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In this month’s E-Letter we will consider conditional use permits, also known as special use permits, and how your township can create clear decisions in which you can place confidence. First, we will quickly discuss what a conditional use permit is. Then we will cover several best practices to “Do” while also highlighting common pitfalls to avoid. Whether your township is facing growth and development with multiple permit requests or your planning commission might see only one permit request a year (if that!) these tips will help position local leaders for success. Read on to learn about notice requirements, establishing a fair process, why your township should issue written decisions, and the various resources available to the community to help make the right decision for your citizens.

WHAT IS A CONDITIONAL USE PERMIT?

These permits go by several names: a “SUP” is a “Special Use Permit;” a “CUP” is a “Conditional Use Permit;” a “SLUP” is a “Special Land Use Permit.” There is no explicit definition or requirement to use a particular term in the local zoning ordinance. Whatever the nomenclature in the township zoning ordinance for these “extra” land uses does not impact their nature or the procedures that should be used.

Typically uses are permitted by right only if specifically listed as principal permitted uses in the various zoning districts or are similar to such listed uses. Accessory uses are permitted as listed in the various zoning districts or if similar to such listed uses, and if such uses are customary and clearly incidental to the permitted principal uses. Special or conditional uses are permitted only as listed and if the required conditions are met.

Conditional uses are uses that are conditionally allowed in a district if approved under a particular article or section of your township’s Zoning Ordinance and which are subject to conditional approval by (typically) the planning commission and township board. The Michigan Zoning Enabling Act (“MZEA”) allows an “official” to grant approval but almost always the review and approval is by a commission or board. This procedure of allowing special exception uses enables a local planning commission, together with the legislative body, to anticipate the uses needed in particularly zoned districts and to regulate them in advance by setting criteria for permitting them. Zoning enabling acts specifically permit a zoning body to include special land uses in a zoning ordinance. See MCL 125.3502.

DO: PLAN FOR AND PROVIDE NOTICE

Notice of Conditional Use Permit applications must be given to the neighborhood and community. MCL 125.3103. All property owners and occupants within 300 feet of the proposed use must be mailed written notice at least 15 days before the Conditional Use Permit is considered. Online maps and the GIS overlay can help measure distances. We recommend measuring the 300 feet from parcel boundary line to parcel boundary line to ensure sufficient notice.

Additionally, if the township also holds a public hearing, then notice must be printed in the local newspaper 15 days before the meeting. This often requires several more days of advance notice. For example, a weekly paper may only publish on a Friday or Saturday. They may require notices to be submitted by the Tuesday before the publication date. If the Township will consider the request on a Tuesday, then notice will need to be given to the newspaper 21 days before the hearing.

Consider a meeting to be held at the end of the month on Tuesday, June 27. Notice would need to be sent to the newspaper on the first Tuesday, June 6 and published that Saturday, June 10. At the second Tuesday (June 13), it will be published for four days (Saturday, Sunday, Monday, Tuesday). At the third Tuesday (June 20), it will be published for 11 days. Then by the fourth Tuesday (June 27) it will have been published for 18 days; the extra publication days account for it running on a Saturday.

In that scenario, notice would be mailed no later than Monday, June 12 which is 15 days before the hearing on June 27.

DO NOT SIMPLY FOLLOW “HOW IT HAS ALWAYS BEEN DONE”

Your Zoning Ordinance must specify: 1) the special land uses and activities eligible for approval; 2) the body or official charged with reviewing special land uses and granting approval; 3) the requirements and standards upon which decisions on requests for special land use approval are based; and, 4) the procedures and supporting materials required for applications, review, and approval. Follow these statutory and ordinance procedures.

Consult your particular Zoning Ordinance to determine your specific conditional use permit process. Does the Planning Commission approve the Conditional Use or only make a recommendation to the Township Board? Perhaps there are special uses. For example, the Planning Commission might typically approve the conditional uses but in the case of projects over 25,000 square feet or for marihuana land uses (if authorized!), it may be a recommendation with the Township Board having the final say.

What items are required to be submitted with a Conditional Use Permit Application? Is everything provided? Is a site plan required? (The answer is often, but not always, yes.) If so, are all the required elements of the site plan shown? Are there specific concerns? Should the permit be subject to renewal? If so, when? Does location or 24-hour security lighting require a detailed lighting plan? Will there be significant deliveries from semi-trucks that require a close examination of traffic flows, parking, and unloading zones?

When applications are submitted, either for a new permit or renewal, ask for additional information or explanations any time it is needed to truly evaluate the issuance of a particular CUP. It’s better to deny an applicant than to revoke a CUP after the fact. Additional information may be requested after discussing the project at a meeting when concerns come to light. Such due diligence will help minimize unnecessary disputes and litigation over misunderstandings or miscommunications. There is no such thing as being too “fussy” about an application when issuing a CUP.

DO: TREAT ALL APPLICANTS EQUALLY

It can be tempting to require less information or be less rigorous when township staff or officials are familiar with an applicant. Often this is not from any overt partiality but rather from simple familiarity and trust. “I know John, so I’m sure everything is here. I don’t need to review this as closely.” Such an attitude can lead to mistakes, unintentional oversights, and accusations of favoritism.

Another example might be not requiring a site plan for additions to an existing use or for projects which seem less intensive. Admittedly, site plan requirements can be specific and time consuming. All the details may not be required for every property or use. In other circumstances, a recent site plan may still be on file. Follow the township procedures and ordinance consistently and if a certain criteria is often waived or not valuable, make amendments and adjustments based on the evidence and experience.

