11-814

11-814. Rezoning; conditional zoning change;
notice; hearing; citizen review; definition

(Eff. 10/1/11)

A. All rezonings adopted under this article shall be consistent with and conform to
the adopted comprehensive plan. In the case of uncertainty in constructing or applying
the conformity of any part of a proposed rezoning to the adopted comprehensive plan, the
rezoning shall be construed in a manner that will further the implementation of, and not
be contrary to, the goals, policies and applicable elements of the comprehensive plan. A
rezoning conforms with the comprehensive plan if it proposes land uses, densities or
intensities within the range of identified uses, densities and intensities of the
comprehensive plan.

B. A property owner or authorized agent of a property owner desiring a rezoning
shall file an application for the rezoning.

C. The commission, on its own motion, may propose a rezoning and, after holding a
public hearing as required by this chapter, may transmit the proposal to the board, which
shall proceed as prescribed in this chapter for any other rezoning.

D. On receipt of the application the board shall submit the application to the
commission for a report. Before reporting to the board, the commission shall hold at
least one public hearing after giving at least fifteen days' notice of the hearing by one
publication in a newspaper of general circulation in the county seat and by posting of
the area included in the proposed rezoning. If the matter to be considered applies to
territory in a high noise or accident potential zone as defined in section 28-8461, the
notice shall include a general statement that the matter applies to property located in
the high noise or accident potential zone. The posting shall be in no less than two
places with at least one notice for each quarter mile of frontage along perimeter public
rights-of-way so that the notices are visible from the nearest public right-of-way. The
commission shall also send notice by first class mail to each real property owner as
shown on the last assessment of the property within three hundred feet of the proposed
rezoning and each county and municipality that is contiguous to the area of the proposed
rezoning. In proceedings involving rezoning of land that is located within territory in
the vicinity of a military airport or ancillary military facility as defined in section
28-8461, the commission shall send copies of the notice of public hearing by first class
mail to the military airport. The notice sent by mail shall include, at a minimum, the
date, time and place of the hearing on the proposed rezoning including a general
explanation of the matter to be considered, a general description of the area of the
proposed rezoning, how the real property owners within the zoning area may file approvals
or protests of the proposed rezoning, and notification that if twenty per cent of the
property owners by area and number within the zoning area file protests, an affirmative
vote of three-fourths of all members of the board will be required to approve the
rezoning. In proceedings that are initiated by the commission involving rezoning, notice
by first class mail shall be sent to each real property owner, as shown on the last
assessment of the property, of the area to be rezoned and all property owners, as shown
on the last assessment of the property, within three hundred feet of the property to be
rezoned.

E. If the commission or hearing officer has held a public hearing, the board may
adopt the recommendations of the commission or hearing officer through use of a consent
calendar without holding a second public hearing if there is no objection, request for
public hearing or other protest. If there is an objection, a request for public hearing
or a protest, the board shall hold a public hearing at least fifteen days' notice of
which shall be given by one publication in a newspaper of general circulation in the
county seat and by posting the area included in the proposed rezoning. In counties with
territory in the vicinity of a military airport or ancillary military facility as defined
in section 28-8461, the board shall hold a public hearing if, after notice is mailed to
the military airport pursuant to subsection D of this section and before the public
hearing, the military airport provides comments or analysis concerning the compatibility
of the proposed rezoning with the high noise or accident potential generated by military
airport or ancillary military facility operations that may have an adverse impact on
public health and safety, and the board shall consider and analyze the comments or
analysis before making a final determination. After holding the hearing the board may
adopt the rezoning, but if twenty per cent of the owners of property by area and number
within the zoning area file a protest to the proposed rezoning, the change shall not be
made except by a three-fourths vote of all members of the board. If any members of the
board are unable to vote on the question because of a conflict of interest, the required
number of votes for the passage of the question is three-fourths of the remaining
membership of the board, except that the required number of votes in no event shall be
less than a majority of the full membership of the board. In calculating the owners by
area, only that portion of a lot or parcel of record situated within three hundred feet
of the property to be rezoned shall be included. In calculating the owners by number or
area, county property and public rights-of-way shall not be included.

F. The board of supervisors shall adopt by ordinance a citizen review process that
applies to all rezoning and specific zoning plan applications that require a public
hearing. The citizen review process shall include at least the following requirements:

1. Adjacent landowners and other potentially affected citizens will be notified of
the application.

2. The county will inform adjacent landowners and other potentially affected
citizens of the substance of the proposed rezoning.

3. Adjacent landowners and other potentially affected citizens will be provided an
opportunity to express any issues or concerns that they may have with the proposed
rezoning before the public hearing.

G. The rezoning or subdivision plat of any unincorporated area completely
surrounded by a city or town shall use as a guideline the adopted general plan and
standards as prescribed in the subdivision and zoning ordinances of the city or town
after April 10, 1986.

H. The board or commission, before taking any action on a rezoning or subdivision
plat in an area as prescribed in subsection G of this section, may require the affected
city or town to supply information to allow the county to meet the guideline. If an
affected city or town objects to any such proposed action the board or commission shall
prescribe in the minutes of the meeting specific reasons why in its opinion the guideline
is actually being followed or why it is not practicable to follow the guideline of the
general plan.

I. The board may approve a change of zone conditioned on a schedule for development
of the specific use or uses for which rezoning is requested. If at the expiration of this
period the property has not been improved for the use for which it was conditionally
approved, the board after notification by certified mail to the owner and applicant who
requested the rezoning shall schedule a public hearing to grant an extension, determine
compliance with the schedule for development or cause the property to revert to its
former zoning classification.

J. The legislature finds that a rezoning of land that changes the zoning
classification of the land or that restricts the use or reduces the value of the land is
a matter of statewide concern. Such a change in zoning that is initiated by the governing
body or zoning body shall not be made without the express written consent of the property
owner. In applying an open space element or a growth element of a comprehensive plan, a
parcel of land shall not be rezoned for open space, recreation, conservation or
agriculture unless the owner of the land consents to the rezoning in writing. For the
purposes of this subsection, rezoning does not include the creation or expansion of
overlay zones solely for the purpose of implementing airport safety and protection.
Rezoning also does not include the redesignation of areas of the county to which the
residential provisions of the county building codes apply or do not apply. The county
shall not adopt any change in a zoning classification to circumvent the purpose of this
subsection.

K. Notwithstanding title 19, chapter 1, article 4, a decision by the governing body
involving rezoning of land that is not owned by the county and that changes the zoning
classification of the land may not be enacted as an emergency measure and such a change
shall not be effective for at least thirty days after final approval of the change in
classification by the board. Unless a resident files a written objection with the board
of supervisors, the rezoning may be enacted as an emergency measure that becomes
effective immediately by a four-fifths majority vote of the board for those counties with
five or more supervisors or a two-thirds majority vote of the board for those counties
with less than five supervisors.

L. For the purposes of this section, "zoning area" means the area within three
hundred feet of the proposed amendment or change.