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Thread: Revising conditions to a special use permit

  1. #1
    Cyburbian
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    Revising conditions to a special use permit

    Long story short, but before I started my job, an applicant had applied for some special use permits related to having a campground, outdoor event venue, and a lodge at the site of a popular brewery. The Board put some conditions on the property that included that a CO could not be issued until a fence was installed. At this point, no final approvals have been given for any of the uses included in the SUP, and the applicants haven't applied for any building permits.

    There was an event on this site (allowed by-right) a few weeks ago, and the fence wasn't up yet. One of the Board members was upset, so I pulled the language and showed him. I explained that they weren't in violation of the conditions because they have not asked for any CO's yet. He said that that wasn't what they intended to say and that the Board hadn't seen the resolution before they voted on it. I went back and pulled the minutes that showed that the resolution was prepared for the Board's review prior to them approving the SUP.

    At their last meeting, the Board discussed it, decided that wasn't what they meant, and had the County Administrator prepare a revision to the original condition stating that they needed to go ahead and put the fence up now. I was copied on the letter, and have some serious issues with it. I don't know that it's legally enforceable as a condition at this point since there was not an additional public hearing and the applicants weren't present. I'd need to talk to the attorney before I did try to enforce it if they call on me to do that. In general, though, that's a terrible precedent to set. And second, they're not doing anything that technically requires a special use permit, so amending the terms of the condition still isn't something that I could enforce for the particular issue they had even if it was legally enforceable.

    How would y'all handle this? Would you push back at all with your concerns? Would you just cross your fingers and hope the event people comply with the terms even though it's probably not legally binding? Would you attempt to enforce it?

  2. #2
    Cyburbian fringe's avatar
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    ...don't think they could revise the conditions they approved before, but they might have some footing if definition of CO has any wiggle room, as in occupancy meaning beginning of use as allowed by condition.

    Here zoning trumps building inspection, as it contains inspection as an agency of application.

    I wonder why the fence is such a big deal?

  3. #3
    Cyburbian
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    I don't think there's really any wiggle room. CO's are literally just the last sign-off an occupied building would get. Campgrounds don't get CO's, but the lodges and stuff would.

    The issue is more related to events that are held on the property. It's just that these temporary events are already allowed by-right, so when they came in to apply for these other uses, the neighbors complained about people being on their property, and the fence became a huge sticking point.

    But I sent the attorney a copy of the letter that was copied to me and asked if he'd seen it, that I didn't want to enforce it, and just wanted his opinion if I was asked to enforce it. The attorney then emailed the CA that we didn't think it was enforceable. Haha. So... if I'm pushed, I think that takes care of that. But the applicants will more than likely just go ahead and put it up.

  4. #4
    Cyburbian AG74683's avatar
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    So it sounds like the requirement of the fence and the event he held on site a few weeks ago are really two separate and distinct issues? IE, the fence was required as a function of CUP approval for some other non-related uses that the applicant has yet to act on?

    If that's the case, not much you can do IMO to require the fence until he starts to initiate the uses in the CUP. It looks like the Board didn't think to require the fence up front immediately, that's on them. They can't arbitrarily add that as a condition after the fact.

    As for what I would do....probably send them a letter telling them to put the fence up IF I knew I'd have full backing of the CM and Board. If they don't like my decision, they can appeal it. I know the appeal will go my way because the Board is the one who wanted it done. If they don't like what the Board says, they can go to court over it.

  5. #5
    Cyburbian
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    I don't think I'm going to enforce it. The County Administrator sent them a letter saying they want the fence up immediately. The applicants haven't done anything at this point to trigger the requirement that the fence goes up. The issue is over managing crowds at events, but the fence is technically tied to other uses. They used the fact that the applicants want these other uses to get the fence put up. But they've lost track of what the actual special uses were that the fence is tied to.

    I get what you're saying about enforcing since that's what the Board said it wanted, but I also feel strongly that it's part of my job to enforce regulations fairly. And since I have the County Attorney on board with my determination, I think I'm comfortable standing firm on that issue. I'm not going to tell the applicants NOT to put the fence up - if they want to comply with the request from the Board, that's fine. If I'm pushed to enforce it, I'm going to decline.

  6. #6
    Cyburbian Plus
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    Non attorney spokesperson & no I didn't stay at a Holiday Inn Express

    1 - Can't change conditions of approval - without applicants consent or without proper public meeting or notice.
    2 - sounds like this shaping up be a Kobayashi Maru scenario

  7. #7
    Cyburbian dw914er's avatar
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    Quote Originally posted by gtpeach View post
    At their last meeting, the Board discussed it, decided that wasn't what they meant, and had the County Administrator prepare a revision to the original condition stating that they needed to go ahead and put the fence up now. I was copied on the letter, and have some serious issues with it.

    How would y'all handle this? Would you push back at all with your concerns? Would you just cross your fingers and hope the event people comply with the terms even though it's probably not legally binding? Would you attempt to enforce it?
    The first part would be illegal here; the Brown Act requires that any discussion/action on a proposed project is required to be formally noticed. Regardless, they could not initiate a change to the conditions after the fact. If there was a concern, you could work with the applicant to have them install the fence earlier than required as a good faith effort, but that would likely be it. Are there other conditions that can give you wiggle room to intervene?
    And that concludes staff’s presentation...

  8. #8
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    Quote Originally posted by dw914er View post
    The first part would be illegal here; the Brown Act requires that any discussion/action on a proposed project is required to be formally noticed. Regardless, they could not initiate a change to the conditions after the fact. If there was a concern, you could work with the applicant to have them install the fence earlier than required as a good faith effort, but that would likely be it. Are there other conditions that can give you wiggle room to intervene?
    correct any change to a SUP/CUP would require formal public meeting to just like the original request. Whatever public notice is required and then the actual hearing to amend the SUP/CUP. Agency can not change the CUP on the fly.

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