Conditional Approval

Conditional Use Permits (CUPs) are an effective zoning tool that is unfortunately often misunderstood or misused. If used correctly, they can control certain uses from going awry and becoming a problem. If poorly implemented, they are just an additional hurdle for developers.

Importance of Public Input

First, let’s tackle the public hearing aspect. The approval process varies from state to state and even at times city to city based on what the state statutes allow and how your zoning ordinance is written. However, most zoning actions like conditional use permits require a public hearing as part of the approval process.

Although, at times, public hearings on proposed uses can be more problematic than helpful. In general, they are important to the process. Yes, often the public is ill-informed on the use proposed or they have a personal issue with the applicant involved. However, sometimes the public is also helpful in ensuring what is proposed will work in that location. A neighbor may know a little-known environmental aspect about the subject property that may be of importance when considering such a use in that location. Or a member of the public may know a specific operational aspect of such a use that may require a condition specific to this use to be added to the permit document.

Often times a resident will call or email before the public meeting to obtain additional information about that proposal or voice their concerns. This is an opportune time to pick their brains.

Drafting the Permit Document

Then there’s the permit itself. Often in smaller towns without a dedicated community planner, this is where the process falls short. So too often do we see CUPs as just a zoning action that allows for public input on the allowance of a use. After a proposal’s approval by the approving entity, the use often is allowed to commence and operate at will.

But this is where it should just be starting. There needs to be an executable permit document that allows for the use with certain conditions for the operation of the used. The permit should also include enforcement remedies if the use does not abide by those conditions. Such a document protects adjoining landowners from such a use from going awry and creating a nuisance. It also protects the municipality from possible legal issues stemming from their approval of the nuisance.

Though the creation of such a document may be daunting to a town with only a city clerk. and little help outside of that for zoning matters, it shouldn’t be. First and foremost, don’t start from scratch. If you know of a community that is doing it right, ask to obtain some examples from them. Sometimes a planning consultant is a good resource as they’ve seen what other communities are doing and can recommend a format to start with. This will provide the basis for your permit, the starting point from where you modify the specifics to your case.

As this is a legal document, it is always best to have your community’s legal representation review the document. This may be a little costly the first couple times if you have a third-party legal counsel. But once you’ve done it a few times, and your attorney knows what you’re trying to achieve, it gets simpler, faster, and cheaper. Regardless, legal assistance is cheaper than the cost of a court case if your city is sued without such a permit in place.

Follow Up

Lastly, make sure to conduct at least annual inspections of the property. Often, this is more of a drive-by observance of the property to ensure that there are no obvious violations of the permit and possible nuisances upon adjoining landowners. Proactively catching a problem is always better than waiting for complaints to roll in.

Conditional Use Permits are often an under utilized tool in the zoning toolbox. But they can be highly useful if properly done.