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The proposed text amendment clarifies existing provisions
related to the expiration of administrative permits, special
permits and special exceptions. It also provides for the
expiration of special permit and special exception uses that
have ceased operating for a period of two years or longer.
Clarifications
One clarification proposed is to move language related to
the expiration of permits from a section on the revocation
of permits to the section on expiration of permits.
Staff is also suggesting a clarification to the rules
regarding expiration of permits where uses were never
started. Section 5-014 of the Zoning Ordinance states that
the activity authorized by a special permit or special
exception must be “established and construction
authorized shall be diligently pursued within such time as
the permit specified, or, if no such time has been
specified, then within one (1) year after the effective date
of such permit or exception.” Public uses are exempt
from the one-year expiration requirement. While the
language states that the use must be established and
construction diligently pursued within one year, it is often
problematic to do both in cases where a building is being
built or where another significant approval process is
required before the use can begin. A use can hardly be
established before the building is approved and built, and
therefore more time is needed in these cases. In other
cases, such as floodplain crossing special exceptions, the
lengthy process for revising the floodplain through FEMA
often follows the special exception approval making it
impossible for construction to commence within one year.
Staff is suggesting the language be modified so that the
expiration will not occur if the use is established or
construction is diligently pursued within one year; this
revised language is consistent with how the provision has
been applied.
Expiration After Cessation of Activity
The major change proposed with this amendment is to
establish that a special permit or special exception use,
once established, will expire after any two-year period of
inactivity. This issue of expirations was recently brought
to staff’s attention because of a request for Zoning
Administrator interpretation related to the Linden Quarry,
which is actually two quarries on adjoining properties with
associated asphalt and concrete plants, approved by special
exception in the 1950s and 1970s. All operations at the
facilities ceased in 1988. The owners requested an
interpretation as to whether the Quarry could resume
operations without approval of a new special exception. As
detailed in the attached interpretation (Attachment 2), the
conclusion reached by the Zoning Administrator was that no
approvals are required to restart the operations under the
existing language of the ordinance. This conclusion was
based largely on Section 5-015 of the Zoning Ordinance,
which specifically states that
a Special Exception “shall be
valid for an indefinite period of time” unless an expiration
date is specified in the approvals. In the Linden Quarry
case, no expiration dates were specified.
Special Permit and Special Exception Uses, by definition,
are those with potentially greater impacts than by-right
uses. The Special Permit/Special Exception process provides
an opportunity for nearby residents to discuss their
concerns about a proposed use and allows the County to
impose conditions on the use to control potential impacts.
If significant time has passed since a use has operated, it
may be reasonable to re-evaluate the restart of the use
through a new Special Permit/Special Exception process. The
language proposed would establish that permits expire after
a two-year period of inactivity unless a condition of
approval specifically establishes otherwise. Unless the
zoning has changed since the original approval, the
opportunity for the use to be re-established through the
Special Permit/Special Exception process would always be
available. As drafted, the expiration provision would
apply to existing approvals as well as new approvals.
Process
The Planning Commission initiated this text amendment on
November 29, 2007 and held a public hearing and unanimously
recommended approval of the amendment on January 31, 2008.
The Board of Supervisors held a public hearing on the item
on March 13, 2008 but did not take action; because of an
advertising error the item was readvertised and the hearing
left open until April 10, 2008.
Two issues were raised at the April hearing. One, the Board
asked for language to clarify that a use could build-out
under a permit in a period longer than two years. The
following additional language has been added to Section
5-104.1 to address this issue:
Where an approval
authorizes a specific category of uses that may be phased in
over time, if any portion of the use category is commenced
within the one year period, there shall be no time limit on
the continued expansion or addition.
Second, there was a question of how this language affects
public uses. Per the opening language of Section 5-014.1,
public uses are exempt from expiration rules, and therefore
this amendment does not affect public uses. |