Administrative procedures for zoning ordinance, chapter and zoning map amendment
(a) Receipt of application. An application to adopt, amend or repeal a zoning ordinance or zoning map or this chapter shall be submitted to the town clerk. Immediately upon receipt of the proposal, the town clerk shall refer the proposal to the town council and to the planning commission for study and recommendation. The planning commission shall, in turn, notify and seek the advice of the department of planning and development and shall report to the town council within 45 days after receipt of the proposal giving its findings and recommendations as prescribed in subsection (b) of this section. Where a proposal for adoption, amendment or repeal of a zoning ordinance or zoning map or section of this chapter is made by the planning commission, the requirements for study by the commission may be waived, provided that the proposal by the planning commission includes its findings and recommendations pursuant to subsection (b) of this section. The town council shall hold a public hearing within 65 days of receipt of a proposal, giving proper notice as prescribed in subsection (c) of this section. The town council shall render a decision on any proposal within 45 days after the date of completion of the public hearing. Unless otherwise conditioned, the amendment of the zoning ordinance, this chapter or zoning map shall become effective upon passage by the town council. The subsections of this section pertaining to deadlines shall not be construed to apply to any extension consented to by an applicant.
(b) Review by planning commission. Among its findings and recommendations to the town council with respect to a proposal for adoption, amendment or repeal of a zoning ordinance, section of this chapter or zoning map, the planning commission shall:
(1) Include a statement on the general consistency of the proposal with the comprehensive plan, including the goals and policies statement, the implementation program, and all other applicable elements of the comprehensive plan; and
(2) Include a demonstration of recognition and consideration of each of the applicable general purposes of zoning, as presented in section 21-4.
(c) Notice and hearing requirements. Requirements for notice and hearing shall be as follows:
(1) No zoning ordinance or section of this chapter shall be adopted, repealed or amended until after a public hearing has been held upon the question before the town council. The town council shall first give notice of the public hearing by publication of notice in a newspaper of general circulation within the town at least once each week for three successive weeks prior to the date of the hearing, which may include the week in which the hearing is to be held, at which hearing opportunity shall be given to all persons interested to be heard upon the matter of the proposed ordinance. Written notice, which may be a copy of the newspaper notice, shall be mailed to the associate director of the division of planning of the state department of administration and, where applicable, to the parties specified in subsections (c)(2) through (c)(5) of this section at least two weeks prior to the hearing. The newspaper notice shall be published as a display advertisement, using a type size at least as large as the normal type size used by the newspaper in its news articles, and shall:
a. Specify the place of the hearing and the date and time of its commencement;
b. Indicate that adoption, amendment or repeal of a zoning ordinance is under consideration;
c. Contain a statement of the proposed amendments to the ordinance that may be printed once in its entirety or that summarizes and describes the matter under consideration;
d. Advise those interested where and when a copy of the matter under consideration may be obtained or examined and copied; and
e. State that the proposals shown thereon may be altered or amended prior to the close of the public hearing without further advertising, as a result of further study or because of the views expressed at the public hearing. Any alteration or amendment must be presented for comment in the course of the hearing.
(2) Where a proposed general amendment to an existing zoning ordinance includes changes in an existing zoning map, public notice shall be given as required by subsection (c)(1) of this section.
(3) Where a proposed amendment to an existing ordinance includes a specific change in a zoning district map, but does not affect districts generally, public notice shall be given as required by subsection (c)(1) of this section, with the additional requirements that:
a. Notice shall include a map showing the existing and proposed zoning district boundaries, existing streets and roads and their names, and the town boundaries where appropriate; and
b. Written notice of the date, time and place of the public hearing and the nature and purpose thereof shall be sent to all owners of real property whose property is located in or within not less than 200 feet of the perimeter of the area proposed for change, whether within the town or within an adjacent city or town. The notice shall be sent by certified mail to the last known address of each owner, as shown on the current real estate tax assessment records of the town.
(4) Notice of a public hearing shall be sent by first class mail to the city or town council of any city or town to which one or more of the following pertain:
a. Which is located in or within not less than 200 feet of the boundary of the area proposed for change; or
b. Where there is a public or quasipublic water source or private water source that is used or is suitable for use as a public water source, within 2,000 feet of any real property that is the subject of a proposed zoning change, regardless of municipal boundaries.
