Transcript Slide 1

Relief and Special Instruments
The Basic Mechanics of Changes, Permits, and Special Approvals
Part 1- Hearing and Meeting Management
Fair Hearings
Access
Due Process
Management
Public In formation
Qualifications/Conflicts
Ethics
Dis-qualifications
Pepsi, Popcorn and Other Antics
At A Public Hearing
Pendley v Lake Harbin Assoc
• The complaint by citizens of the Lake Harbin Civic
Association alleges that three rezonings by the County
Commission were null and void.
• The Commissioners of Clayton Co., Georgia scheduled 36
hearings to begin at 7:30 PM
• 1,200 – 1,500 hundred people came and
the commission room
holds about 50 persons
• The hearings did not end until
about 3:30 AM
Imaging This!
• People were packed so tightly in the hearing room and in
the hall that they could not move
• One person showed up at 7:30 and the room was already
so tightly packed that it took him ½ hour to find a place to
stand
• There were no microphones so nothing could be heard
• About 100 people were crammed into the hearing room
that would accommodate 50 people
The Hearing
Reaction to the Hearing
Trial Court
• The court finds that conducting the county business of
zoning after midnight and into the early morning hours
• And on a day other than as previously advertised
• And in one of the small public meeting rooms in the
courthouse where only a small number
of the approximately 1,200 to 1,500 people present had
access, was unreasonable to the
extent that the general public was
deprived of an effective, meaningful
public hearing
Fairness, Procedures, And Other
Nastiness
Conflict of Interest?
The heart of the principle of due process is
“fairness.” When does a rezoning action become
so unfair that it becomes necessary for the court to
invalidate the process to protect the individual?
McVoy v Township of Montclair
• St. Luke's Episcopal Church applies for a
variance to permit the Church to use its rectory
as a boarding house for seven to nine senior
citizens, contrary to the uses permitted in the R-1
One-Family Residence Zone where it is located
• The variance also permits the Church to provide
only five off-street parking spaces instead of the
eight required by ordinance for the proposed
use.
• The Board of Adjustment approves the variance
The Controversy
• Some objectors expressed resentment because
the Church had failed to advise and consult with
its neighbors until it was required by law to give
notice them in order to obtain the variance.
• New Jersey law states that: “No member of the
board of adjustment shall be permitted to act on
any matter in which he has, either directly or
indirectly, any personal or financial interest.
• Two members of the BZA were also members of
the Church Board.
The Trial Court
• The two BZA members stated that they felt pressured into giving
their consent because a large number of residents, eager to be
heard, had assembled for the hearing and if the two Board
members did not participate, the hearing would have had to be
postponed to obtain a quorum.
• The trial court rules that the decision was valid since the two
members of the BZA disclosed their church membership before
the hearing began
Appeals Court
• The Board Members claim that their membership
in the church did not influence them in any way.
But, the Court Said that: “It is the existence of
such interests which is decisive, not whether they
were actually influential”
• Concern for the impartial exercise of quasijudicial authority, in appearance as well in fact,
requires that where a member of a board of
adjustment must disqualify himself in a matter
because of a conflict of interests, the
disqualification is absolute and cannot be
waived
Manookian v Blaine County
• The issue in this case is whether an Idaho law prohibits a
member of a planning board or zoning commission or a
member of the county board of commissioners from taking
part in the zoning process if they are owners of or have an
interest in property that is the subject of the rezoning
The Law in Question
• “A member or employee of a governing board,
commission, or joint commission shall not participate in
any proceeding or action when the member or employee
or his employer, business partner, business(,) associate, or
any person related to him by affinity or consanguinity
within the second degree has an economic interest in the
procedure or action. Any actual or potential interest in any
proceeding shall be disclosed at or before any meeting at
which the action is being heard or considered”
The Players
• The alleged conflict of interest in question
centered around the participation in the zoning
process of two men, Robert Gardner and Nick
Purdy. Robert Gardner was a member of the
Blaine County Planning & Zoning Commission
and subsequently, in January, 1983, became a
member of the Blaine County Board of County
Commissioners. Nick Purdy was at all times
relevant herein a member and chairman of the
Blaine County Planning & Zoning Commission.
