As with most things in real estate, especially when dealing with Special Use Property, it all comes down to highest and best use. Both of which have their roots in the zoning ordinances. In other words, what uses are permitted on the property. Sometimes a Special Use property is permitted by right, or “Grandfathered”. Other times, a Conditional Use Permit is required. Although a permit sounds simple enough, don’t let the name fool you. A Conditional Use Permit can be a long and expensive process with no guarantee of even being granted, it can also be revoked with cause after it is granted.
In its most basic form, Municipalities establish a General Plan which contains the overall land use scheme by restricting some areas to particular usages. Zoning regulations must be reasonable and bear a rational relationship to the objectives of the City, while taking affirmative measures to provide housing for all. Municipalities have been given reasonable control over the private use of land from the State through enabling statutes for the protection of the health, safety, morals, and general welfare of its citizens.
All property has an underlying zone wherein the governing agency determined what the general use of the land will be, such as residential or commercial. In addition, these broad distinctions are further divided based on density, or intensity. These could range from single family homes, to large apartment complexes in residential areas, and a varied assortment of commercial uses from medical offices to retail stores.
Most cities have listed particular uses within these zones which are permitted by right, and no further permission from the planning department is necessary providing the development meets all other building/development codes. In other words, if the land is zoned for single family residence, short of asking for a variance from the existing code, you can build a single family home by right. In addition, zoning list those uses which are permitted by Conditional Use Permit, or not at all.
Conditional Use Permit; Defined:
A use that is authorized by the zoning ordinance if specified conditions are met, and may be continued for either a specific period of time, or indefinitely provided that the legal use and conditioned use continues. Generally speaking, a Conditional Use Permit is required for particular uses and usually contains special conditions to ensure compatibility with surrounding land uses.
A Conditional Use Permit is not a change to the zone or the laws, but is a specific use to a parcel of land. In nearly every instance, a Conditional Use Permit must be consistent with the existing General Plan, as well as conforming to any local area or community plans.
Appointed individuals which act as an advisory board to the City Council relating to the physical development of the city, including exercising certain functions relating to zoning, building, and land use.
When taking into consideration an application for a Conditional Use Permit, the Planning Commission will make a finding based upon evidence, both factual and supportive, provided by the applicant. These findings will be generally based on, but not limited to:
- The site for the proposed use is adequate in size and shape to accommodate that use and all yards, spaces, walls and fences, parking, loading, landscaping and other features required.
- The site for the proposed use relates to streets and highways adequate in width and degree of improvement to handle the quantity and kind of vehicular traffic that would be generated by the proposed use.
- Any negative impacts of the proposed use on adjacent properties and on the public can be mitigated through application of other ordinance standards, or other reasonable conditions of approval.
- In areas designated as requiring preservation of historic, scenic or cultural resources and attributes, proposed structures will be of a design complimentary to the surrounding area.
The Application; Simplified:
All major cities/counties will have some type of form in which to submit your application. This form will often list the items necessary to make application. These will usually include plans of the proposed use, (often with the existed use, if any), traffic studies, environmental impact reports, and fees. Once your application has been submitted, someone will review the file to ensure that it is complete. Assuming it is and no further documentation is necessary, the information will be passed to all of the city agencies for their review, wants and subject approval.
The different city agencies, such as fire, building, and zoning will comment or request changes to your plans in order to comply with the then current code sections which apply to their department. Once that process is complete, the file will be submitted to a case planner who will then determine if additional information, reports or special studies are required such as historical, traffic, or sewer. Provided the submittal is deemed satisfactory and no further redesigns or revisions are necessary, the application is summed up in what is referred to as a “Staff Report.”
This Staff Report is made available to the public as well as the member of the Planning Commission for review and comment. A public Hearing is then scheduled and held before the Planning Commission wherein public opinions are heard and the concerns of the Commissioners are addressed. If your project is then approved and no appeals are received during the mandatory waiting/appeal period, the application is forwarded to City Council for consent, review approval or denial.
Time and Money:
Although the process above was over simplified, rest assured that the entire process from the first submittal to final approval takes twelve months on average. I have however seen them go on for years. In addition to the amount of time involved, one must also consider the cost.
Fees for submittal can range from $10,000 – $20,000 depending on the municipality and what they require. In addition to these cost, there will be cost for architects, engineers, surveyors, reports and studies.
What it often over looked is the fact that despite all of your time, money, and effort, there is no guarantee of approval. Furthermore, the conditions imposed for approval, might be cost prohibitive. In other words, your project may be approved, but the cost to comply with the conditions could be tens of thousands of dollars.
Although they must be reasonable, there is virtually no limit to the conditions which may be enforced and could include parking and access, landscaping, building size and placement, architectural style, signage, and/or hours of operation. In addition, you or your representative will need to attend all public hearings and meeting with all the different departments.
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Disclaimer: Every situation is different and particular facts may vary thereby changing or altering a possible course of action or conclusion. The information contained herein is intended to be general in nature as laws vary between federal, state, counties, and municipalities and therefore may not apply to any given matter. This information is not intended to be legal advice or relied upon as a legal opinion, course of action, accounting, tax or other professional service. You should consult the proper legal or professional advisor knowledgeable in the area that pertains to your particular situation.