By Myrna Trauntvein
Times-News Correspondent
A community needs clear regulations when it come to
allowing conditional uses.
Land use regulations should very clearly describe
permissible uses that are allowed within the zoning
districts.
"'Conditional use' (CUP's) means a land use that,
because of its unique characteristics or potential impact on
the municipality, 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,'" said Meg
Ryan, Planning Consultant for the Utah League of Cities and
Towns.
The conditional use process is based on the underlying
assumption that the proposed use can be appropriate, said
Ryan, if conditions (design and other standards) are
applied, primarily to ensure compatibility and mitigation of
potential impacts.
"Depending on the neighborhood, similar uses will have
different impacts. Some will be tolerated in one
neighborhood but not in another," said Ryan.
A land use ordinance may include conditional uses and
provisions for conditional uses that require compliance with
standards set forth in an applicable ordinance.
Land use regulations should very clearly describe
permissible uses that are allowed within the zoning
districts.
"This means that there should be a specific list of
uses that may be allowed through the conditional use
process," said Ryan. "You need clear and specific uses
identified and not an open-ended description of conditional
uses, such as 'other uses' as approved through the
conditional use process."
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,
she said, 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.
Conditional uses are as mitigating or moderating (a
quality or condition) in force or intensity; or as
alleviating or to become milder.
Ryan said there were some general standards for
conditional use permits. Those are: the safety of people
and/or property; health and sanitation; environmental
concerns; the general plan and the permitted zoning;
traffic; lighting; esthetics; noise; landscaping and general
use and design.
"After you apply the review standards to the
application then you can attach conditions that relate
directly to that specific situation," said Ryan.
A standard of review could be "effects of lighting."
An ensuing condition related to that standard could be: "No
flood lights are allowed."
An applicant for a conditional use in the zone must
demonstrate: the application complies with all applicable
provisions, state and federal law; the structures associated
with the use are compatible with surrounding structures in
terms of use, scale, mass and circulation.
The use is not detrimental to the public health,
safety and welfare and is consistent with the city general
plan as amended.
Traffic conditions must not be adversely effected by
the proposed use including the existence or need for
dedicated turn lanes, pedestrian access, and capacity of the
existing streets.
There is to be sufficient utility capacity and
sufficient emergency vehicle access.
The location and design of off-street parking as well
as compliance with off-street parking standards must be met
and a plan for fencing, screening, and landscaping to
separate the use from adjoining uses and mitigate the
potential for conflict in uses must be provided.
Exterior lighting must comply with the lighting
standards of the zone.
It must be shown that within and adjoining the site,
impacts on the aquifer, slope retention, and flood potential
have been fully mitigated and is appropriate to the
topography of the site.
For example, she said, neighbors of a small bar, with
its poorly placed dumpster, may not feel very neighborly.
But conditional use standards could result in requiring
limited hours of operation for the bar, and landscaping and
other measures to conceal the dumpster.
"Good conditions make good neighbors," said Ryan.
In addition, the Planning Commission must
evaluate the applicant's compliance with certain criteria
when considering whether to approve, deny or conditionally
approve an application.
Each application for a business license for a home
occupation shall include the applicant's agreement that the
proposed use will not include outdoor storage, outdoor
display of merchandise, nor parking/storage of any vehicle
in excess of twelve thousand pounds (12,000 lbs) gross
vehicle weight.
The home business will not include identifying signage
in excess of a six (6') square foot name plate, attached to
the dwelling and other criteria as determined by
ordinance.
"Assigning conditions is not an exact science," said
Ryan.
Planners can consider past experience with specific
uses by identifying the impacts that occurred and evaluating
the success of the standards imposed to address those
impacts.
"You want to be sure that your procedures require
written findings to support the decision," she said. "This
will ensure that there is a relationship between the
potential negative impact and the discretionary
conditions."
A conditional use runs with the land because it is an
objective permit--it doesn't matter who owns it, but only
that the conditions are fulfilled.
"There is nothing about a change in ownership that
creates an objective change to the permit issues," said
Ryan. "That is not to say that a city must be indifferent to
ownership."
A condition of a permit for an environmentally
challenging use, for example, could include a requirement
that the permit holder demonstrate adequate financial
responsibility to address any accidental hazardous condition
that they may create.
This might include proof of insurance, experience in
the industry, a minimum capitalization ratio, or something
along these lines. These conditions would then transfer to
the new owner, who would also have to meet the same
criteria in order to maintain the CUP.
"A written record also helps with compliance and
future owners as conditional use permits run with the land,"
she said.
The City Council may revoke the Conditional Use Permit
of any person upon a finding that the holder of the permit
has failed to comply with any of the conditions imposed at
the time the permit was issued.
The City Council sends notice of the revocation to the
holder of the permit and the holder of the permit
immediately ceases any use of the property which was based
on the Conditional Use Permit.
Notice to correct, a appeal period, and a hearing are
required.
A time-limit is also imposed. Action authorized by a
Conditional Use Permit must commence within one year of the
time the permit is issued.
If the permit holder has not commenced action under
the permit within this time, the permit expires and the
holder must apply for a new permit.
The Planning Commission may grant an extension for
good cause shown. Only one extension may be granted
and the maximum extension shall be six months.
In order to obtain an extension, the permit holder
must apply for an extension in writing before the expiration
of the original permit. The application must be submitted to
the City Recorder and the application must describe the
cause for requesting the extension.
A city may issue a one year or two year CUP. However,
most owners would not invest in anything significant if the
CUP lapses in a year.
|
