Q-2 EXCEPTIONS AND ENCROACHMENTS

Q-2-101 REQUIREMENT FOR CONFORMING STRUCTURES TO HEIGHT LIMITATIONS

Any structure hereafter erected or altered shall comply with the height limitations of the district in which it is located except as specified in this chapter.

Q-2-102 CERTAIN APPURTENANCES MAY EXCEED HEIGHT LIMITATIONS – EXCEPTIONS

The following appurtenances may exceed the prescribed height limit provided they are normally required for use permitted in the district in which they are erected or constructed; flagpoles, chimneys, cooling towers, elevator bulkheads, belfries, penthouses for other than living purposes, grain elevators, stacks, silos, storage towers, observation towers, ornamental towers, monuments, cupolas, domes, spires, standpipes, and other necessary mechanical appurtenances and their protective housing; provided, however, that any of the above, except flagpoles and chimneys when located in any district with a height limit of forty (40) feet or less, shall be allowed only upon a finding of the Board of Adjustment and Appeals that such appurtenances will not be unduly detrimental to the surrounding property.

Q-2-103 CERTAIN ELECTRONIC TOWERS ALLOWED WITH PERMISSION OF BOARD OF ADJUSTMENT AND APPEALS

Radio, television, microwave and other electronic transmission or receiving towers in excess of height limits may be allowed in any district as a conditional use upon a finding by the Board of Adjustment and Appeals that topographic or other physical considerations make it necessary that they be located outside a district where they are permitted as a matter of right and that the proposed tower or towers will not be unduly detrimental to surrounding property.

Q-2-104 NO STRUCTURE ALLOWED WHICH EXCEEDS MAXIMUM LIMITS ESTABLISHED BY FAA RULES

No structure shall be erected in any district that exceeds the maximum height permitted under the rules of the Federal Aeronautics Administration.

Q-2-105 CERTAIN PUBLIC AND SEMI-PUBLIC BUILDINGS AND STRUCTURES ALLOWED TO EXCEED HEIGHT LIMITATIONS WITH PERMISSION OF BOARD OF ADJUSTMENT AND APPEALS

Public and semi-public buildings and structures such as hospitals, churches, sanitariums, schools, and water reservoir towers may exceed the height limits of the district in which they are located, provided that such buildings and structures shall provide at least one (1) additional foot of yard space on each side for each additional foot that such building or structure exceeds the specified height limit of the district in which it is located and further provided that a finding is made by the Board of Adjustment and Appeals that such additional height will not be materially detrimental to surrounding property.

Q-2-106 REQUIREMENT FOR CONFORMING BUILDINGS AND STRUCTURES TO YARD SPACE REGULATIONS

Any building or structure hereafter erected, altered, or established shall comply with the yard space requirements of the district in which it is located except as specified below. Any required yard space shall be open from thirty (30) inches above the ground to the sky except as specified herein.

Q-2-107 ALLOWABLE YARD SPACE ENCROACHMENTS FOR EAVES CORNICES, AND ARCHITECTURAL FEATURES.

Eaves, cornices, and projecting architectural features may extend two (2) feet into a required yard space, except that eaves may encroach three (3) feet into a yard space when such yard space is ten (10) feet or more in width. Steps may project into the required front yard no more than five (5) feet and railing no higher than thirty-six (36) inches.

Q-2-108 ALLOWABLE YARD SPACE ENCROACHMENTS FOR FIRE ESCAPES

Open fire escapes may extend into any required side or rear yard not more than five (5) feet.

Q-2-109 ALLOWABLE YARD SPACE ENCROACHMENTS FOR CHIMNEYS

Chimneys, when not more than four (4) feet wide, may extend two (2) feet into any required yard space.

Q-2-110 ALLOWABLE YARD SPACE ENCROACHMENTS FOR PORCHES, DECKS, AND TERRACES

Open uncovered porches, decks, or terraces no higher than the first floor above grade on the side or the rear of the building may encroach up to one-third (1/3) of the distance to the property line into the required side or rear yard.

Q-2-111 ALLOWABLE YARD SPACE ENCROACHMENTS FOR ACCESSORY BUILDING OR STRUCTURES

Accessory buildings or structures shall be permitted to occupy a required yard with the following restrictions:

A. No such accessory structure shall be greater than fifteen (15) feet in height nor be closer than twenty (20) feet from any zone lot fronting a public street.

B. An accessory structure may be constructed within three (3) feet of an inside lot line or alley line when the entire structure is not less than sixty (60) feet from the front line, and not less than six (6) feet from the principal building. The accessory building may be constructed less than sixty (60) feet from the front lot line if it is entirely to the rear of any principal building on the neighboring lot.

