land use
character and physical development potential of the area.
Approval with modification. The Planning and Zoning Commission may
approve with modification an application for a conditional use, if the proposed
use is a conditional use of the zoning district and the applicable development
standards are met, but plot plan modification is required:
• To be in accord with appropriate plans for the area; and
• To prevent undesirable effects on adjacent property and the surrounding
area.
Such modification may be a limitation on the extent or intensity of development, a
requirement for additional screening by fence or landscaping, a change in the
method or plan for lighting, control of access or other conditions of development
as may be required. Requirements regarding the modification of plans or other
appropriate actions shall be stated with the reasons for each recommendation.
Disapproval. The Planning and Zoning Commission shall only disapprove an
application for a conditional use for any one of the following reasons:
• The proposed use is not a conditional use of the zoning district, or the
applicable development standards are not and cannot be met.
• The proposed development is not in accord with appropriate plans of the
area.
• The proposed development will have undesirable effects on the
surrounding area and is not in keeping with the existing land use character
and physical development potential of the area.
As the foregoing demonstrates, if the conditional use meets the three
requirements for approval, it must be approved. However, these requirements
are fairly broad and subject to interpretation. Additionally, the Planning and
Zoning Commission is given significant discretion for disapproval as
h
Dublin Planning and Zoning Commission
Staff Report -December 4, 2003
Page 13
demonstrated by the above three factors for disapproval. Disapproval is justified
if any one of the three criteria is met.
These sections could always be amended to provide the Planning and Zoning
Commission more discretion with regard to conditional uses. There is an Ohio Supreme
Court case that discusses one way in which the Planning and Zoning Commission could
gain more discretion. In Community Concerned Citizens, Inc. v. Union Twp. Bd. of
Zoning Appeals, 66 Ohio St.3d 452 (1993), the applicant sought a conditional use
permit for a child care center. The Board of Zoning Appeals denied the request and
both the trial court and the appellate court upheld the Board's decision. The applicant's
argument basically was that because it could meet all the specific requirements for the
child care center use, the Board was required to grant the conditional use. Based on
language in the Townships zoning ordinance that the board shall give due regard to
the nature and condition of all adjacent uses and structures," the Court found that the
Board was bound by law to consider circumstances other than those listed in the Code.
Consequently, the applicant's ability to meet all specific conditional requirements was
not controlling, but was simply "one factor to be considered." Id. at 456.
Working with the Planning Department, we could draft suggested amendments to
the conditional use Code section that would permit the Planning and Zoning
Commission to exert a greater degree of discretion when considering conditional use
requests. For example, one modification could be to include the language "due regard
to the nature and condition of all adjacent uses and structures," which several courts
have used to permit municipalities to consider criteria outside of that enumerated in the
specific code.
IV. Recommendations for the Manner in Which the Planning and Zoning
Commission Should Proceed with Regard to Future Conditional Use
Applications Reviewed Under the Current Code Section Regarding
Conditional Uses.
The procedure that the Planning and Zoning Commission should follow when
considering conditional use requests, in order to comply with the case law cited in this
memorandum, is as follows.
• The Planning and Zoning Commission should first examine the application to
determine whether it complies with the approval criteria set forth in Section
153.236. If it does, approval should be forthcoming.
• If the application does not meet the approval criteria, the Planning and Zoning
Commission should examine the application to determine whether any
modifications could be made to the use to merit approval with those
conditions attached.
• If modifications can be made to the use that makes the use acceptable, the
Planning and Zoning Commission should ask the applicant whether the
applicant agrees with the conditions. If the applicant agrees, the conditional
use can be approved with the modifications. If the applicant refuses to
comply with the conditions, the Planning and Zoning Commission should
proceed to the disapproval criteria.
Dublin Planning and Zoning Commission _
Staff Report -December 4, 2003
Page 14
• If the application does not meet the criteria for approval and no modifications
can be made that will make the use acceptable, then the Planning and Zoning
Commission should proceed to the disapproval criteria in Section 153.236
and determine whether the application meets the disapproval criteria. If it
does, the Planning and Zoning Commission can deny the application.
V. Conclusion
As the foregoing discussion illustrates, planning commissions and city councils
are .given discretion in determining conditional use permits. However, in
exercising their discretion to review conditional use's, commissions cannot act in
an arbitrary or unreasonable manner.
Approval of a conditional use is not automatic for the applicant -the conditional
use must meet all of the standards in the Dublin Code before it can be approved.
This office, in cooperation with the Planning Department, could draft language
revising the conditional use section of the Dublin Code to provide the Planning
and Zoning Commission with more discretion. Please contact this office if you
would like us to proceed with such amendments. Additionally, please do not
hesitate to contact us if you have any questions regarding the foregoing
discussion.
AN ORDINANCE AMENDING SECTION 153.236 OF
THE DUBLIN CODIFIED ORDINANCES ENTITLED
"PROCEDURE FOR AUTHORIZING A CONDITIONAL USE"
WHEREAS, it is necessary from time to time to amend the Dublin Codified Ordinances; and
WHEREAS; Section 153.236 of the Dublin Codified Ordinances sets forth the application
procedures and standard of review for the approval and disapproval of conditional uses; and
WHEREAS, upon legal review of Section 153.236, it was recommended that the portions of
Section 153.236 pertaining to approval, approval with modifications and disapproval of
conditional uses should be amended to provide the Planning and Zoning Commission with the
most flexibility possible in reviewing conditional use requests; and
WHEREAS, the Planning and Zoning Commission concurs that the portions of Section 153.236
pertaining to approval, approval with modifications and disapproval of conditional uses should
be amended; and
WHEREAS, the Planning and Zoning Commission reviewed this proposed amendment on
2003, and recommends its adoption;
NOW, THEREFORE, BE IT ORDAINED by Council of the City of Dublin, State of Ohio,
of the elected members concurring that:
Section 1. Section 153.236(C) of the Dublin Codified Ordinances is hereby repealed in its
entirety and replaced with the following:
(C) Action by the Planning Commission. The Planning and Zoning Commission shall hold a
public hearing and shall not approve a conditional use unless it finds that such use at the
proposed location meets all of the following requirements:
(1) The proposed use will be harmonious with and in accordance with the general
objectives, or with any specific objective or purpose of the Zoning Code and/or
Community Plan.
