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Thread: How to deal with uses with no definitions?

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    Cyburbian dandy_warhol's avatar
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    How to deal with uses with no definitions?

    How does your municipality deal with undefined uses? Does your Code have a provision for undefined uses?
    In the end, we will remember not the words of our enemies, but the silence of our friends. -Martin Luther King Jr.

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    Unfrozen Caveman Planner mendelman's avatar
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    Undefined as in does not a have definition in the definition section?

    We don't have a section of the zoning code that tells you what to do in this case, but we just default to a respected dictionary.
    I'm sorry. Is my bias showing?

    The ends can justify the means.

  3. #3
    Cyburbian dandy_warhol's avatar
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    Quote Originally posted by mendelman View post
    Undefined as in does not a have definition in the definition section?

    We don't have a section of the zoning code that tells you what to do in this case, but we just default to a respected dictionary.
    correct, the intended use is not defined in the definition section.

    (i'm almost embarassed to ask ) but a follow-up question/example would be:

    so what do you do when the intended use is not in the definition section and therefore doesn't fit into any category for approvals?
    In the end, we will remember not the words of our enemies, but the silence of our friends. -Martin Luther King Jr.

  4. #4
    Forums Administrator & Gallery Moderator NHPlanner's avatar
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    Quote Originally posted by dandy_warhol View post
    correct, the intended use is not defined in the definition section.

    (i'm almost embarassed to ask ) but a follow-up question/example would be:

    so what do you do when the intended use is not in the definition section and therefore doesn't fit into any category for approvals?
    Under the way our ordinance works, the Zoning Officer would make a determination as to how the use fits into the existing categories of the ordinance, and his/her decision is then able to be appealed to the Zoning Board of Adjustment.
    "Growth is inevitable and desirable, but destruction of community character is not. The question is not whether your part of the world is going to change. The question is how." -- Edward T. McMahon, The Conservation Fund

  5. #5
    Cyburbian Richmond Jake's avatar
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    Quote Originally posted by NHPlanner View post
    Under the way our ordinance works, the Zoning Officer would make a determination as to how the use fits into the existing categories of the ordinance, and his/her decision is then able to be appealed to the Zoning Board of Adjustment.
    We have similar language in our code. I get to make the call based on hours of operation, traffic, noise, potential nuisances, etc.

    (Nobody has had the cajones to appeal my decisions. )
    Annoyingly insensitive

  6. #6
    Cyburbian dandy_warhol's avatar
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    that is what we do but we don't have that language in the code. i don't like that fact b/c then there's nothing to support me when i tell that to the public, or for that matter the Zoning Officer. he's so busy doing other things that he throws it back to me (i'm just a busy!!) for me to make the call.

    RJ, when you make that kind of decision what's your reasoning? what use it is most similar to? do you make an official decision like "RJ deems it so..." or is it a much less formal process than that?

    RJ & NHP, would either of you mind sending me that language or at least directing me to where I could find it? i think it would be useful to have that in our code as well.
    In the end, we will remember not the words of our enemies, but the silence of our friends. -Martin Luther King Jr.

  7. #7
    Cyburbian Richmond Jake's avatar
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    This phrase is going to appear in several new zone districts we are creating:

    "Other uses which are similar in nature or ancillary to the uses allowed above." "Above" being the list of allowed uses.

    This appears in our commercial uses section:

    "Other appropriate uses. These shall be determined on a case-by-case* in consideration of the following criteria: hours of operation, traffic, noise, lighting, odor, and potential nuisance to residential areas."

    When I make a determination if a use is allowed or conditional, I ask the person to provide a written program statement describing the nature of the activity proposed. Then I compare this description to the list of allowed and conditional uses and come to a conclusion. It's not rocket science. It either fits or it doesn't.


    *The term "basis" is missing from our code. But we know the intent.
    Annoyingly insensitive

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    Cyburbian dandy_warhol's avatar
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    Quote Originally posted by RichmondJake View post
    This phrase is going to appear in several new zone districts we are creating:

    "Other uses which are similar in nature or ancillary to the uses allowed above." "Above" being the list of allowed uses.

    This appears in our commercial uses section:

    "Other appropriate uses. These shall be determined on a case-by-case* in consideration of the following criteria: hours of operation, traffic, noise, lighting, odor, and potential nuisance to residential areas."

    When I make a determination if a use is allowed or conditional, I ask the person to provide a written program statement describing the nature of the activity proposed. Then I compare this description to the list of allowed and conditional uses and come to a conclusion. It's not rocket science. It either fits or it doesn't.


    *The term "basis" is missing from our code. But we know the intent.
    thanks. i agree, it isn't rocket science but things are so lax here that sometimes it creates problems. people come in kinda sorta describe what they think they might maybe possibly want to do. so anything that could help tighten up the process would be a huge help. thanks!!
    In the end, we will remember not the words of our enemies, but the silence of our friends. -Martin Luther King Jr.

  9. #9
    Forums Administrator & Gallery Moderator NHPlanner's avatar
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    It's a statutory reference in NH....RSA 676:5:

    676:5 Appeals to Board of Adjustment. –
    I. Appeals to the board of adjustment concerning any matter within the board's powers as set forth in RSA 674:33 may be taken by any person aggrieved or by any officer, department, board, or bureau of the municipality affected by any decision of the administrative officer. Such appeal shall be taken within a reasonable time, as provided by the rules of the board, by filing with the officer from whom the appeal is taken and with the board a notice of appeal specifying the grounds thereof. The officer from whom the appeal is taken shall forthwith transmit to the board all the papers constituting the record upon which the action appealed from was taken.
    II. For the purposes of this section:
    (a) The "administrative officer'' means any official or board who, in that municipality, has responsibility for issuing permits or certificates under the ordinance, or for enforcing the ordinance, and may include a building inspector, board of selectmen, or other official or board with such responsibility.
    (b) A "decision of the administrative officer'' includes any decision involving construction, interpretation or application of the terms of the ordinance. It does not include a discretionary decision to commence formal or informal enforcement proceedings, but does include any construction, interpretation or application of the terms of the ordinance which is implicated in such enforcement proceedings.