Ensure the Township ordinance and procedures match how the Conditional Use Permit process is administered on the ground. Consider providing for different levels of site plan review with different details. Establish a clear procedure for waiving or modifying conditions and reasonable standards for a waiver. Ensure such modifications are reflected in the file.

DO: UTILIZE A WRITTEN DECISION

Common factors a Zoning Ordinance will require to be met by a project or development for CUP approval are:
• Be designed to protect natural resources, as well as the health, safety, welfare, and social and economic well-being of those residents and landowners immediately adjacent to the proposed land use or activity, and the community as a whole;
• Be related to the valid exercise of the police power in relation to the purposes of the proposed use or activity;
• Be necessary to meet the intent and purpose of the Ordinance for that zoning district;
• Be related to the standards established in the ordinance for the land use or activity under consideration and be necessary to ensure compliance with those standards; and,
• Ensure that public services and facilities affected by the proposed land use or activity will be capable of accommodating increased facility loads caused by the land use or activity.

These and other land use requirements can seem overwhelming. Using a written decision will help guide the board or commission to ensure they consider each aspect and make clear findings. If the township sees a lot of conditional use requests, then it may want to develop a form that can be filled out as part of the official record. If they are less frequent or a particularly sensitive use, then drafting a formal resolution may be appropriate. The Planning Commission may make findings on the record at one meeting, commission a member or staff to draft a resolution, and then consider and adopt the resolution consistent with their decision at a meeting the following month. Whether approving or denying the Conditional Use Permit, a written record will aid all involved.

DO NOT ISSUE A STANDARD CONDITIONAL USE PERMIT; RATHER USE CONDITIONS

Your Planning Commission may recommend conditions on a Conditional Use Permit necessary to protect the Township. Any approval of a Conditional Use Permit must outline the basis for the decision and any conditions imposed. If your Zoning Ordinance identifies the factors that your municipality will use to approve or disapprove a CUP application (the vast majority of Zoning Ordinances do – if they do not you better call us fast!) then consider only the factors your Zoning Ordinance outlines. An example of a recommended condition: screening must be used so the use “will not be hazardous or disturbing to existing or planned neighboring uses.”

Consider general zoning conditions applicable to an entire district or township-wide. Before getting to the specific or special uses of the applicant’s request, do not forget to include the general conditions of your municipality’s Zoning Ordinance in any SUP or CUP that is issued. As a general rule, any regulations established by a Zoning Ordinance within each zoning district should be the minimum regulations for promoting and protecting the public health, safety, and general welfare and must be uniform for each permitted or approved use of land or building, dwelling and structure throughout each district. A municipality’s public health, safety, and general welfare provisions can come in many varieties depending on the zoning district or may span more than a single district. We recommend a frequent review of such provisions to make sure your general conditions are accounted for in each SUP issued. As an added precaution, there is no real downside to providing a catchall provision similar to the one used above.

Many municipalities address general conditions, and their zoning purposes, in their application forms by asking questions of the applicant, i.e., how will you Mr./Ms. Applicant ensure that your development or project will be consistent and compliant with all applicable provisions in our Zoning Ordinance?

Conditions are not limited to the initial application. For example, an original site plan may call for a phased plan of construction and development. Upon renewal of this particular SUP, an issue of what phase the applicant was in and whether they were still compliant with the site plan as approved arose. Here the SUP could be renewed with the condition that there would be an inspection performed within a set timeframe to determine whether the compliance issues were resolved. It was a creative way to not abruptly revoke the permit but at the same time establish a process for compliance in a relatively short period of time. It’s always better to gain compliance than let a dispute fester and turn into a lawsuit!

Working through the general and specific requirements of the Zoning Ordinance will help establish and articulate the factual findings supporting a given decision. Objective and reasonable criteria connected with and supported by the Zoning Ordinance will greatly enhance and protect the final decision. Whether the township is denying a development or approving a polarizing land use, making clear findings will help each side know they were heard by the township and reduce future conflicts surrounding the decision.

DO REMAIN AWARE OF PREVIOUS CONDITIONS, ZONING AND OTHERWISE

Are there land division ordinance conditions that apply to the particular property in question? Did a prior land division require a public road rather than a private road? Has the County Road Commission accepted the road? The applicant must be compliant with not only the zoning ordinance but all other township ordinances. Other governmental units may have conditions. Are their concerns about water? Has the county drain commissioner issued any conditions? Make sure these additional conditions affecting the issuance or renewal of a conditional use permit are addressed early on in the process. A condition is only as good as it is enforced. Diligence will minimize worry and reduce the prospect of costly litigation.

DO NOT GO IT ALONE

Professionals are here to help and the Applicant can help carry the financial load. Your township attorney, engineers, planners, and other subject matter experts can help the township navigate a conditional use permit. An engineer may be required to evaluate structural components or physical property characteristics. An attorney can assist with process, procedure, and drafting documents to implement township policies and decisions. A wetland or wildlife expert may be needed to evaluate impacts from a specific project. Escrow fees can be required from applicants that will cover the cost of engaging appropriate experts.

These ensure that the township has the expertise and insight needed at each level to consider and independently evaluate an application or proposed land use. At the same time, the general public need not carry the burden of ensuring that the private development for private gain does not harm the public interest.

Also, consider requiring a performance guarantee deposit to ensure the applicant will be in compliance with your Zoning Ordinance and any condition imposed via a CUP. This helps to ensure the project is finished consistent with the final plans and not at 90% complete. Similar mechanisms can be used for obligations long in the future such as decommissioning or reclamation.

By: Steven Baker and Matt Kuschel

This publication is intended for educational purposes only. This communication highlights specific areas of law and is not legal advice. The reader should consult an attorney to determine how the information applies to any specific situation.