Urban planning community

+ Reply to thread
Results 1 to 10 of 10

Thread: Special use/conditional use: run with the land or with the owner?

  1. #1
    Cyburbian boiker's avatar
    Registered
    Dec 2001
    Location
    West Valley, AZ
    Posts
    3,895

    Special use/conditional use: run with the land or with the owner?

    What is customary or allowed in your community?

    Can a special/conditional use be permitted with only the land or are you allowed to issue the use permit to an owner?

    The difference being that the approval with the land can be transferred between ownerships as long as the use is within the bounds of the approval.

    Approval with the owner causes any future owner of the land/business to be required to request a new special or conditional use approval-- no matter how simliar the new use is.

  2. #2
    Super Moderator luckless pedestrian's avatar
    Registered
    Aug 2005
    Location
    in a meeting
    Posts
    8,918
    imho, zoning runs with the land, not the person

  3. #3
    Cyburbian The One's avatar
    Registered
    Mar 2004
    Location
    Where Valley Fever Lives
    Posts
    7,659
    Blog entries
    1

    Depends....

    We do either or...depending on the type of request and our trust level of the operator/owner. Just remember that if you tie it to the owner, be sure to know if that includes transfer of corporate titles or change in status of an LLC.

    In general, if a use permit has a set time period for expiration, it would not need to be tied to the ownership, unless you have operational issues and the current owner isn't actively trying to sell the property to the applicant.

    I haven't met many (any?) Conditional/Special Use permits that didn't need/deserve an expiration/renewal date of some kind.
    "The modern conservative is engaged in one of man's oldest exercises in moral philosophy; that is, the search for a superior moral justification for selfishness."
    John Kenneth Galbraith

  4. #4
         
    Registered
    Aug 2005
    Location
    Funky Town, CO.
    Posts
    432
    We are in the land use business. The applicant is should not factor into your basic analysis of a project. You may add additional conditions, require them to document all other permit requirements from outside agencies (ACoE, DOT, EPA) and require a periodic review of the permit if you have concerns about past or future performance. If you link approvals to specific persons or companies how can you be treating everyone equally under the law? You quickly fall into a "good ol'boy"system of favoritism and that is a disservice to the larger community. If a use is operated in compliance with the approval or your code it should not matter who owns the property or the business.

    As you can see this is one of my pet peeves. I've seen my share of favoritism by boards and even seen a planner jack around an applicant because of a past history. Not much else gets my blood pressure up more than this.

  5. #5
    Cyburbian The One's avatar
    Registered
    Mar 2004
    Location
    Where Valley Fever Lives
    Posts
    7,659
    Blog entries
    1

    Well....

    Quote Originally posted by Senior Jefe View post
    We are in the land use business. The applicant is should not factor into your basic analysis of a project. You may add additional conditions, require them to document all other permit requirements from outside agencies (ACoE, DOT, EPA) and require a periodic review of the permit if you have concerns about past or future performance. If you link approvals to specific persons or companies how can you be treating everyone equally under the law? You quickly fall into a "good ol'boy"system of favoritism and that is a disservice to the larger community. If a use is operated in compliance with the approval or your code it should not matter who owns the property or the business.

    As you can see this is one of my pet peeves. I've seen my share of favoritism by boards and even seen a planner jack around an applicant because of a past history. Not much else gets my blood pressure up more than this.
    So, are you saying that past history doesn't matter in planning? Cause I'm fairly certain it matters in just about every other part of our society. If a city has a terrible track record with a person in code enforcement on a property, why not hold their feet to the fire when considering a new permit? Now if your talking about personality conflicts getting in the way of good planning, that's not good and I couldn't agree more.

    What about the person that wants a special use permit to allow a second temporary dwelling unit for a sick family member.....why would we want to allow that to "run with the land" when as soon as the sick relative dies...the special use should go away? or

    If a jurisdiction is willing to consider an expiration date for the use, why not also tie it to the operator who made the original request in the first place. This also avoids speculative special uses or conditional uses that would tend to drive up or down values in a neighborhood, depending on the use.

    In some cases the operator may have a special license from the state/feds or be qualified in some special way to operate a specified use and as such should be the named user and operator of the facility. A vetrinary office/kennel/hospital/clinic, child care facility or similarly regulated operator.

    Let's not forget that it could be considered good public policy to tie each special/conditional use to the applicant/owner since they tend to be the person asking for the use and are agreeing on the record to conditions. Once the property is sold, that first hand knowledge of what is allowed in the special/conditional use is at the very best wattered down, along with the first hand acceptance of the conditions. Also, once the land is sold, that use may go away anyway....so what's the use of keeping it on the books forever...things may change later....
    "The modern conservative is engaged in one of man's oldest exercises in moral philosophy; that is, the search for a superior moral justification for selfishness."
    John Kenneth Galbraith

  6. #6
    Cyburbian ofos's avatar
    Registered
    Jul 2006
    Location
    Slightly Off-Center
    Posts
    8,261
    Quote Originally posted by The One View post
    In some cases the operator may have a special license from the state/feds or be qualified in some special way to operate a specified use and as such should be the named user and operator of the facility. A vetrinary office/kennel/hospital/clinic, child care facility or similarly regulated operator.
    Obviously, if the special use requires licensing, subsequent owner/operators will also need to be licensed. It just makes a lot more sense to me to have the SUP run with the land. It's hard enough to monitor zoning conformance which is relatively permanent without also having to track ownership changes of SUP properties.

