This blog focuses on a new way of looking at conditional use permits (CUP), an approach that may also help make the development process easier for all parties.

Zoning and Conditional Uses

Zoning is a powerful tool for cities, towns, and counties to use to reasonably manage and regulate land uses within their boundaries.

Zoning codes have several key components, one of which is the Land Use Chart(s). This is important because it specifically identifies how land may be used in specified locations — or zones — designated on a jurisdiction’s official zoning map. For each zone on the zoning map, a long list of land uses are identified as being either:

1. Permitted outright;
2. Conditionally allowed; or
3. Prohibited.

A “permitted” designation/category means the listed land use is allowed outright in a given zone and that an applicant may apply for a permit for approval to use their property in the allowed manner, subject to the requirements contained in the community’s zoning code and other development regulations. On the other end of the spectrum, a “prohibited” designation typically indicates that a parcel of land cannot be developed in the listed manner (for example, a heavy industrial/manufacturing plant will almost always be prohibited in residential zones).

The “conditional use” designation is most often used for certain land uses that might not normally fit into a zoning category but could be suitable if the proposed land use meets certain conditions to mitigate any foreseeable negative impacts. One fairly common example is a proposal to locate a new elementary school in a single-family zone. On the one hand, it might be desirable to locate the educational facility in a residential area so that local students and their parents have convenient access to it. On the other hand, the new school may generate some impacts, like a high level of traffic that would negatively affect the surrounding neighborhood.

In such cases, the conditional use process combines a case-by-case review of the proposed land use with an open process to gather public input (which usually includes the holding of a public hearing) before a decision is made. In Washington State, this type of decision is often made by a hearing examiner (a person appointed by a local government to function as a “land use judge” and make objective decisions). In the hypothetical example of the elementary school, this project would be granted a conditional use permit (CUP) only if the CUP criteria were met and necessary conditions were imposed to mitigate any identified negative impacts.

Issue Related to the Traditional CUP Approach

The process described above may sound simple and easy, but that is often not the case. Most CUP processes consume a relatively large amount of time and energy, both by the applicant and local government staff.

During the past few decades, the CUP process has been altered by some jurisdictions to become more permissive regarding what could be allowed under what some might call an “almost anything is appropriate under the right conditions” viewpoint. That perspective has come under increasing scrutiny, however, over the past few years. The reasons for this reexamination are threefold:

1. There are some land uses/types of development that are better located in certain zones than in others. For example, pedestrian-oriented retail establishments should be a permitted (and not conditional) use in a downtown zone while a “heavy manufacturing” use should not be listed as either a permitted or conditional use in a neighborhood business zone.
2. Conditional uses usually require public notice and a public hearing, often before a hearing examiner. This formal process may create a lot of unnecessary concern over a proposed land use/development project in instances when it may actually have an extremely low likelihood of being approved, even with conditions.
3. The CUP process is discretionary and creates an environment of uncertainty for the development community. This group may not want to invest a lot of time and money to apply for a proposed land use that may or may not be approved. If that land use is something your community is trying to encourage, creating an elaborate process with an uncertain outcome is not the best way to achieve that desired development type.

A New Approach to CUPs

To address some of the issues that can arise from the traditional CUP process, more communities are reconsidering how they deal with conditional uses. This reexamination can be done by considering one or more of the following actions: reducing the number of CUPs, creating CUP categories, and updating the CUP criteria to be more objective. Let’s look at each in detail.

Reduce the number of conditional uses

For the reasons described above, it is recommended that you review your use charts (and the rest of your zoning code) to ensure that desired land uses are clearly indicated as being “permitted,” and that “conditional uses” are limited to those that truly need a detailed, case-by-case review and approval process. In the ideal world, a CUP application would be a rare exception rather than a common occurrence.

A case in point is the City of Auburn, which consciously reassessed the need for conditional uses in 2009 and moved to allow a greater number of uses outright and through administrative approval. Kirkland is another city that has a small number of conditional uses in its zoning code and hasn’t had anyone apply for a CUP in over five years. Taking it a step further, Federal Way’s zoning code contains no conditional uses in its land use charts.

For certain land uses that might need to have some specific standards applied to them — for example, bed and breakfast establishments — make them a permitted use in the zones where you want to encourage them and then include a separate set of standards addressing bed and breakfasts in your zoning code.

Create major and minor CUP categories

When there some potential land uses that are likely to have small impacts but still need to have some specific conditions applied to them, creating a “minor” CUP category is worth considering. This approach usually includes providing public notice about a proposed project, skipping the hearing, and, instead, requiring administrative review and approval by staff.

One example of this approach is the City of Kent, which changed its land use tables to reduce the number of land uses requiring a CUP and then created a new permit called a “Minor” CUP to allow for easier administrative review. A Minor CUP can be obtained without a hearing with the decision issued by the city’s planning manager. This type of permit is focused on lower-impact uses that the city wanted the ability to allow in a broader list of districts while considering impacts and applying conditions as needed. They have retained the public notice aspect by requiring a Notice of Application for Minor CUPs.

Make the CUP approval criteria as objective and quantifiable as possible

The standards contained in your zoning code about whether or not to issue a CUP should be understandable, clear, and objective. Criteria like that used by Milton (“Consistent with the level of service standards for public facilities and services in accordance with concurrency management requirements”) and Auburn (“The proposal’s impacts can be appropriately mitigated through the application of conditions of approval, as applicable”) are relatively clear and thus more likely to be objectively applied to all CUP requests.

Conversely, CUP standards that are more vague or general as to the impact of a proposed conditional use, such as ‘it shall not be detrimental to the public health, safety, and general welfare’ or ‘it shall not adversely affect the established character and planned character of the surrounding vicinity,’ may sound good at first reading but run the risk of being subjectively applied in different ways for the same type of development being proposed. A lack of clarity and the potential for subjective treatment are not things you want in your zoning code, especially in relation to types of development that your community is seeking to attract. It is important that an applicant, the decision maker, and the public all know the CUP approval criteria will be applied in a fair, consistent, and equitable manner.

Conclusion

Zoning is a powerful tool to help implement your comprehensive plan, but it needs to be used in a thoughtful manner. One important (but not the only) step you should take is to evaluate how well your zoning code implements the goals and policies contained your comprehensive plan.

For the reasons described in this blog, local governments should review their conditional use standards and procedures to ensure that these are working to help achieve (and not thwart) your community’s vision for the future. Finetuning your zoning code’s approach to conditional uses is one step to help improve the prospect of achieving the type of new development envisioned in your comprehensive plan.