Nick Purdy & Robert Gardner
And, of Course, Idaho Power
The Background
• Idaho Power needs a conditional use permit to
construct their transmission line line
• This line would run through land owned by the
Purdy’s and Gardner’s. The Power Company
had already purchased all the necessary
easements except one from Gardner
• From the beginning, the Purdy’s and the
Gardner’s had objected to using their property
for a power line route
The Different Route
• Public hearings are held before the planning commission.
A conditional use permit is issued but for a different route
that avoids the Purdy’s and Gardner’s property
• Gardner votes and Purdy did not. Yet, Purdy participated
fully in the discussion
• The new route is significantly more expensive for Idaho
Power and is, in part, environmentally destructive
The County Commission
• The County Commission approves part of the
route but approved a new route that avoids
environmentally sensitive areas
• The new route runs through the land of
Manookian
• By the time the decision really heated up Robert
Gardner has been elected to the County
Commission and no longer serves on the
Planning Board
The Final Hearing
• At the final County Commission hearing Gardner
admits that he has a conflict of interest, did not
vote, but fully participated in the hearing
• Manookian files suit and the district court
invalidates all the actions because Purdy and
Gardner have conflicts of interest
Appeals Court
• If you are barred from participating does this mean that
you just cannot vote?
• No, the Court says, it means that you cannot participate in
any way
• In adopting this law the legislature acted to assure that,
consistent with our democratic principles, only impartial
and objective persons make decisions affecting other
persons' liberty and property.
To Which Purdy/Gardner Respond
• Well, the economic impact on this property was
so slight that we didn’t think that it was
necessary to declare a conflict of interest
• “Bull”, says the court, the line created a physical
and visual impact that could preclude the land
from being developed for many things – such as
residences
The Result
•
•
•
They had a conflict of interest – pure and
simple
All the proceedings, hearings, and decisions
are void
Start over again and pay the fine
1.
How Far – Pretty Far
• How far or strongly can citizens/groups protect
against a permit or zone change?
Christian Gospel Church v City of
San Francisco
• This case is about an alleged conspiracy that prevented
the Christian Gospel church from receiving a conditional
use permit
• It begin when the Christian Gospel congregation applied
to use a single family home in a residential neighborhood
as a church, place for bible study, and meeting room. This
would include about 50 people on Sundays, Sunday
evening, and Weds. evenings
The Opposition
• A neighborhood organization, the Greater West Portal
Neighborhood Association opposed the granting of a
conditional use permit to the Church and circulated a
petition in the neighborhood Vicente calling for a denial
of the permit. The petition was signed by 190 residents.
• The Association was well organized and vigorously
opposed the permit
Reasons Why The Association
Opposed
• Too many churches already
• There are vacancies in nearby commercial areas that are
more suited
• This will not maintain the neighborhood characteristics
• There is a housing shortage already
• The church would create additional traffic hazards
dangerous to families
• The noise created would disturb the quiet of the
neighborhood setting
The Hearing
• http://go.to/gospeltent
• The Planning Commission denies the permit and
the Congregation is really upset
• The Congregation sues and says that the
Association
• The Church claims that the Association conspired
to violate the Church's civil rights by circulating a
1.
petition, testifying before
the Planning
Commission and writing letters to the editor.
• The Congregation says that the Association is not
entitled to 1st Amendment rights because they
defamed them
Decision
• The court examines the 3 prong test of thee Free Exercise
Doctrine and finds that the City did not interfere with a
tenant of faith
• Also, the court examined the pattern of conditional use
permits issued to churches that requested to use homes
and found that most were denied – this blew the equal
protection claim of the Christian Gospel Church
The Court’s Analysis
• Contrary to the arguments of the Church,
neighborhood opposition to the granting of a
conditional use permit is not unlawful and should
be considered by the Planning Commission.
• The Church claims that circulating a petition
against them violated the right – but the court
hold that: the action of the neighbors "falls
within the first amendment's protection of the
right to petition the government for redress of
grievances."
Conclusion
• The court concludes by saying that the citizens were doing
what they were supposed to do in a democracy – taking
part in their governmental decision making duties and not
drumming up a ‘Slapp Suit.
