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Chapters Chapter Three—Special Use Permits
—-Michael J. Meshenberg, The Administration of Flexible Zoning Techniques I doubt that Edward M. Bassett, the principal architect of the original zoning system, anticipated that the special permit, which he labeled the "special exception" in the Standard State Zoning Enabling Act, 1 would be pressed into service as the ultimate "wait-and-see" weapon for communities. As I have discussed elsewhere, 2 the original zoning system was designed to be rigid and self-administering. Under such a system the special exception was a necessary tool to handle the gasoline stations, churches, hospitals and other such uses that could not be grouped into districts of their own, and had the potential for creating negative impacts if allowed to mix in with other uses as of right. But that limited function reflected more the thinking of practitioners in built up urban areas. As one noted commentator has put it, Bassett and the others who devised the zoning scheme were a bunch of New Yorkers, concerned primarily with the encroachments by the garment industry on the upscale residential and shopping character of Fifth Avenue. 3 Their rigid concept of land use control perhaps was appropriate within the urban context that formed their experience, but:
The term "special exception" has now given way in most zoning ordinances to the terms conditional use and special use—all three terms now recognized as interchangeable by most courts. In this chapter, I use the term "special use" or "special use permit" because I think it best captures the purpose of this device. A special use has been defined as a "species of administrative permission which allows a property owner to put his property to a use which the regulations permit under conditions specified in the zoning regulations." 5 In other words, a special use involves an "administrative" proceeding. In view of the potential for misuse of the special permit, described by Michael Meshenberg, to facilitate ad hoc decision making, it is important to emphasize that the courts in most jurisdictions do not support that level of unfettered discretion, with its potential for abuse. Rather, they take the view that, by virtue of a special use being listed in a zoning ordinance, it means that the local government has in effect found that the particular special use is in harmony with the comprehensive zoning ordinance and will not adversely affect the community.This "presumption" is important to the developer, in particular, since the popular view held in some communities is that a special use is a sort of second class citizen when compared to uses permitted by right in a particular zoning district. The presumption means that a local government cannot arbitrarily deny an application for a special use. 6 Although most courts adhere to this general rule, there are some jurisdictions, Illinois being most notable, that do not afford this presumption of validity to a special use listed in the zoning ordinance. As one Illinois court has stated:
A report prepared in 1976 by the American Society of Planning Officials (ASPO) identified the various purposes of special uses, stating that they essentially fell into four classes. The report defined these four classes, with some candid commentary, as follows: 3. To limit or time growth. This is a significant and rarely used departure from traditional purposes. It is used—and some say abused—to accomplish growth control in the absence of specific authorizing legislation. 4. To accomplish unspecified objectives. By keeping conditions vague, the device can be used to seek higher levels of amenity during the negotiation process. 8 As the ASPO report indicates, the control of certain types of uses is the most frequent application of the special use technique. Typically, uses which are subject to a conditional use fall into two broad categories: commercial uses, such as gasoline service stations, perceived by communities to have special impacts upon residential neighborhoods in particular, and institutional uses such as schools, places of worship, hospitals, social clubs, nursing homes and the like, which also, because of their "institutional" character are deemed to have unusual impacts upon surrounding neighborhoods. Both categories of uses while considered desirable by communities, and generally compatible with the basic use classification of a particular zone, are not permitted by right at any location within the particular zoning district because of consideration such as traffic congestion, population density, noise, or other considerations which may pertain to a particular location. The second purpose, establishing "preconditions" for particular uses is less common, if only for the reason that it is more difficult for communities to do. It takes time and careful consideration to define appropriate conditions for a particular use. In fact, if it is possible to attach specific conditions to a particular use, I believe it is preferable not to use the discretionary review procedure of the special use technique, but rather to simply define the use as a "limited use" permitted by right in the district but subject to performance standards that are spelled out in the zoning ordinance. 9 The employment of special use permits as a tool for implementing a growth management strategy raises serious questions when there is no authorization for growth management in the first place. Obviously, the special use, if employed in this fashion, can, in effect, be turned into an anti-growth tool. I will have more to say about this technique later. The fourth purpose identified in the ASPO report is an unabashed acknowledgment that the special use technique, if deliberately kept vague in its standards, can be used to exact amenities and other benefits from the developer. The U.S. Supreme Court's decision in the Dolan case now makes that a perilous course for communities to pursue.
As intended by the drafters of the Standard State Zoning Enabling Act, the special exception or special use procedure was intended to be an "administrative" procedure. The final decision maker in most communities is either the planning commission or the zoning board. However, sometimes the local legislative body, the city council or board of trustees, is the final decision maker. The majority of courts hold that regardless of who the decision maker is, the decision itself is administrative, rather than legislative. 10 The minority view is that when the local legislative body reserves to itself in the zoning ordinance the power to approve special uses, its decisions are legislative. 11 According to this minority view, when the local legislative body reserves to itself the granting of special exceptions or special uses, it does not have to set forth any specific standards for the exercise of its discretion, provided it does not act capriciously. 12 However, if the decision is deemed "legislative" then it enjoys a presumption of validity, that is difficult to overcome. Consequently, the potential for abuse of discretion is considerably greater when the local legislative body makes the final decision on a special use application.
Because the Standard State Zoning Enabling Act provides that the governing body "may" authorize the board of adjustment to grant a special exception, some local legislative bodies retain this function for themselves. If the legislative body has retained for itself the power to grant special exceptions or special use permits, there are cases that hold that the local legislative body need not prescribe express standards or guidelines to control its discretion, because it is presumed to act in a lawful or constitutional manner. 13 However, since the U.S. Supreme Court's decision in Dolan, I think it can be argued that the mere fact that the local legislative body retains the right to decide special exceptions or special uses does not, by definition, make its decisions legislative. The Court's obvious impatience with the imposition of conditions or exactions that do not satisfy its "essential nexus" and "rough proportionality" tests, suggest that particularly where ad hoc conditions are attached to a special use approval, the Court would subject a local legislative body's special use decision to the more rigorous "adjudicative" requirements for the exercise of discretion, namely, specific findings of fact to support the conditions imposed. In other words, regardless of whether the local legislative body articulates specific standards in advance, if its special use permit decision places ad hoc conditions upon the applicant, and is challenged under Dolan, a court could decide to subject that decision to the more rigorous analysis of adjudicative decisions. Back to List of Sample Chapters Footnotes 1. See Advisory Committee on Zoning, U.S.
Department of Commerce, Standard State Enabling Act, §7 (authorizing a Board of
Adjustment to grant "special exceptions to the terms of the ordinance in harmony with
its general purpose and intent and in accordance with general or specific rules therein
contained.") (rev'd ed. 1926). |
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