By Myrna Trauntvein
Times-News Correspondent
One, very useful tool common to zoning ordinances
is the conditional use because it allows flexibility in
zoning while still maintaining controls that will protect
the integrity of an underlying zone.
"Outright denial of a conditional use application
can be accomplished only if there are no conditions that
can make the requested use acceptable," said Sydney
Fonnesbeck, staff member with the Utah League of Cities
and Towns.
The State Code defines a conditional use permit as
a land use that, because of its unique characteristics or
potential impact on the municipality or county location,
surrounding neighbors, or adjacent land uses, may not be
compatible in some areas or may be compatible only if
certain conditions are required that mitigate or
eliminate the detrimental impacts, she said.
The overall purpose of any condition, established
as part of the Conditional Use Process, is to protect the
integrity of the underlying zoning. For example: If the
underlying zoning is residential, the conditions should
all be justifiable as protection against the intrusion
that a nonresidential use will create.
"As long as each use can be justified as providing
such protection, a court will seldom assume conditions to
be arbitrary," she said.
The Board of Adjustments has jurisdiction to decide
appeals of the approval or denial of conditional use
permits unless the legislative body has enacted an
ordinance designating the legislative body or another
body as the appellate body for those appeals.
"A zoning ordinance may contain provisions for
conditional uses that may be allowed, allowed with
conditions, or denied in designated zoning districts,
based on compliance with standards and criteria set forth
in the zoning ordinance for those uses," said
Fonnesbeck.
The general rule that has been developed, primarily
through judicial action, is: "Where a use is shown in an
ordinance as a conditional use, an applicant is entitled
to a permit to conduct that use if the applicant has
accepted and has agreed to comply with all reasonable
conditions or standards.
"The local administering agency is generally not
entitled to a selective approval of conditional use
applications if the established procedure has been
followed."
When the designated body is considering the
granting of a conditional use, the following questions
and answers should be considered, said Fonnesbeck.
Is this use listed as a Conditional Use for this
zone in the Zoning Ordinance? If not, it cannot be
considered. Neither the Planning Commission nor the Board
of Adjustment is empowered to decide what uses are
conditional.
Are there conditions spelled out in the zoning
ordinance? If so, are they required, or suggested? Are
they the only conditions that are allowed? May the
planning commission, as a body, add to them?
When specific conditions are established, their
purpose should be to protect the primary use of the
neighborhood.
"This often requires that the planning commission
look very carefully at the proposed use and anticipate
problems that might arise," said Fonnesbeck.
Once the planning commission has established
conditions, they may not go back at a future date and add
to them when and if there are problems.
Fonnesbeck gave, as examples, some possible
problems that might be the results of a conditional use:
parking, traffic, out-buildings, noise and the disposal
of hazardous or noxious materials.
Conditional uses that produce noise or potentially
dangerous materials must go into industrial zones or,
because of the potential hazards, may not be allowed at
all.
"The right for a conditional use and the attached
conditions that are imposed, go with the property, not
the owner," she said. "A new owner may continue the use
provided that it is the same use and that he or she
abides by the same conditions."
It is important, therefore that future owners be
considered as well as the original applicant when
establishing standards and conditions.
The planning commission does have the power, if the
conditions are violated, or not met, to shut down the
business or activity for non compliance.
"Neighbors are often the best 'enforcement
officers' if they are part of the process and are aware
of what conditions have been attached to the property,"
said Fonnesbeck.