• They did not conspire to deprive the Church of its
constitutional rights – they simply exercised their 1st
Amendment rights to freely enter into the business of local
government
You Might Say the Church Came
to a Dead End
Parishioners Speaking in Tongues
After Decision
The Plan
The Plan, The Plan
Who Has a Plan
What is the Plan
Is it Written Down
Where Is It
How Big
What Does it Mean
Do You Have To Have a Plan
• From the very beginning in the 1920s our
enabling legislation has always demanded that
a “comprehensive plan must be adopted” prior
to the adoption of regulations
• However, very little is said about whether or not
you have to follow the plan in applying the
regulations
Meaning of the Plan
• Charles Haar says that the plan is like an
impermanent constitution
• Its meaning is ironclad but it may be freely
amended
Baker v Milwaukie Oregon
• In1968, the City of Milwauke adopted a zoning ordinance
which designated plaintiff's land and the surrounding area
"A 1 B" (residential apartment-business office). This
category allowed 39 units per acre. On November 11,
1969, a comprehensive plan for the City of Milwauke was
adopted by the Planning Commission. This comprehensive
plan designated plaintiff's land and the surrounding area
as high density residential, allowing 17 units per acre. On
January 12, 1970, the Milwaukie City Council passed a
resolution adopting the above plan as the comprehensive
plan for the City of Milwaukie.
Milwaukie Oregon
One of the 50 best places in America to raise a family
The Actions
• On February 27, 1973, against staff recommendation, the
Milwaukee City Planning Commission granted a variance
authorizing a proposed 95-unit apartment complex near
Baker’s property with one and one-half parking spaces per
unit rather than the required two.
• Baker says “wait a minute,” should not the variance
conform to the Comprehensive Plan that calls for 39 units
per acre?
• The City says that that there is no obligation to conform
the zoning ordinance to the comprehensive plan
The Hearing Makes The Rounds
• The trial court rules for the city saying that the
plan is just that – a plan and not the controlling
instrument for land use
• Appeals court also finds for the City
• The Oregon Supreme Ct. says that the position of
defendants evidences a fundamental
misunderstanding of the relationship between
planning and zoning.
• Following from Fasano it has been determined
that the basic instrument for controlling land use
is the comprehensive plan
What About Zoning?
• Zoning is not planning! It is the means for bringing
the plan to effectuation
• The comprehensive plan is not merely a
guideline which may be followed or disregarded
at will; although the zoning ordinances establish
the detail they must do so within the policies
established by the comprehensive plan.
• Where did you guys go to planning school!
• The Plan is like a Constitution. You can change it
but you damn well follow it until it is amended
What to Do?
• The City of Milwaukie, upon adopting a comprehensive
plan, had a duty to implement that plan through the
enactment of zoning ordinances in accordance therewith
• In summary, we conclude that a comprehensive plan is
the controlling land use planning instrument for a city.
Upon passage of a comprehensive plan a city assumes a
responsibility to effectuate that plan and conform prior
conflicting zoning ordinances to it. We further hold that the
zoning decisions of a city must be in accord with that plan
and a zoning ordinance which allows a more intensive use
than that prescribed in the plan must fail.
The City After Learning That the
Plan is Important
If you can’t learn to do something well; learn to enjoy
doing it poorly
Intermission
Larimer County v Condor
• Conder and Sommervold propose to develop a 560.76
acre parcel in the southern part of Larimer County into the
"Windemere Acres Subdivision" (Subdivision). The
proponents seek to divide the property into fifty-six lots,
generally ranging in size from 2.3 to 5.4 acres, with nine
perimeter lots larger than thirty-five acres.
• The comprehensive plan designates single family dwellings
with minimum lot area of 100,000 square feet in the FD
“Farming District” (about 2 ½ acres)
Larimer County, Colorado
Estes Park
Fort Collins
Loveland
Rocky Mountain National
Park
Front Range
Theodore Roosevelt
National Forest
View From Windemere
The Proposal
• The applicants point out that their desire is to keep this
area rural and attempted this by surrounding the subdivision by 35 acre parcels. These parcels will have
recorded covenants which prohibit more than one
residence, and are also controlled by the subdivision's
architectural control committee in regard to fencing,
home size, and construction of any out buildings.
