Conditional Use Permit = "legal, Non-conforming"?

[Sid Holderly]

If the use does not change after selling it will continue. I would want to confirm that though since regs/interpretation can change depending on who is doing it.
If it were mine I would want a letter saying that it will not change if being used for the same thing. Amendments to the code are not often well published.

 

[glenn walker]

Conditional "means conditional ***

 

[Walter Kirk]

I'm not familiar with California regulations but I am a former city planner and tax assessor.
My experience defines legal non-conforming uses as uses which are not in conformity with current zoning but are legal due to grandfathering or zoning variance.

 

[Stephen J. Vertin MAI]

I have not read the replies but legal non-conforming use is a perfectly acceptable term. The use is "legal" because the holder of the bundle of rights applied for a variance and obtained said variance. Therefore, it is now legal. However, it is non-conforming due to requiring a variance because it is not in conformity of the code. Thereby, making it legal non-conforming.

 

[hastalavista]

I have not read the replies but legal non-conforming use is a perfectly acceptable term. The use is "legal" because the holder of the bundle of rights applied for a variance and obtained said variance. Therefore, it is now legal. However, it is non-conforming due to requiring a variance because it is not in conformity of the code. Thereby, making it legal non-conforming.

Hi, Stephen-

I wouldn't call a conditional use permit a "variance" (but that's me).
The use is consistent with the zoning ordinance. A conditional use permit is required; administrative review to ensure that the potential use "fits" with the property. The CUP transfers with the property.
IMO, conditional uses are "legal and conforming". But, as I have learned in this thread, other appraisers have differing views (surprise, eh?).

 

[hastalavista]

I'm not familiar with California regulations but I am a former city planner and tax assessor.
My experience defines legal non-conforming uses as uses which are not in conformity with current zoning but are legal due to grandfathering or zoning variance.

My sense tells me the same thing as your hands-on experience. That's why I'd describe a use that requires a CUP but is defined within the ordinance as an allowable use, as a "legal, conforming" use.

And I guess that's my point (as I see it):
The zoning code describes a number of allowable uses.
Some are allowed by right; there is no additional process to use the property for those uses.
Some are allowed by conditional use permits; and those can be segmented into an "administrative review" or a "planning commission review". I don't want to characterize the administrative review as a mere formality, but as a rule, unless there is something specific about the property's location that would deem the use undesirable, they are routinely approved.
The planning commission use is more complex. An example of that occurred in my residential neighborhood a few years ago. A home was being used as a residential day care facility. This is permitted use, but it it limits the number of children at the facility. If the facility wants to have enroll more than that, it can apply for a conditional use. That conditional use requires planning commission approval.
Interestingly enough, in my example, the planning commission turned down the original request down. The owner of the home then had the right to have her case heard before the city council. The city council approved the use. It wasn't a zoning variance; it was an approved use (by code) but required the conditional use permit.
In that example, the CUP does not transfer with the property if sold.

 

[Stephen J. Vertin MAI]

Hi, Stephen-

I wouldn't call a conditional use permit a "variance" (but that's me).
The use is consistent with the zoning ordinance. A conditional use permit is required; administrative review to ensure that the potential use "fits" with the property. The CUP transfers with the property.
IMO, conditional uses are "legal and conforming". But, as I have learned in this thread, other appraisers have differing views (surprise, eh?).

Since the terms are fairly interchangeable in the Midwest (sort of like cap rate, capitalization rate, direct capitalization rate, etc.,) and I am always interested in different states, counties and municipalities interpretations please elaborate as to why you would not call them the same or at minimum similar? A variance requires the same process you mentioned and carries the same transfers (other wise you would have to redevelop every time a property was sold). Some places never use the term conditional use permit they call it a special use permit.

I am not sure people have differing views. What I do know is different government entities have different rules and regulations. But no matter what regulations govern I do not believe calling something a legal non-conforming use when it is a legal non-conforming use is incorrect.

 

[CANative]

I can't read all the responses. A "use by right" is a use that does not need a use permit. Just a building permit. Under the list of other uses which do require a permit there might be many options, including the gas station/C-store. It may represent a more intensive use of the land and the planners want more control in the process, therefore a CUP is required. It's still a legal, conforming use.

 

[hastalavista]

Since the terms are fairly interchangeable in the Midwest (sort of like cap rate, capitalization rate, direct capitalization rate, etc.,) and I am always interested in different states, counties and municipalities interpretations please elaborate as to why you would not call them the same or at minimum similar? A variance requires the same process you mentioned and carries the same transfers (other wise you would have to redevelop every time a property was sold). Some places never use the term conditional use permit they call it a special use permit.

I am not sure people have differing views. What I do know is different government entities have different rules and regulations. But no matter what regulations govern I do not believe calling something a legal non-conforming use when it is a legal non-conforming use is incorrect.

I thought I explained myself in post #16?

Here is an excerpt from the local zoning ordinance (Livermore, CA):


It seems fairly clear to me:
CUP applies to uses that are consistent with the allowable uses in the zoning ordinance. As CAN states (quite correctly), the requirement for the CUP allows the planning officials to review the specifics of the site and the use.
The use is legal (it is stated as a permissible use in the ordinance).

A variance is pretty much what the definition of the word means: It allows something to be approved that varies (is different) from what is permissible in that specific zone or district.

The difference is permissible (CUP) vs. not-permissible (Variance) under a specific zoning overlay. The above excerpt makes that clear (at least, to me).


As you say, there may be different "traditions" in different parts of the country. Perhaps in your neck of the woods, a variance means the same as a CUP in my neck of the woods.
But I would think in all woods, if something is permissible under the code, then it is a legal and conforming use. You are beginning to persuade me that I might be in error. In your neck of the woods, something that is permissible may be non-conforming. I wouldn't think to consider something that is permissible in the zoning ordinance to be non-conforming with the zoning ordinance (grandfathering notwithstanding).

 

[CANative]

A variance is for non-permitted uses. A CUP is for permitted uses that need more scrutiny.