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, Conditional Use Permits are required. Although a permit sounds simple enough, don’t let the name fool you. Conditional Use Permits can be a long and expensive process with no guarantee of even being granted, and they can also be revoked with cause after being granted.
Zoning Laws and Conditional Use Permits
In its most basic form, municipalities establish a General Plan which contains the overall land use scheme by restricting some areas to particular usages, or a zone wherein the governing agency determines 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, ranging 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, provided the development meets all other building and 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 lists those uses permitted by Conditional Use Permits, or not at all.
Conditional Use Permits; Defined
A Conditional Use Permit is 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 authorized for 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.
Planning Commission and Conditional Use Permits
Under Government Code Section 65901, cities and counties have the authority to establish a board of zoning adjustment or zoning administrator to hear and decide applications for a Conditional Use Permit. In many California cities, the Planning Commission exercises this authority — appointed individuals who 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 considering 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 generally be based on, but not limited to: whether 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 required features; and whether the site relates to streets and highways adequate in width and degree of improvement to handle the vehicular traffic the proposed use would generate.
Findings also address whether any negative impacts of the proposed use on adjacent properties and on the public can be mitigated through other ordinance standards or reasonable conditions of approval, and, in areas designated for preservation of historic, scenic, or cultural resources, whether proposed structures will be of a design complementary to the surrounding area.
The Application; Simplified
All major cities and counties will have some type of form for submitting a Conditional Use Permit application. This form will often list the items necessary to make application, usually including plans of the proposed use (often alongside the existing use, if any), traffic studies, environmental impact reports, and fees.
Once your application has been submitted, someone will review the file to ensure 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, comments, and subject approval.
The different city agencies, such as fire, building, and zoning, will comment on or request changes to your plans in order to comply with the current code sections that apply to their department. Once that process is complete, the file will be submitted to a case planner who will determine if additional information, reports, or special studies are required, such as historical, traffic, or sewer studies. Provided the submittal is deemed satisfactory and no further redesigns or revisions are necessary, the application is summarized in what is referred to as a “Staff Report.”
This Staff Report is made available to the public as well as the members 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 or appeal period, the application is forwarded to City Council for consent, review, approval, or denial.
Time and Money: The Real Cost of a Conditional Use Permit
Although the process above was oversimplified, rest assured that the entire Conditional Use Permit process, from the first submittal to final approval, takes twelve months on average. Some have been known to 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 to $20,000 depending on the municipality and what they require. In addition to these costs, there will be costs for architects, engineers, surveyors, reports, and studies.
What is often overlooked 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 that may be enforced, and they could include parking and access, landscaping, building size and placement, architectural style, signage, and hours of operation. In addition, you or your representative will need to attend all public hearings and meetings with the different departments.
Related Articles
Church Officer and Director Liability
How Zoning Codes Effect Churches
Why Use Bushore Real Estate