Visual of Proposal
35 acre lots
Smaller lots
Planning Commission Review
• Planning Commission recommends that the Larimer
County Board of County Commissioners (Board) deny the
application. The Planning Commission adopted the
Planning Department's findings that "[t]he proposed
Preliminary Plat is not consistent with the Larimer County
Land Use Plan in location of the proposed use, intensity of
use, design, consolidation of services, and maintenance of
rural character."
Applicant Re-Submits
• The applicant now includes the 35 acre tracts in
the subdivision and says that the lots are an
average of 10 acres in size
• The Planning Commission again rejects saying
that the project is located in a rural agricultural
area of Larimer County. The proposed
subdivision appears suburban rather than rural in
character. The Larimer County Land Use Plan
guidelines for rural development emphasize lowintensity design that consolidates services and
maintains large blocks of open space
County’s Contention
This is what rural development looks like
The Developer’s Visualization
What The Planners Visualized
Windemere Site
Summer, 2005
South of Fort Collins Colorado
Trial Court
• The court held that "reliance on or reference to
the comprehensive land use plan" was an
appropriate basis for the Board's decision
• The court rejects the proponents' constitutional
due process claims and held that the
developers had adequate notice of the need to
comply with the master plan provisions and that
the plan contained sufficiently specific
guidelines "within the ordinary understanding of
reasonable people."
The Appeals
• The Appeal court reverses noting that they
believe that the master plan is advisory in nature
• The Colorado Supreme court holds for the
County. They note that the county’s master plan
included language that made it compulsory that
all subdivision approvals must be in accord with
the plan
The County’s View
• Although the “Farming District” allows single
family homes on 100,000 sq. ft this proposal is a
suburban type development and is not intended
to further the goals of farming or ranching
• The conclusion is that the “plan rules”
Class Questions
• What type of development could have been proposed
that might be accepted by the planning commission?
• Is the Farming District Zone poorly drawn?
Development patterns of 15 acres or more?
40 acre patterns of non-farm housing?
Special Instruments
The Conditional Use
Permit
The Special Use
Permit
The Exception
Today’s Thought – Something I
wanted to see for a long time
The Conditional Use
• The original framers of zoning realized that land
use was a complex social issue and that there
would be a number of general changes that are
necessary in planning and regulation at the local
level
• To put it simply: there is such a richness and
diversity in local land use that it is impossible to
produce a blueprint zoning a zoning ordinance
that covers all the necessary considerations for
effective community regulation.
Why Conditional
• For instance, most local planners agree that providing services
on the neighborhood level (fine grained planning) is a good idea
• Many of us would like to see low level service, such as day care,
medical centers, commercial convenience, and personal
services integrated within our neighborhood patterns
• This is not to say that day care centers (perhaps for 12 children or
more) or the local 7-11 Store should have the freedom to locate
anywhere and under any conditions in our residence districts
Orphan Uses
• Another example are the "orphan uses." These are the land
uses which everyone needs but no one wants
• We can find examples of orphan uses in every community
- funeral homes; asphalt batch mixing plants, recycling
centers; motor-cross motorcycle racing
• Most agree that funeral homes are necessary. But
planners, if they are to satisfy public demands, would be
forced to relegate funeral homes to heavy industrial
districts so as to keep them out of sight and mind. This is, of
course, inappropriate regulation and land use planning.
How It Works
• A good work-around solution for neighborhood
integration, orphan uses, and similar land uses is
to construct a land regulatory control instrument
that grants permitted use status to these
enterprises if they meet certain, and often strict,
conditions. For instance, a day care facility
might be listed as a conditionally permitted use
in a single family neighborhood district if:
Facility employees a residential design
Continued on next page
Residential Design
Or
And
Further Conditions
• Services no more than 15 persons with no more than 3
employees.
• Provides a safe and efficient means of client drop-off
(cannot be on a collector street).
• Obtains and retains state licensing.
• Operates for no more than 12 hours per day.
• Maintains dense screening at the side and rear lot lines
Screening
The Big Problem
• Because zoning is local language, the conditional use is
often hybridized to fit local needs and perception
• In some jurisdictions, such as Kansas, the conditional use
permit is optionally reviewed by the Planning Commission
- not the BZA. Frequently, conditions to obtain this use are
not listed in the zoning ordinance and the BZA is required
to investigate and state the conditions. In some rural
ordinances, nearly any use not listed as permitted can be
considered for a permit, making the conditional use
equivalent to a change in zone - or spot zone.