Q-2-112 CERTAIN AUTOMOBILE STORAGE GARAGES EXCEPTED FROM YARD SPACE REQUIREMENTS WITH PERMISSION OF BOARD OF ADJUSTMENT AND APPEALS

Automobile storage garages may be allowed as an exception to the required front or side yard only when such garage will be entirely below the grade of the lot and after a finding by the Board of Adjustment and Appeals that topographic conditions make such a location necessary, that such orientation will not create a hazard to automobile or pedestrian traffic in the street, and that such orientation will be in harmony with the character of development of the neighborhood.

Q-2-113 CERTAIN ONE-FAMILY DWELLINGS ALLOWED ON LOTS SMALLER THAN YARD SPACE REQUIREMENTS WITH PERMISSION OF BOARD OF ADJUSTMENT AND APPEALS

No dwelling may be erected on any lot, separately owned or under contract of sale, and containing, at the time of the passage of this chapter, an area or a width smaller than that required for a one-family dwelling, unless allowed by the Board of Adjustment and Appeals.

Q-2-114 REQUIREMENTS FOR WALLS, HEDGES, AND FENCES TO PROVIDE UNOBSTRUCTED VIEW AT INTERSECTIONS – EXCEPTIONS

Except in districts allowing the construction of buildings or structures to the property line, there shall be provided an unobstructed view across the triangle formed by joining points measured twenty (20) feet distant along the property line from the intersection of two (2) streets or fifteen (15) feet along both the street and alley line from the intersection of a street and an alley. Within said triangle there shall be no sight obscuring or partly obscuring walls, fence or foliage higher than thirty (30) inches above grade or, in the case of trees, foliage lower than eight (8) feet. Vertical measurement shall be made at the top of the curb on the street or alley adjacent to the nearest side of the triangle or if, no curb exists, from the edge of the nearest traveled way. This provision does not apply to chain link fences, on which no obstructions are attached thereto.

Q-2-115 REQUIREMENTS FOR HEDGES, FENCES AND FOLIAGE AT PLACES OTHER THAN INTERSECTIONS

On portions of a lot not covered by street or alley intersection restrictions, the height of fences of any length and foliage continuous for five (5) feet or more shall be limited to forty-two (42) inches on any street line which is designated a front yard and any adjacent front yard. Fences shall be limited to forty-two (42) inches on any adjacent side lot line from the front property line to the rear of any principal building. If the neighboring lot does not have an existing structure the fences and hedges shall be limited to forty-two (42) inches for the front fifty (50) feet. On all other portions of lot lines, fences, hedges, and continuous foliage, barriers may not exceed a height of eighty (80) inches. This provision does not apply to chain link fences, on which no obstructions are attached thereto.

Q-2-116 REQUIREMENTS FOR ACCESSORY BUILDINGS

Accessory buildings cannot exceed the size of the primary use of that zoning building or 1,500 square feet, whichever is less. The maximum height for an accessory building shall be the height of the primary structure or 18 feet, whichever is less.

Source: Ord. 823

Q-2-117 RULE OF MEASUREMENT FOR HEDGES AND FENCES

Heights of fences, hedges, and other continuous foliage shall be measured from the higher of the adjacent top of the street curb, surface of an alley, or the official established grade thereof. On inside lot lines the measurement shall be from the grade of the lot line.

Q-2-118 POWER OF BOARD OF ADJUSTMENT TO APPROVE OR REQUIRE FENCES OR PLANTINGS – EXCEPTION

The Board of Adjustment and Appeals may approve, or may direct as a condition for granting an appeal, special use or conditional use, that fences or plantings of a height in excess of these regulations be placed as buffers between different uses, or between like uses upon agreement between the parties affected thereby, provided that no such approval shall have the effect of reducing corner visibility as provided for herein.

Q-2-119 POWER OF BOARD OF ADJUSTMENT AND APPEALS TO GRANT INTERIM SPECIAL USE PERMITS FOR CERTAIN USES

It is recognized that there may be extensive areas of undeveloped land within the City upon which the planned type of development will not take place for a considerable time. It is therefore reasonable and proper that interim uses not in conformity with the land use plan be allowed.

The Board of Adjustment and Appeals is authorized to grant special use permits for property within the zoning district allowing for uses not allowed as a matter of right in said district under the following conditions:

A. The proposed use shall be an open land type of use and shall not involve the erection of permanent buildings or other permanent improvements and shall be located in an undeveloped area of the City; provided, however, that permanent buildings shall be allowed which conform with the zoning in force upon the parcel.

B. The proposed use and the placement thereof upon the land shall be such that it shall not be unsightly to the general public nor interfere with the enjoyment or use of neighboring properties.

