The sometimes-ugly truth about conditional use approvals.
“Permitted, permitted not. Permitted… permitted not!”
Every land use zone has gray areas between permitted and prohibited uses. If you’re picking petals off a flower to make up your mind about the ones that don’t fit nicely into either camp, you need to consider unleashing the power of conditional uses.
The Great Thing About Conditional Uses
Conditional uses are gray areas between land use activities that are 100% okay all the time and activities that are 100% not okay all the time. Municipalities will typically have a list of conditional uses (along with permitted and not-permitted uses) in their governing code for each zone on their zoning map.
Conditional uses are for activities that—in some, but not all, instances—are harmful to the community. Because they have the potential to be detrimental to others in the community, we want to regulate these activities. But since there are instances where these activities are benign (and even beneficial), completely banning them isn’t the right call either.
The solution is to have the municipality approve or disapprove each “conditional” use on a case-by-case basis. If a conditional use is disapproved, it’s prohibited in that instance. If the use is approved, then the land owner can engage in it as long as they follow applicable regulations in the code.
The best thing about conditional uses is that they are flexible. Conditional uses give you the flexibility to provide maximum freedom to your community while regulating what you need to.
A Caution On Conditional Uses
To protect against any abuse of local power, in Utah, the state-mandated rule on this matter is that a municipality must approve a conditional use application unless they can show that, in the applicant’s situation, reasonable regulation cannot mitigate (not eliminate) the expected detrimental effects.
In other words, conditional uses must be approved unless regulating them appropriately is unrealistic. This means that conditional uses aren’t as flexible as most local governments think.
Consequently, each conditional use must be backed-up by regulations in the municipal code that can make the use safe for everyone (at least in most situations). No, these rules can’t be added to on the fly by the Planning Commission either; they need to go through the public process.
The moral of the story is that unless you have a well-constructed code, you might want to just think of conditional uses as permitted uses.
When Conditional Use Is A Good Idea
There’s a simple way to know whether an activity in a zone should be “conditional.” Simply envision your dream city or town, think of the relevant zone, and ask yourself if the community would be better or worse if people did that thing.
If you’re (a) not sure or (b) think, “It depends,” or, “But there would need to be rules,” then conditional is probably the way to go. If that sounds a little too much like witchcraft, dive into our free civiclinQ training all about conditional uses. You’ll be glad you did!
Need Unconditional Love And/Or Advice?
We help municipalities keep their codes clean and their plans polished. If you’re wondering how to better apply and regulate conditional uses in your next ordinance update, we can help!
Call the Rural Community Consultants today to get expert planning, economic, and ordinance advice to make your community the best it can be.
Want To Learn More?
Check out our online training modules! Note: Rural Community Consultants is able to provide access to specific training modules free of charge, courtesy of the Utah Office of the Property Rights Ombudsman.