Even Some Signs Are Conditional
Uses
Cyclone Sand & Gravel v Ames,
Iowa
• In 1980, the landowners purchased two adjoining tracts of
land totaling approximately 80 acres
• The property lies in the flood plain of the Skunk River and is
designated as an Agricultural/Greenbelt area under the
city's land use policy plan.
• The tract lies adjacent to other farmland and an auto
salvage yard and within several hundred feet of Duff
Avenue, a street that is fronted by several businesses and
a shopping mall. Although the land is now being used for
row crops, it was specifically purchased for the purpose of
operating an extraction pit and developing the land
commercially.
Cyclone Sand And Gravel
Ames BZA Action
• The BZA denies the conditional use permit. The Zoning
Ordinances specifies a number of criteria that must be
examined before the permit is affirmed or denied
• Cyclone contends that conditional use permits are vague,
overbroad and confiscatory because they give the Zoning
Board unbridled discretion and thus permit arbitrary and
unreasonable decisions in violation of equal protection
and due process.
The Criteria
• a) Be harmonious with and in accordance with
the general principles and proposals of the Land
Use Policy Plan of the City of Ames.
(b) Be designed, constructed, operated and
maintained so as to be harmonious and
appropriate in appearance with the existing or
intended character of the general vicinity and
that such a use will not change the essential
character of the area in which it is proposed.
Is This Harmonious?
Criteria
•
(c) Not be hazardous or disturbing to existing or future uses
in the same general vicinity and will be a substantial
improvement to property in the immediate vicinity and to
the community as a whole.
(d) Be served adequately by essential public facilities and
services as highways, streets, police, fire protection,
drainage structures, refuse disposal, water and sewage
facilities, or schools.
Criteria
• (e) Not create excessive additional requirements at public
cost for public facilities and services.
(f) Not involve uses, activities, processes, materials, and
equipment or conditions of operation that will be
detrimental to any person, property or general welfare by
reason of excessive production of traffic, noise, smoke,
fumes, glare, or odors.
(g) Be consistent with the intent and purpose of the zoning
district in which it is proposed to locate such use
Appeals Court
• Viewing the ordinance as a whole, we do not find it
unconstitutionally vague. Cyclone does not claim the
ordinance constitutes an unlawful delegation of legislative
authority to the Board but rather contends that it grants
unbridled discretion in the decision making process.
Decision
• While the ordinance does rely on general standards, these
guidelines are designed to allow the Board to make
findings and determinations that are appropriate to the
peculiar circumstances presented by each special use
application
• The ordinance requires a proposed use to conform to the
general land use policy of the city, generally fit in with
existing property uses in the vicinity and not be detrimental
to other property owners or the general public. So limited,
the ordinance is sufficiently specific since zoning standards
need not be so detailed as to eliminate entirely any
element of discretion from the Board's decision
Amoco Oil v Minneapolis
Amoco Oil applies for
a conditional use to
operate a 24 hour
convenience store
and gasoline sales
The Zoning Ordinance permits this use but the
conditional use permit was to operate between the
hours of 6:00 AM - 11:30 PM
Review
• The staff at the Minneapolis Planning Department
recommended denying the application for twenty-fourhour service for two reasons.
• First, the city's comprehensive zoning plan had
designated the area as a "neighborhood retail" area.
Consequently, the twenty-four-hour operation would be
contrary to the intent of the comprehensive plan.
• Second, because of the noise, lights, traffic and activity
that would exist all night, the staff felt the twenty-four-hour
operation would be injurious to the single family
residences that are located immediately to the west of the
facility.
• The establish planning commission, using the staff reports,
approves the permit after they established conditions
Amoco Replies
• We will fix it!
• Specifically, Amoco agrees to build a wooden fence
between its property and its neighbors, install special
lights, relocate the curb cut on 54th Street to avoid
conflicting traffic flows, and limit gasoline deliveries and
operation of the car wash to between 7:00 a.m. and 10:00
p.m. These changes apparently satisfied the neighbors
• However, the governing body denies the permit
The Court Says
• While appellant presented all this evidence to
show that the operation would not adversely
affect the neighborhood
• The city presented no evidence that the
operation would increase traffic, light, or noise in
the area. Instead, it relied extensively on the
residential character of the neighborhood in
which appellant wishes to locate its facility.