(2) The proposed use will comply with all applicable development standards, except
as speicifically altered in the approved conditional use.
(3) The proposed use will be harmonious with the existing or intended character of
the general vicinity and that such use will not change the essential character of the same
area.
(4) The use will not be hazardous to or have a negative impact on existing or future
surrounding uses.
(5) The area and proposed use(s) will be adequately served by essential public
facilities and services such as highways, streets, police, and fire protection, drainage
structures, refuse disposal, water and sewers, and schools; or that the persons or agencies
Dublin Planning and Zoning Commission
Staff Report -December 4, 2003 D~
Page 16
responsible for the establishment of the proposed use shall be able to provide adequately
any such services.
(6) The proposed use will not be detrimental to the economic welfare of the
community.
(7) The proposed use will not involve uses, activities, processes, materials, equipment
and conditions of operation, including hours of operation, that will be detrimental to any
persons, property, or the general welfare by reason of excessive production of traffic,
noise, smoke, fumes, glare, odor or other characteristic not comparable to the uses
permitted in the base zoning district.
(8) Vehicular approaches to the property shall be so designed as not to create
interference with traffic on surrounding public and/or private streets or roads.
(9) The proposed use will not be detrimental to property values in the immediate
vicinity.
(10) The proposed use will not impede the normal and orderly development and
improvement of the surrounding property for uses permitted in the district.
Section 2. Section 153.236(E) of the Dublin Codified Ordinances is hereby created and shall
provide as follows:
(E) Conditional use approval. Upon a favorable finding, the Planning and Zoning
Commission shall approve a conditional use application within 30 days following the public
hearing.
Section 3. Section 153.236(F) of the Dublin Codified Ordinances is hereby created and shall
provide as follows:
(F) Conditional use permit. A certificate of zoning compliance may be issued only for an
approved conditional use within the period of one year from the date of final approval by the
Planning and Zoning Commission.
Section 4. Section 153.236(G) of the Dublin Codified Ordinances is hereby created and shall
provide as follows:
(G) Building permit. A building permit may be obtained only for the development in
accordance with the approved plot plan.
Section 5. This Ordinance shall take effect on the earliest date provided by law.
Passed this day of , 2003.
Mayor -Presiding Officer
ATTEST:
Clerk of Council
PLANNING AND ZONING COMMISSION
RECORD OF ACTION
JUNE 5, 2003
..CITI` OF llUBLIN
Division of Planning
~t10 Shier-Rings Road
D ,Ohio 43016-1236
Phi, wDD: 614-410-4600
Fax:614-761-6566
Web Site: www.dublin.oh.us
The Planning and Zoning Commission took the following action at this meeting:
MOTION: That a recommendation be sent to City Council to amend the conditional use
language as outlined in the Law Director's memo dated May 15, 2003.
VOTE: 6-0.
RESULT: The Commission's recommendation will be forwarded to City Council to request a
Code amendment.
STAFF CERTIFICATION
Barbara M. Clarke
Planning Director
Dublin Planning and Zoning Commission
Minutes -June 5, 2003
Page 3
Ms. Boring asked about the Conditional Use memo from the Law Director on which the
Planning Commission was copied. It recommended tightening up the Code. Ms. Clarke said the
Law Director's office will be drafting a revision to the Code.
Mr. Banchefsky said he was awaiting direction from the Commission and City Council on
whether to move forward with Code amendments. He said the issue is how the Court of Appeals
has decided that a conditional use must be considered. There are five criteria in Dublin's code,
but the Court ruled that the Commission must investigate ways to mitigate any negative impact
of the conditional use. If there are mitigating measures, the presumption is that the Commission
has to approve it. This concerned a Gahanna case that had Code language quite similar to
Dublin's. He said the memo stated that Dublin is bound by that decision, and the Law Director's
office was asking what should be considered. He suggested sending a recommendation to
Council to amend the conditional use language in accordance with the Law Director's memo.
Mr. Saneholtz had not been able to study this memo as yet. Mr. Gerber said it should be
discussed on June 19. Ms. Boring said a recommendation should be made tonight.
Mr. Zimmerman said in the Gahanna, the Court of Appeals noted. that no witnesses were sworn.
Dublin is also lacks this. This might tighten up the administrative reviews. Mr. Banchefsky said
this dove-tailed into the discussion on the Commission Rules and Regulations.
Mr. Saneholtz supported Ms. Boring's position. Mr. Banchefsky said he needs Council's
endorsement before starting work. The Commission will review it after the first reading.
Mr. Boring made a motion to recommend that the Law Director's office begin tightening up and
refining Dublin's conditional use section, based on the Court actions, the Law Director's memo,
and the Commission's actions in approving conditional uses.
Mr. Messineo said the memo would change the approval process to include assessment of the
adjacent development. He said "adjacent property" needed to be better defined.
Mr. Gerber seconded the motion, and the vote was unanimous in favor. (Approved 6-0.)