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

[Stephen J. Vertin MAI]

Denis:

Thank you for taking the time to explain it thoroughly. And thank you CANative for your succinct clarification. In most places in the Midwest they use the term special use permits for what you describe but we do not have the subtleties you have out west. They are very lose with language here in zoning matters. They call a special use permit a variance in the code. I guess they believe it is a variance from business as usual. In fact sometimes I wish it were more precise. It makes it hard to deal with set-back issues related to PD zoning. Such as setbacks are required when adjacent to R zoning and or in the same paragraph setback are required in a R district (does that mean PD districts that allow residential uses also?). Anyway, good luck.

 

[CANative]

It makes it hard to deal with set-back issues related to PD zoning.

PD zoning is there so the city can figure out "what's in it for them." If the plan makes sense for the city the set-backs and other trivial requirements go out the window. If not they will kill an otherwise great project.

 

[hastalavista]

Anyway, good luck.

Thanks!

 

[The Warrior Monk]

In the areas I work, they have special exception uses. To give examples in a residential zone, a house of worship, hospital, firehouse, and sewage treatment plant would fall under that category. These types of properties may be needed in a residential zone, but not every site is suitable for these types of improvements, hence additional approval is necessary. However, the use continues typically continues with change of ownership. It's possible that paperwork needs to be filed simply to comply with various laws (though that can also apply to of right uses).

 

[Doug DeMars]

Hey Denis-
IMO, the CUP is a non-conforming scenario. Non conforming uses are generally defined by either the use itself or due to the restrictions identified in the development standards that do not readily allow the existing improvements to be constructed (e.g. a substandard parcel configuration). The CUP is a logical "easy modification" by the planning department to make reasonable exceptions to the rules. If not by the planning department...they kick the approval to the city counsel (or similar board).

I concede there's some gray area here. But...a CUP (or variance by any other name) is akin to non-conformity more than conformity. Otherwise...what do you mean by conforming? Conforming to what? The code? The CUP simply keeps the use into the "legal" status (possibly "forever") but doesn't change the definition of conformity.

 

[CANative]

I disagree Doug. Non-conforming uses by definition are uses allowed when the use or structure was built conformed to the then current laws but do not conform to existing laws. Conditional uses, variances and special permits apply to uses within a district which does not allow the use by right but does allow granting of the use after a public hearing.

Here are the definitions and codes from Contra Costa County:

· Chapter 82-8 - NONCONFORMING USES

Sections:


· 82-8.002 - Defined.

Any lawful use of land or buildings existing at the time Divisions 82 and 84 becomes effective, which use does not conform to the provisions of Divisions 82 and 84, shall be a nonconforming use and shall not be in violation of Divisions 82 and 84 until the use is discontinued or ceases for any reason.

(Prior code § 8107(a): Ord. 431).

· 82-8.004 - Repair—Rebuilding.

If any building or structure constituting a nonconforming use is destroyed or damage by fire, explosion, act of God or the public enemy, or other accident or catastrophe, after the effective date of Divisions 82 and 84, or if an existing use of land is temporarily terminated for any of these reasons, the building or structure may not be repaired or rebuilt if damaged in excess of fifty percent of its reasonable market value at the time of destruction or damage. Any existing nonconforming use of land which is interrupted by any of these causes may lawfully be resumed within six months of the interruption.


26-2.2008 - Variance, conditional use and special permits—Conditional use permit standards.

An application for a conditional use permit is an application to establish a conditional land use within a land use district which does not allow establishment by right, but does allow the granting of a land use permit after a public hearing. The division of the planning agency hearing the matter either initially or on appeal, shall find the following before granting the permit:

(1)

That the proposed conditional land use shall not be detrimental to the health, safety and general welfare of the county;

(2)

That it shall not adversely affect the orderly development of property within the county;

(3)

That it shall not adversely affect the preservation of property values and the protection of the tax base within the county;

(4)

That it shall not adversely affect the policy and goals as set by the general plan;

(5)

That it shall not create a nuisance and/or enforcement problem within the neighborhood or community;

(6)

That it shall not encourage marginal development within the neighborhood;

(7)

That special conditions or unique characteristics of the subject property and its location or surroundings are established. Failure to so find shall result in a denial.

(Ord. 1975: prior code § 2204.40: Ord. 917).

 

[Doug DeMars]

I guess it depends upon interpretation.

The Contra Costa County code doesn't explicitly exclude variances (e.g. CUP) from the nonconforming status. I think we would all agree that a grandfathered scenario is clearly a nonconforming situation.

All grandfathered scenarios are legal non-conforming. But are all legal non-conforming scenarios only ones that are grandfathered?

In what situation would you consider a non-grandfathered scenario as legal non-conforming? IMO, that's where CUP comes into play.

 

[CANative]

You can't get a permit for an illegal use. A CUP is among the permitted uses (as opposed to allowable uses or use by right) that required a land use permit. Use by right or allowable uses (the terms are synonymous) do not require land use permits. Just building permits.

The logic of this leads me to think a use requiring a CUP is not a non-conforming use. It's a conforming use which requires a certain type of land use permit.

 

[Doug DeMars]

I see some flexibility in the interpretation...

In what scenario would you consider a legal non-conforming use other than grandfathered? Is there no distinction?

 

[Doug DeMars]

Regarding a recent scenario...

I recently appraised a 6 unit apartment in SF built about 90 years ago. Multi-family use is legal, the configuration is non conforming due to current development standards with respect to density and off-street parking requirements. Clearly "Legal non-conforming" and a grandfathered use.

The landlord is now in the process with the city to add additional units on the lower level. Akin to a CUP. Planning approval has potential despite the current non-conforming status; this is partly due to the current environment with the city to encouraging more dwelling units to be constructed. Upon approval (if granted), does this now make the property legal conforming or legal non-conforming?