Wait A Minute
• The court says you misunderstand the nature of the
conditional use permit
• If the applicant can meet the conditions set down – then
the permit should be granted
• You can’t just make up conditions – they need to be
stated in the ordinance
• Saying the it “does not conform” does not cut it
• You can’t say the neighbors have to all like it
So – Amoco Wins and Says
Palm Beach
Town of Palm Beach, Florida – 10,400 persons (2006) & the per
capita income is $209,213 – Connecticut has the highest per
capita income of all states - $47,819. Palm Beach is the 25th
richest town in America
If Palm Beach Is The 25th – Then Where
Are The Top 5?
Home Of ……….
Pollard v Palm Beach
• Applicant applies for a SPECIAL EXCEPTION in a
residential neighborhood to permit a
congregate living facility for the elderly
• At the hearing the neighbors threw a fit saying
that it would cause excess light, traffic, noise
pollution, and generally impact the area as a
whole
Standards of Proof
A special instrument is to be won or lost and a decision
must be based on fact
Ideally, speculation has no place in the review for a
special instrument
In other words – when you request hard facts from
someone seeking a permit – the expectation is that
everyone has the same level playing field
The Nasty Old Folks
Picture of Facility
Layout
Inner Workings
• The applicant meets all the requirements for the
permit
Retained a residential design
Parking to the rear
Building was staged with broken lines to retain a “home” rather
than an apartment appearance
Landscaping was OK
But the Board Said that it would adversely impact the public
interest
The Court Says Here Are the Rules
• The applicant is required to “prove” that they meet all the
necessary criteria to obtain the permit
• The public on the other hand does not have to prove
anything. They can make any accusation and yet the
Board does not hold them to the same standard
• 'Public notice of the hearing of an application for
exception . . . is not given for the purpose of
polling the neighborhood on the question
involved
The Special Permit
• Some land uses are truly extraordinary - either because
they are very infrequently used, are temporary in nature,
or have characteristics that could be exceptionally
devastating to nearby properties
• We can trace the permit back to the first zoning
ordinances in the 1920s. It is almost always issued by the
BZA
• Most authorities consider it a license to use property in a
certain manner for a certain length of time - rather than
an vested permit. Like any license, it can be revoked for
misuse, reviewed and inspected frequently, and set to
run only for a limited amount of time.
Limitations v Conditions
• Conditions are the hallmark of the “conditional
use permit”
• A conditional use is a permitted use if all
conditions for operation are satisfied
• Limitations are the hallmark of the special use.
Prior conditions are often not known
• Each case is unique and will generate unique
circumstances. Operational limitations serve to
move the special use closer to compatibility with
its surroundings
Background
• As always, there is confusion on the local level
as to the proper use of this permit. Some will use
it as conditional use, others will call it an
exception or special exception. It is also known
as a "special use permit." It is properly used in
the following manner
Permit public facilities and utilities in all districts
A a license to use property for a certain amount of time
such as to convert as single family home to care for
elderly parents during their lifetime
Candidates for Special Permits
Nuclear Power Generation Station
Candidate Two
Candidate 3
Candidate 4
Candidate 4
Perhaps There Should Be A
Special Permit for Taste
Further Observations
• The temporary aspect of this permit heightens its potential
for misuse. Many small communities, desiring to
accommodate new, but controversial uses, will mollify
neighbors by issuing a special permit with the
understanding that it can be revoked if "things don't turn
out as promised."
• In the rarest cases, the special permit is a case-by-case
designer tool. Consider the case of a low level nuclear
waste dump. Not only is it exceptionally controversial, but
also, few planners would have the foresight to
contemplate the criteria necessary to make ordinance
provisions governing its location
An Example
• Some uses have tremendous potential for interfering with
the enjoyment of nearby property.
