"Similar character" use decisions made by staff

[mendelman]

I have several provisions in my code that pass the responsiblity to my Board of Zoning Appeals to determine when a use is of "similar character" with a listed permitted/conditional/special use. This appears to be a hold over from our township/lack of professional staff past, but in the other munis I've worked and other codes I've reviewed, these determinations are usually the purview of staff at an administrative level. I think this should be changed to be staff's responsibility due the size of our community, to reduce red tape/unecessary delays and modernize our code, but I'm obviously recieving pushback, especially from the BZA.

I need to develop a rational defenible reason for my position and therefore I call upon Cyburbia's wealth of experience and knowledge to assist me.

What is your experience and/or advise for such a position (positive or negative)?

[HomerJ]

Don't have too much experience on the issue. But in any case where you try to convince a commission to do something they don't want, charts and tables and other visual aids that make you look smarter should always help. My first thought is that maybe you can find some way of showing past cases that were similar in which the commission just went along with whatever staff recommended. That way, you might be able to trivialize the issue and convince members that they are just waisting time putting a rubber stamp validating what staff would be able to do without them.

I imagine it will be a tough sell. PC members always seem to overcompensate when it comes to validating their own position. Unless you convince them it was their idea in the first place, it'll be hard for them to loosen the reigns. Just my opinion though, I am still waiting until I have to face this obstacle with my own commission.

[ThePinkPlanner]

I don't know if this is an option for you, but we've tossed out phrases like "existing" or "similar" character in favor of "planned character." It has been very well used, often-quoted, and I think very successful. The comp plan and the bylaws very nicely lay out what is planned for an area. It makes it much less subjective than comparing plans to what currently exists, which may not be well documented in text. It has saved us on the ground, and in court.

[mendelman]

That's not exactly what I'm asking.

My question is about when a use is listed as permitted in a district and you have a use presented to you that is not exactly the same, but of "similar" character and/or impact then it can be classified under the use that is specifically listed.

[Suburb Repairman]

All three cities I've worked for have allowed staff to make a determination regarding unlisted uses that are similar to another use. I've had maybe 5-6 that I've deferred to the Commission on because the use was borderline or simply not similar enough to something else listed. My experience with this has been positive.

Maybe they'll be more comfortable if you give some quantifiable things you would consider in making an assessment that it is similar to another use. For example, cite similar traffic impact (trip generation, peak hour, etc.), NAICS code similarity, etc.

Also, you might start off with an interim step in which you make a determination, forward it to the commission chair and vice-chair, and allow them 48 hours to respond. If they respond that they do not agree, then it goes to the Commission for consideration. If they approve or simply don't respond (most likely), then your decision stands.

I have some similar language related to my historic preservation commission for when I make a determination that something does not require a certificate of design compliance. Let me know if you want to see it.

[mike gurnee]

Perhaps not as good as it could be, but this is in the Greensburg Code definitions:

NEIGHBORHOOD CHARACTER: Features that make areas of the city attractive living environments. Neighborhood disruption includes activities that detract from safe and peaceful enjoyment of such areas. Special exception standards that require facilities to be in keeping with the neighborhood character must consider generation of noise, dust, and traffic, among other features in excess of that otherwise normal to such neighborhood. Screening and buffers may help alleviate the degree of disruption. Design can be in keeping with neighborhood character when, for example, similar exterior materials and structural members are used, i.e. brick siding, pitched roof.

[luckless pedestrian]

I think I understand the question:

we don't allow use variances though you can replace a non-conforming use with another one of no "greater adverse impact" (our catch phrase) and it does go to Appeals Board (no way they will give that up) - it's an oddity imho

our conditional use permit system is for specified uses - for example a restaurant is allowed on X street by conditional use permit - it's a looksie to make sure the site is a good location for that particular use - that goes to Planning Board

[ThePinkPlanner]

That's not exactly what I'm asking.

My question is about when a use is listed as permitted in a district and you have a use presented to you that is not exactly the same, but of "similar" character and/or impact then it can be classified under the use that is specifically listed.

I'm sorry. I went in a completely different direction. I understand better now. This is a very good question because it can often be a practice without a clear policy.

In our office, our zoning admin makes the determination. If the applicant disagrees, then they have options depending on the type of application.

If the use is being reviewed by the Development Review Board because it meets the thresholds for review, then the DRB will determine the appropriate assigned use.

If it is an application that could otherwise be completed administratively, and the applicant disagrees with the assigned use, they would submit a basic zoning permit, have it denied by the administrative officer, then appeal to the Board as an appeal of the Administrative Officer.