(5) Notice of a public hearing shall be sent to the governing body of any state or municipal water department or agency, special water district or private water company that has riparian rights to a groundwater or surface water resource and/or surface watershed that is used or is suitable for use as a public water source and that is within 2,000 feet of any real property which is the subject of a proposed zoning change; provided, however, that the governing body of any state or municipal water department or agency, special water district or private water company has filed with the building inspector in the town a map survey, which shall be kept as a public record, showing areas of surface water resources and/or watersheds and parcels of land within 2,000 feet thereof.
(6) No defeat in the form of any notice under this section shall render any ordinance or amendment invalid, unless the defect is found to be intentional or misleading.
(7) Costs of any notice required under this section shall be borne by the applicant.
(8) In granting a zoning ordinance amendment, notwithstanding the provisions of permitted uses in each zoning district, the town council may limit the change to one of the permitted uses in the zone to which the subject land is rezoned and impose such limitations, conditions and restrictions, including, without limitation, the following:
a. Requiring the petitioner to obtain a permit or approval from any and all state or local governmental agencies or instrumentalities having jurisdiction over the land and use which are the subject of the zoning change;
b. Those relating to the effectiveness or continued effectiveness of the zoning change; and/or
c. Those relating to the use of the land as it deems necessary.
The town clerk shall cause the limitations and conditions so imposed to be clearly noted on the zoning map and recorded in the land evidence records; provided, however, for a conditional zone change, the limitations, restrictions and conditions shall not be noted on the zoning map until the zone change has become effective. If the permitted use for which the land has been rezoned is abandoned or if the land is not used for the requested purpose for a period of two years or more after the zone change becomes effective, the town council may, after a public hearing as set forth in this section, change the land to its original zoning use before the petition was filed. If any limitation, condition or restriction in an ordinance is held to be invalid by a court in any action, that holding shall not cause the remainder of the ordinance to be invalid.
The requirements of this subsection are to be construed as minimum requirements.
(d) Appeals of town council decision. Procedures for appeals of town council decisions are as follows:
(1) An appeal of an enactment of or an amendment to a zoning ordinance may be taken to the county superior court by filing a complaint, as set forth in this section, within 30 days after the enactment or amendment has become effective. The appeal may be taken by an aggrieved party or by a legal resident or landowner of the town or by any association of residents or landowners of the town. The appeal shall not stay the enforcement of the zoning ordinance, as enacted or amended, but the court may, in its discretion, grant a stay on appropriate terms, which may include the filing of a bond, and make such other orders as it deems necessary for an equitable disposition of the appeal.
(2) The complaint shall set forth with specificity the area in which the enactment or amendment does not conform with the comprehensive plan and/or the manner in which it constitutes to taking of private property without just compensation.
(3) The review shall be conducted by the court without a jury. The court shall first consider whether the enactment or amendment of the zoning ordinance is in conformance with the comprehensive plan. If the enactment or amendment is not in conformance with the comprehensive plan, the court shall invalidate the enactment or the amendment or those parts of the amendment that are not in conformance with the comprehensive plan. The court shall not revise the ordinance to conform with the comprehensive plan, but may suggest appropriate language as part of the court decision.
(4) If there is an aggrieved party, where the court has found that the enactment or amendment of the zoning ordinance is in conformance with the comprehensive plan, the court shall next determine whether the enactment or amendment works as a taking of property from the aggrieved party. If the court determines that there has been a taking, the court shall remand the case to the town council, with its findings that a taking has occurred, and order the town to either provide just compensation or rescind the enactment or amendment within 30 days.
(5) The superior court shall retain jurisdiction, if the aggrieved party and the town do not agree on the amount of compensation, in which case the superior court shall hold further hearings to determine and to award compensation. Furthermore, the superior court shall retain jurisdiction to determine the amount of an award of compensation for any temporary taking, if that taking shall exist.
(6) The court may, in its discretion, upon motion of the parties or on its own motion, award reasonable attorney's fees to any party to an appeal, as set forth in this section, including the town.
(Ord. No. 94-12, § 1, 6-27-1994; Ord. No. 94-18, § 1, 10-17-1994; Ord. No. 01-1, § 5, 2-12-2001; Ord. No. 07-02, § 3, 2-5-2007)