Understanding the Conditional Use Permit

The Conditional Use Permit can be found throughout the Minutes of the Town of Christiansburg Town Council Meeting Minutes. I am providing some basic information concerning this ‘device’ in order to point out a common denominator, conditions. A Conditional Use Permit must contain conditions and those conditions are required to be fairly specific to the use to be applied and the impact that use has on neighboring properties. More on this particular topic will follow these bits of background information:

There is a website available that is a good resource in understand land use issues. HousingVirginia.org.  In particular, I have found their Glossary of Housing Words and Terms to be very helpful. For instance, here is the definition for Conditional Use Permit.

• conditional use permit
  A conditional use permit (CUP) is granted by a municipality to authorize a development type or land use on a specific lot that would not otherwise have been permitted by the underlying zoning code. In many cases, the permit is granted only upon the fulfillment of certain conditions. For example, the developer of a multifamily project may receive permission to build at a higher density than ordinarily allowed in exchange for the inclusion of a modest share of affordable homes in the development.

The Conditional Use Permit essentially becomes a trade-off, the property owner wants to do something that does not conform to the use of the property as it is currently zoned. The person comes up with offers of something that the jurisdiction deems beneficial to offer in exchange for being allowed to  apply the use that is not within the by right use under the zoning designation. Seems simple? Not so much. There are certain criteria that must be met in evaluating the impact and the conditions must be related to that impact.

For a clearer and far more extensive discussion on the Special/Conditional Use Permit, go to the website of Albemarle County Virginia’s County Attorney webpage and look at the Land Use Law Handbook. Specifically, look at Chapter 12 of this multi-section document. (I wonder how many of our Town Council or Planning Commission members have made use of this document?) The materials are presented in an easy to read manner and State Code is clearly cited as are relevant Court cases. Special/Conditional Use Permits are used interchangeable although they are somewhat different.

With Special Use Permits, the Zoning Ordinance contains special exemptions to a particular Zoning designation to which Special Use Permits can be applied. These exemptions are clearly defined in the Zoning Ordinance as a list of uses that can be applied with Special Use Permits. The Christiansburg Town Code does this using the term Conditional Use Permit in many of the Zoning areas, where you find that ‘X & Such” can be done although it is not a by right use by using a Conditional Use Permit. The Christiansburg Town Code also allows for a multitude of unlisted variations which can be done if the person presents a Conditional Use Permit that is approved.

On the first page of Chapter 12 Key Principles About Special Use Permits are carefully laid out. This is a list of 6 primary criteria that are components of such permits.  In particular for this article  are the second, fourth and fifth ones in that list:

• “Uses allowed by special use permit are considered to have a potentially greater impact than those allowed as a matter of right.”
• “Impacts from special uses are addressed through conditions.”
• “Conditions must be reasonably related to the impacts to be addressed, and the extent of the conditions must be roughly proportional to the impacts”

Page 2 provides a list of those “Uses for Which a Locality May Not Require a Special Use Permit”. Of particular note here is 6th in the list: “As a condition of approval of a subdivision plat, site plan or building permit for a residential development where the dwellings meet the use, height and density requirements allowed by right, with exceptions in Virginia Code § 15.2-2288.1.” This is what has created quite a few disgruntled citizens in Christiansburg where developers have talked about designs and Conditions under a Conditional Use Permit that never materialized after the land was re-zoned at the developer’s request.

A search of the Christiansburg Town Code yields:

Definition of Special use permit.  See Conditional Use Permit. (That wasn’t very helpful because Conditional Use Permit isn’t in the definitions. Instead it is found in Sec. 30-8 of the Town Code:

Sec. 30-8. Conditional Use Permits.   Where so stated by this chapter, the location of permitted uses shall require, in addition to the zoning permit and certificate of occupancy, a Conditional Use Permit approved by the Town Council when authorized as herein after provided.  A Conditional Use Permit should be approved only if it is permitted as a conditional use in the district regulations and only if it is found that the location is appropriate and not in conflict with the Comprehensive Plan, that the public health, safety, and general welfare will not be adversely affected, that adequate utilities and off-street parking facilities will be provided, and that necessary safeguards will be provided for the protection of surrounding property, persons, and neighborhood values, and further provided that the additional standards of this chapter are complied with.  In approving a Conditional Use Permit the Town Council may impose such reasonable conditions as it believes necessary to accomplish the intent of this chapter.  Unless otherwise specified in this chapter or specified as a condition of approval, the height limits, yard spaces, lot area, and sign requirements shall be the same as for other uses in the district in which the proposed conditional use is located. In determining the conditions to be imposed, the Town Council shall take into consideration the intent of this chapter and may impose reasonable conditions that:  abate or restrict noise, smoke, dust, or other elements that may affect surrounding property; establish setback requirements necessary for orderly expansion; prevent or alleviate traffic congestion; provide for adequate parking and ingress and egress to public streets or roads; provide adjoining property with a buffer or shield from view of the proposed use if such use is considered to be detrimental to adjoining property; tend to prevent such use from changing the character and established pattern of development of the community.

