Permitting Conditional Land Uses - dummies

Permitting Conditional Land Uses

By Alan R. Romero

A typical zoning ordinance specifies not only uses that are permitted in each zoning district but also other uses that may be specially permitted only if certain specified conditions are met. Such uses are called conditional uses or special exceptions.

A property owner who wants to use her property for such a conditional use must first obtain a conditional use permit. Today, most zoning ordinances charge an administrative body called a planning commission with the authority to grant conditional use permits, but some ordinances give that authority to a board of zoning adjustment or even to the local legislative body.

The commission or other body holds a hearing, at which the property owner may present evidence that her use of the property meets the specified criteria for a conditional use permit. Other people, typically other property owners in the neighborhood, may attend the hearing and argue against granting the permit.

The commission considers the information presented at the hearing, along with the review and recommendations of the locality’s planning staff, and decides whether to grant or deny the permit. The commission may grant the permit subject to conditions intended to ensure compliance with the criteria for approval of such a permit.

Zoning ordinances typically make a use conditional when it’s considered appropriate in a certain zoning district — but only if it complies with certain conditions that reduce negative effects on the area. A group rehabilitation home, for example, may be considered appropriate in a residential zone as long as it doesn’t negatively affect traffic and safety.

The local zoning ordinance may include relatively specific conditions, such as that another such use may not be within 500 feet of the proposed use. It may also include relatively general conditions, such as that the use must not impair property values in the area.

If a condition to granting a permit is too general and vague, such as one requiring the use of the property to be “consistent with the public interest,” it may be unconstitutional. A legislative body can constitutionally delegate its authority to an administrative body only if it provides sufficient guidance directing the administrative body’s decisions; the legislative body can’t simply surrender its legislative power.

A court may hold that merely telling the administrative body to decide whether a use is “consistent with the public interest” isn’t enough guidance about when the legislative body has decided the use should be allowed and therefore is an unconstitutional delegation of legislative power.