Transcript The Nature of Zoning Changes - College of Architecture

Relief and Special Instruments
The Basic Mechanics of Changes, Permits, and
Special Approvals
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 quasi-judicial
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 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 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.

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
1.
violate the Church's
civil rights by circulating a
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
condition 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 ‘Slap 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 Milwaukie adopted a zoning
ordinance which designated plaintiff's land and the
surrounding area "A 1 B" (residential apartmentbusiness office). This category allowed 39 units per
acre. On November 11, 1969, a comprehensive plan
for the City of Milwaukie 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.
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 sub-division 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 low-intensity 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, 2002
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?
Special Instruments
The Conditional Use
Permit
The Special Use
Permit
The Exception
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
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 a dense screening at the side
and rear lot lines
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 11:30 PM and 6:00 AM
Review
 The staff at the Minneapolis Planning Department
recommended denying the application for twentyfour-hour 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.
Amoco Replies
 We will fix it!
 Specifically, Amoco agreed 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
The Court Says
 While appellant presented all this evidence to
show that the operation would not adversely
affect
 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
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 he area as a whole
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
Perhaps There Should Be A
Special Permit for Taste
Further Observations
 The temporary aspect of this permit heightens it
potential for misuse. Many small communities,
desiring to accommodate a 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-bycase 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 non-conforming 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: single-family 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