Loading...
117-03 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; I 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 Section 153.236(C) of the Dublin Codified Ordinances is hereby repealed in II its entirety and replaced with the following: (C) Action by the Planning Commission.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 ~I 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. I Section 4. Section 153.236(G) of the Dublin Codified Ordinances is hereby created and shall provide as follows: ~ i (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. i Mayor -Presiding Officer ; r i ATTEST: I 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 I I ~I De Clerk of Council, Dublin, Ohio it 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.)