  7. #7
         
    Registered
    Aug 2005
    Location
    Funky Town, CO.
    Posts
    432
    The One:
    I am not saying you can not be deligent with bad actors or people way over their head but I never have seen a codified approval criteria based on personal attributes of a particular applicant. I have told an applicant to get his act together and comply with the conditions of approval before he asks to expand an existing use and there is nothing wrong with that. Most people understand that.

    You can place a requirement for annual permit review and you can place conditions on an approval like maintaining a specific state issued license but to say only Joe Smoe can operate a certain type business because only he knows what he is doing is not fair. As long as an operator is following the approval conditions and the code then there isn't any change in the impact on the community.

    All conditional approvals I have seen are recorded either with a resolution, ordinance or special approval document and shows up in any title work. A new owner should see it there or the seller should disclose it up front.

    There is an equal protection clause in the constitution that we must follow. I have seen individual board members try to use things like ownership tenure, political orientation, religion, family relationship, and whether the applicant lives in the community or not, all things associated with a specific person, in making their decisions. They don't come out and say it but you can tell by their line of questioning and the way they vote. A good City or County attorney will come down hard on such questioning by a board because they know how bad it looks if the case gets appealed to court. The decisions must be made on the basis of facts relavent to the approval criteria. To do otherwise is a very slippery slope which I have seen people go pretty far down and it gets ugly real fast.

  8. #8
    Cyburbian The One's avatar
    Registered
    Mar 2004
    Location
    Where Valley Fever Lives
    Posts
    7,659
    Blog entries
    1

    Hmm....

    Quote Originally posted by Senior Jefe View post
    The One:
    I am not saying you can not be deligent with bad actors or people way over their head but I never have seen a codified approval criteria based on personal attributes of a particular applicant. I have told an applicant to get his act together and comply with the conditions of approval before he asks to expand an existing use and there is nothing wrong with that. Most people understand that.

    You can place a requirement for annual permit review and you can place conditions on an approval like maintaining a specific state issued license but to say only Joe Smoe can operate a certain type business because only he knows what he is doing is not fair. As long as an operator is following the approval conditions and the code then there isn't any change in the impact on the community.

    All conditional approvals I have seen are recorded either with a resolution, ordinance or special approval document and shows up in any title work. A new owner should see it there or the seller should disclose it up front.

    There is an equal protection clause in the constitution that we must follow. I have seen individual board members try to use things like ownership tenure, political orientation, religion, family relationship, and whether the applicant lives in the community or not, all things associated with a specific person, in making their decisions. They don't come out and say it but you can tell by their line of questioning and the way they vote. A good City or County attorney will come down hard on such questioning by a board because they know how bad it looks if the case gets appealed to court. The decisions must be made on the basis of facts relavent to the approval criteria. To do otherwise is a very slippery slope which I have seen people go pretty far down and it gets ugly real fast.
    While in Colorado, we put time limits on nearly every Conditional Use and the definition of special uses in many counties included a 5 year time limit maximum. Adding the name of the owner was only done in certain cases. An example would be a specific company that had to post a bond to obtain a Conditional Use permit for a sand and gravel operation on the Platte River....and the like. The transfer of ownership would allow the release of the bond and if another company wanted to have the same deal, they need a new bond and simply renew the permit....unless something changed in the last umpteen years....Comprehensive Plan....new growth....new direction for the community....a jurisdiction has got to keep their options open.

    I would agree that it should only be used in very special circumstances and that as always, the local attorney would need to approve the language.
    "The modern conservative is engaged in one of man's oldest exercises in moral philosophy; that is, the search for a superior moral justification for selfishness."
    John Kenneth Galbraith

  9. #9
    Unfrozen Caveman Planner mendelman's avatar
    Registered
    May 2003
    Location
    Staff meeting
    Posts
    8,995
    In the fair municipality in which I work, we treat this issue multiple ways depending on the nature of the use.

    For uses that tend to have a wide variability in operation/scale (such as a restaurant or banquet hall) we generally require that a new owner give us a business description outlining how they intend to operate the existing business. If it is sufficiently similar to the description during the initial special use review, we allow them to assume the special use. If it is sufficiently different, then we make them amend the speical use.

    Now for uses tied to specifically designed structures (like a drive-through), we allow them to automatically assume the special use, because there's not much they could do to alter the operation of the structure apart from expanding it, and that would require an amendment anyways.

    Now we do always tie ownership to use when a use has received a Land Use Variation. This is for uses that were not permitted in the district. These uses are specifically tied to the owners, and any new owner would need to petition for a new land use variation to operate.
    Last edited by mendelman; 14 Mar 2007 at 9:26 AM.
    I'm sorry. Is my bias showing?

    The ends can justify the means.

  10. #10
    Cyburbian cch's avatar
    Registered
    Mar 2006
    Location
    Machesney Park, IL
    Posts
    1,437
    For most Special/Conditional Uses, typically one of the conditions placed on it is that it expires when the property changes ownership. However, there are some cases where it is likely new owners would want to continue the special use exactly as it is. A couple examples are for a racetrack and a drive-in theater.

+ Reply to thread

More at Cyburbia

  1. Replies: 6
    Last post: 16 Jul 2012, 11:53 AM
  2. Replies: 25
    Last post: 23 Mar 2012, 5:15 PM
  3. Replies: 1
    Last post: 20 Apr 2007, 12:03 AM
  4. Replies: 3
    Last post: 11 Oct 2004, 11:54 AM