    III. If, in the exercise of subdivision or site plan review, the planning board makes any decision or determination which is based upon the terms of the zoning ordinance, or upon any construction, interpretation, or application of the zoning ordinance, which would be appealable to the board of adjustment if it had been made by the administrative officer, then such decision may be appealed to the board of adjustment under this section; provided, however, that if the zoning ordinance contains an innovative land use control adopted pursuant to RSA 674:21 which delegates administration, including the granting of conditional or special use permits, to the planning board, then the planning board's decision made pursuant to that delegation cannot be appealed to the board of adjustment, but may be appealed to the superior court as provided by RSA 677:15.
    "Growth is inevitable and desirable, but destruction of community character is not. The question is not whether your part of the world is going to change. The question is how." -- Edward T. McMahon, The Conservation Fund

  10. #10
    Cyburbian Otis's avatar
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    We have a provision as follows:

    "Authorization of Similar Uses.

    " In response to an application in relation to a specific lot, the Planning Commission may rule by resolution that a use, not specifically named in the allowed uses of a zoning district and not specified in any other zoning district, shall be included among the allowed uses if the use is of the same general type and is similar to the allowed uses. Such ruling by resolution of the Planning Commission shall thereafter be presented to the City Council for legislative enactment to amend the zoning ordinance to include such use. In addition, the ruling shall be entered in a registry available to the public that sets out the street address or other easily understood geographic reference to the lot; the date of the ruling; and a description of the ruling."

    As a practical matter, for uses in non-residential zones I get to make a call on whether the proposed use is similar enough to a use called out that it is allowed. The above process is used very rarely (like twice in the last nine years). Usually I can find the requested use in another zone so the resolution process is not applicable. In a residential zone if it's not called out it's not allowed, period. Tehn either the resolution process or an amendment is warranted. Sometimes, when it's an inappropriate use I just say, "No, not allowed. Appeal it if you want." They go away.

  11. #11
    Cyburbian Richmond Jake's avatar
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    Otis raises a good point. If it's listed as an allowed or conditional use in another zone district, it's prohibited elsewhere. The code has made accommodations for the use.
    Annoyingly insensitive

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    Cyburbian Fat Cat's avatar
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    Fat Cat

    I would agree that first look and see if it is defined in another zoned district
    Depending on your state enabling legislation you or the applicant can request the Board of Review or the Zoning Board of Appeals for the definition or you can put your opinion in writing and then the applicant can appeal to one of those two bodies,
    Next step is court
    Again this depends on you state enabling legislation

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    Cyburbian tsc's avatar
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    You are talking about a use..and I assume NYS. I would say that if the use is not listed or defined in the Zoning Ordinance, the applicant would either require a use variance or Zoning Amendment. I would push for the later, as it may be hard to meet the standards to grant a use variance. Or, they could possibly go to the ZBA for an interpretation to determine if the proposed can fall under the definition of an existing use.
    "Yeehaw!" is not a foreign policy

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    Re: How to deal with uses with no definitions?

    Quote Originally posted by tsc View post
    You are talking about a use..and I assume NYS. I would say that if the use is not listed or defined in the Zoning Ordinance, the applicant would either require a use variance or Zoning Amendment. I would push for the later, as it may be hard to meet the standards to grant a use variance. Or, they could possibly go to the ZBA for an interpretation to determine if the proposed can fall under the definition of an existing use.
    Hi,
    I have a scenario as described above in Westchester County (it appears you are from Westchester County) where I will be going to the ZBA for an interpretation to determine if my proposed use can fall under the definition of an existing use. Is there anything I can do to prepare for this meeting? The landlord's architect has submitted the paperwork to the ZBA, but I will be present at the meeting and I'm sure I'll be asked many questions...
    Thanks in advance for any help!
    Ed

  15. #15
    Cyburbian fringe's avatar
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    My take on the question posed is, "What to do with a peg that has no corresponding shape in which to stick it on the board of the scheme of things?"

    Recently a "retailer" recently opened and asked me if he could offer a tattoo service.

    No listing among permitted or conditional use. My search found that our state requires "tattoo studios" to be regulated at the county level by each one's health department, yet calls to those departments brought replies that noone from state level had ever issued any kinds of directive.

    Finally I found an MHP environmental officer downstate who had developed a complete set of regs for an urban county.

    For the original query my answer now would be to propose a zoning amendment to include such a use along with an ordinance adopting regs using the previously developed model.

  16. #16
    Cyburbian ursus's avatar
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    Quote Originally posted by tsc View post
    You are talking about a use..and I assume NYS. I would say that if the use is not listed or defined in the Zoning Ordinance, the applicant would either require a use variance or Zoning Amendment. I would push for the later, as it may be hard to meet the standards to grant a use variance. Or, they could possibly go to the ZBA for an interpretation to determine if the proposed can fall under the definition of an existing use.
    With regard to the "use variance" you should be careful, unless I am understanding this term wrong. In many, if not most, state's enabling legislation language it would be inappropriate to grant a variance for a use. Variances are reserved for physical site issues.
    "...I would never try to tick Hink off. He kinda intimidates me. He's quite butch, you know." - Maister

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