C. All permanent structures shall comply with all provisions of the district in which the proposed use is located.

D. All temporary uses and structures shall comply with all provisions of the Uniform Building Code.

E. The Board of Adjustment and Appeals may append reasonable conditions to any special use permit to the end that the objectives of this chapter may be upheld.

Q-2-120 PROCEDURES, CONDITIONS AND RESTRICTIONS ON INTERIM SPECIAL USE PERMITS

Special use permits may be issued for any of the following:

A. Any of the uses for which such permits are required or authorized by the provisions of this chapter.

B. Commercial excavating of natural materials for building or construction purposes, in any district.

Applications for a special use permit must be submitted to the Board of Adjustments and Appeals. The Board of Adjustments and Appeals may hold such hearings on the application as it may consider necessary; but no special use permit shall be granted if the Board of Adjustments and Appeals find that the use for which it is sought will be detrimental to the health, safety, convenience or welfare of persons residing or working in the neighborhood of such use, or injurious to property or improvements in the neighborhood.

The Board may attach such terms and conditions to the permit as it may deem necessary. The City Inspector or his designee shall enforce compliance with the terms of the special use permit and shall initiate actions for renewal or cessation of the activity at the expiration of the special use permit.

No special use permit shall be issued for a period to exceed two (2) years, provided however, that such special use permit may be renewed for additional periods not to exceed two (2) years each, upon finding that conditions have not changed sufficiently to warrant denial of such a renewal.

No property owner or owner of other interest in the land shall have a vested right in the renewal of any special use permit.

Source:

Authority: SDCL 9-12-13, 11-4-1

Q-2-121 CONDITIONAL USE PERMITS

The City Council may authorize by conditional use permit the uses designated in this chapter when located in a zoning district allowing such use. The City Council shall impose such conditions as are appropriate and necessary to ensure compliance with the comprehensive plan and protect the health, safety, and general welfare in the issuance of such conditional use permit. Unless expressly modified by the Board of Adjustment and Appeals, all regulations of the zoning district in which the use is located shall apply.

A. Application. An application shall be filed with the City Planning and Zoning Commission. The owner may be required to submit plans, drawn to scale, indicating the location and dimensions of all existing and proposed buildings or additions, parking, landscaping, building setbacks, screenings, and the use conducted therein or the use of any land.

B. Notification. Notification of surrounding property owners, tenants, and interested parties shall be accomplished by posting one sign on the property placed in a visible location from the closest public road not less than seven (7) days before the public hearing before the City Planning and Zoning Commission noting the fact that a conditional use permit is pending and by mailing notices of public hearing to neighboring property owners not less than seven (7) days before the public hearing before the City Planning and Zoning Commission.

C. Public hearing. Upon application and review, the City Planning and Zoning Commission shall hold a public hearing thereon, after having given a seven (7) day notification in a daily newspaper of general circulation.

D. City Planning and Zoning Commission recommendation. For each application for a conditional use, the City Planning and Zoning Commission shall report to the City Council its findings and recommendations, including the stipulation that additional conditions regarding the location, character, or other features of the proposed use or buildings may be imposed when they are deemed necessary for protection of public interest.

E. Criteria for review. In reviewing applications for conditional use permits, due consideration shall be given to the following:

1. The location, character and natural features of the property.

2. The location, character and design of the adjacent buildings.

3. Proposed fencing, screening and landscaping.

4. Proposed vegetation, topography, and natural drainage.

5. Proposed pedestrian and vehicular access, circulation and parking, including that related to bicycles and other unpowered vehicles and provisions for handicapped persons.

6. Existing traffic and traffic to be generated by the proposed use.

7. Proposed signs and lighting.

8. The availability of public utilities and services.

9. The objectives of the adopted comprehensive plan and the purpose of the ordinance codified herein.

10. The overall density, yard, height, and other requirements of the zone in which it is located.

11. The effects of noise, odor, smoke, dust, and air and water pollution, and the degree of control through the use of clarifiers, screening, setbacks, and orientation.

12. The degree to which conditions imposed will mitigate any probable adverse impacts of the proposed use on existing adjacent uses.

F. Expiration of conditional use permit. A conditional use permit shall automatically expire if the use permitted has not been started within twelve (12) months or if the use permitted ceases for a period of twelve (12) months. However, a conditional use permit for a phased-in project may allow for an additional period of time for commencement of the permitted use, not to exceed thirty six (36) months total, to be set by the City and specifically stated in the conditional use permit.

A conditional use permit may be approved for mixed business/residential use in a commercial district that may be transferable upon sale, provided, however, any such transfer is contingent upon written agreement by the purchaser to adhere to the terms of the conditional use permit. No modification to the conditional use permit will be allowed by the purchaser without following the procedures set forth for obtaining a conditional use permit.