• A classic example is a rock or gravel quarry. These
facilities, although essential for natural resource extraction,
are loud, frequently run 24 hours a day, use explosives,
and produce excessive amounts of dust. The special
permit limits their duration by authorizing operations for a
set amount of years, and employs conditions to limit their
impacts. Operations are typically reviewed each year to
determine if they must be terminated, or if additional
conditions need to be imposed
Perry v Hawaii County
• Shield-Pacific Limited filed an application for a special use
permit to operate a quarry located in a district zoned for
“agricultural purposes”
• The special use permit must be approved by the County of
Hawaii and the State Law Use Commission
• The subject property is an old quarry site last used in the
1920s
• The application to the Director of Planning of Hawaii
County required that the applicant submit 27 items
ranging from a site plan, a road plan to an EIS
The Hearings
• Hawaii County voted to issue the special use
permit but with stringent “limitations” to use:
Reduce the area of operation from 65 to 25 acres
Operation between 7:00AM and 5:00PM weekdays
Portable machinery and buildings – no construction
A five year time limitation on the special use
• Those that attended the meeting in opposition
strongly objected that the operation would ruin
their rural lifestyle and that earthquakes, floods,
flies, pestilence, and plagues of a biblical nature
your follow
The Quarry
Rural Lifestyles in Hawaii
Future Hearings and Findings
• Hawaii County represents and the opponents appears
before the State Land Use Commission
• The Commission approved the special use permit without
modification
• The adjacent landowners brought suit alleging that the
issuance of the special use permit exceed the authority of
both the County and the State Commission
• Much agony and grief followed as the quarry went into
operation while the matter awaited trial
Leaders of the “Stop the Quarry”
Opposition Group
The Courts
• The trial court found for the County and the Land Use
Commission concluding that the suit lacked merit
• The Appeals Court reversed noting that the County
exceeded its authority and discretion in issuing a special
permit to allow operation of the quarry
Hawaii Supreme Court
• The Hawaii Supreme Court reversed noting that
the Hawaii National Planning Lands Act
designates nearly 80% of the Islands as
Agricultural Lands
• The legislature made it quite clear that the
Counties and the State Land Use Commission
could issue discretionary permits for limited
activities on these lands
Analysis
• The commission found the proposed use was
consonant with the objectives of the Land Use
Law and the county zoning code, it would be a
reasonable use of the land involved, it would not
adversely affect surrounding property, it would
not substantially alter the essential character of
the land or the use to which the land was then
being put, and it would be the highest and best
use of the land involved.
• The operational rules were consistent with the
limited nature of the use that allows it to run in
the form of a license for a period of time
Conclusion
• The court notes that the permit grants a privilege and not
a property interest or right. A privilege may be suspended
or revoked at will for a violation of the limitations of
operation. A privilege is personal, it cannot be transmitted
from owner to owner and cannot established a nonconforming use right
• By comparison, a conditional use permit is a property right
of permanent duration that passes from owner to owner as
long as the established conditions are adhered to
Finally, The Exception
• An exception, under the general rule, is not an instrument. Rather,
it is a statement in the ordinance "excepting" one or more uses of
the land or buildings for the normal ordinance requirements:
Maximum Height: In the M-1 district, no building may exceed a total
height of 48 feet, except that, buildings supplied with a NFPC
approved automatic fire suppression system may be erected to a
total height of 60 feet
More Examples
R-1 Single-Family Residence District - Permitted Uses: singlefamily residential structures; schools; churches; utility
substations; and, listed home occupations - except that, a
funeral home shall be permitted on any lot with a front
width greater than 95 feet with a depth greater than 90
feet, provided that no such funeral home shall locate with
1000 feet of another, existing funeral home
However
• In many zoning ordinances the exception is an
instrument of relief. The BZA is required to review
all exceptions to insure compatibility with their
surrounding prior to the building permit.
Furthermore, some ordinances employ the
exception as a conditional use and simply
substitute one term for another. To confuse
matters, we have encountered a few
ordinances that use the term special exception
and substitute it for a special use or even a use
variance
Examples
• “To provide minor variations from the zoning ordinance to
avoid the lengthy appeals process” – Chicago
• No adult entertainment establishment shall be established
except in the (general commercial) district and except
subject to the following limitations:
• (1) A minimum of one thousand feet (1,000') from any
other adult entertainment business;
• (2) A minimum of one thousand feet (1,000') from any
residential zoning district – Sonoma County
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