Any use listed as requiring approval of a Conditional Use Permit and which use legally exists at the effective date of the regulations of this chapter shall be considered a nonconforming use unless it has been approved as a conditional use by the Town Council.  Conditional Use Permits may be revoked by the Town Council, Town Manager, or Zoning Administrator if the conditions of such permit are not fulfilled.  Nothing contained in this chapter shall be construed to compel the Town Council to issue a Conditional Use Permit.  Conditional Use Permits approved shall be subject to administrative review on an annual basis.  The Town Council, Town Manager, and Zoning Administrator are authorized to require supplemental Conditional Use Permit(s) if questions of compliance should arise regarding any provision of this chapter.  (Code 1972, § 30-8; Ord. of 6-2-98; Ord. of 4-20-99)

Page 3, last paragraph of the Law Use Handbook provides the minimum standards which should be applied: (1) “the impacts of the special use on the character of the district; (2) the impacts of the special use on the welfare of the landowners and occupants of land in the district … ; and (3) consistency with the comprehensive plan”. … Other factors which MAY be considered are ” (1) the character of the property; (2) the general welfare of the public; and (3) the economic development of the community. …”

Page 7 provides a list of Five Reasonable Grounds to Deny a Special use Permit which include: inconsistency with the comprehensive plan, adversely impacts character of neighborhood, adversely impacts road or creates “hazardous traffic situation”, adversely impacts abutting property.

One excerpt from the Virginia State Code:

§ 15.2-2296. Conditional zoning; declaration of legislative policy and findings; purpose.

It is the general policy of the Commonwealth in accordance with the provisions of § 15.2-2283 to provide for the orderly development of land, for all purposes, through zoning and other land development legislation. Frequently, where competing and incompatible uses conflict, traditional zoning methods and procedures are inadequate. In these cases, more flexible and adaptable zoning methods are needed to permit differing land uses and the same time to recognize effects of change. It is the purpose of §§ 15.2-2296 through 15.2-2300 to provide a more flexible and adaptable zoning method to cope with situations found in such zones through conditional zoning, whereby a zoning reclassification may be allowed subject to certain conditions proffered by the zoning applicant for the protection of the community that are not generally applicable to land similarly zoned. The exercise of authority granted pursuant to §§ 15.2-2296 through 15.2-2302 shall not be construed to limit or restrict powers otherwise granted to any locality, nor to affect the validity of any ordinance adopted by any such locality which would be valid without regard to this section. The provisions of this section and the following six sections shall not be used for the purpose of discrimination in housing.

(1978, c. 320, § 15.1-491.1; 1997, c. 587.)

These all show that conditions MUST be part of the Conditional Use Permit. Otherwise, you are not looking at Conditional Use, you are looking at “Spot Zoning” which is, ah…oh, yeah, Illegal! As noted on the Rezoning Application for Bristol Virginia planning Commission form as a notice to applicants: “The Planning Commission cannot grant requests for “Spot Zoning” which has been defined by the Supreme Court as:”

“Spot Zoning is the process of singling out a small parcel of land for a use classification totally different from that of the surrounding area, for benefit of owner of such property and to the detriment of other owners, and, as such is the very antithesis of planned zoning.”

What does all of this have to do with the Town of Christiansburg? Well, I finally got the copy of the CUP Index (required by State Code) that is kept at Town Hall. That data is available in .pdf format at http://myvaresources.com/Special/CUPs_Zoning%20Permits.pdf. Please feel free to check the following data:

• Since 1962 a total of 621 Conditional Use Permits have been submitted (111 from 2005 thru 2010 – 18% of the 1962 thru 2010 total)
• 446 of those were approved (97from 2005 thru 2010 – 22% of the 1962 thru 2010 total)
• 175 were not approved (denied, withdrawn, etc.) (14 from 2005 thru 2010 -8% of the 1962 thru 2010 total)
• Of the 621 Total CUPs from 1962 thru 2010, 180 (29%) of those have no information in one column, the column used to identify the # of conditions. Of those 180, 14 specifically denote that there are no conditions associated with the Conditional Use Permits, the remainder are just left blank.
• Of the 621 Total CUPs: 72 had  1 condition, 26 had 2 conditions, 35 had 3 conditions, 30 had 4 conditions, 18 had 5 conditions, 17 had 6 conditions, 7 had 12 conditions, 11 had 8 conditions, 11 had 9 conditions, 10 had 10 conditions, 9 had 11 conditions, 9 had 12 conditions, 3 had 13 conditions, 2 had 14 conditions, 0 had 15 conditions, 0 had 16 conditions, and 1 had 18 conditions.

I’ll let you do the math from there and plug the numbers into the definitions. For myself, I’ll assume that at best, there is a lot of missing information and a fair few cases of Spot Zoning. Too bad the actual conditions are not listed on the sheet so that they could be monitored for compliance easily by the Town. Fortunately, a lot of this information can be found in the records that I FOIA’d from the Town so I can look at some of the stuff before planning a lengthy work session at Town Hall to try to fill in the blanks. (see chart to get an idea of frequency of CUPs over time and whether they were approved or not)

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