G. Preexisting uses. An existing use eligible for a conditional use permit which was lawfully established on the effective date of this title shall be deemed to have received a conditional use permit and shall be provided with such permit upon request, and it shall not be a nonconforming use; provided, however, for any enlargement, extension, or relocation of such existing use, an application in conformance with this chapter shall be required.

H. Compliance. Any conditional use permit granted under the provisions of this chapter shall be established and conducted in conformity with the terms of such permit and of any conditions attached thereto. Failure to comply with said terms or conditions constitutes cause for the City Council to pursue legal remedies and/or revoke the conditional use permit.

Source: Ordinance 847, 962

Q-2-122 Certain Property In Riverfront Districts

All property contained within residential districts abutting the Missouri River or U.S. Corp of Engineers take line along Missouri River shall have a rear setback of ten (10) feet from either the property line or high water mark, whichever creates the greatest distance from the high water mark.

The restrictions of Ordinance Q-5-103 Sections C and D shall not apply to property described above.

Q-2-123 TO 129, INCLUSIVE. RESERVED

Q-2-130 ORDINANCE VARIANCES

Q-2-131 PURPOSE

The purpose of this Section is to provide for deviations from the literal provisions of this Ordinance in instances where their strict enforcement would cause undue hardship because of physical circumstances unique to the individual property under consideration, and to grant such variances only when it is demonstrated that such actions will be in keeping with the spirit and intent of this Ordinance.

Source:  Ord 953

Q-2-132 DEFINITION

“Undue hardship” as used in connection with the granting of a variance means the property in question cannot be put to a reasonable use if used under conditions allowed by this Ordinance, the plight of the landowner is due to circumstances unique to the property not created by the landowner, and the variance, if granted, will not alter the essential character of the locality. Economic considerations alone shall not constitute an undue hardship if reasonable use for the property exists under the terms of the Ordinance.

Source:  Ord 953

Q-2-133 VARIANCE REQUEST

An ordinance variance requires a public hearing and is to be processed in accordance with the procedures set forth in Chapter Q-1-114, (PROCEDURES FOR AMENDING, CHANGING, MODIFYING, OR REPEALING PORTIONS OF ZONING ORDINANCES OR MAP) of this Ordinance. The information required for all zoning applications generally consists of items outlined in Chapter Q-1-114 (PROCEDURES FOR AMENDING, CHANGING, MODIFYING, OR REPEALING PORTIONS OF ZONING ORDINANCES OR MAP) of this Ordinance, and shall be submitted unless exempted by the City.

Source:  Ord 953

Q-2-134 HARDSHIP STANDARDS

The City Council shall not approve any variance request unless they find failure to grant the variance will result in undue hardship on the applicant, and, as may be applicable, the following criteria have been met:

A. Physical Characteristics. That because of the particular physical surroundings, shape, or topographical conditions of the specific parcel of land involved, a particular hardship to the owner would result, as distinguished from a mere inconvenience, if the strict letter of the regulations were to be carried out.

B. Unique to Parcel. That the conditions upon which a variance is based are unique to the parcel of land for which the variance is sought and are not applicable, generally, to other property within the same zoning classification.

C. Purely Financial. That the purpose of the variance is not based exclusively upon a financial hardship, or a desire to increase the value or income potential of the parcel of land

D. Self-Created. That the alleged difficulty or hardship is caused by this Ordinance and has not been created by any persons having an interest in the parcel of land and is not a self-created hardship.

E. Public Welfare. That the granting of the variance will not be detrimental to the public welfare or injurious to other land or improvements in the neighborhood in which the parcel of land is located.

F. Nuisance Avoided. That the proposed variance will not impair an adequate supply of light and air to adjacent property, substantially increase the congestion of the public streets, increase the danger of fire, or endanger the public safety.

G. Minimum Action. That the requested variance is the minimum action required to eliminate the hardship.

H. Use Variance. That the requested variance does not involve a use that is not allowed within the respective zoning district.

Source:  Ord 953

Q-2-135 CONDITIONS

Conditions may be imposed in the granting of a variance to ensure compliance with and to protect adjacent properties and the public interest.

Source:  Ord 953

Q-2-136 DURATION AND EXTENSION

Unless otherwise specified, the approved variance shall become null and void within one (1) year of the date of approval unless the property owner or applicant has substantially commenced construction of any building, structure, addition or alteration, or request as part of the approved variance or unless a petition for a time extension has been granted by the Zoning Administrator. Such extension request shall be submitted in writing at least thirty (30) days prior to expiration of the variance and shall state facts showing a good faith effort to complete work permitted under the original approval.

Source:  Ord 953

Q-2-137 to 199, Inclusive. Reserved.

Source: Ordinance No. 857, 809, 953