Special Exception, Conditional Use & Special Use Permits
If you’re concerned about a special exception, conditional use, or other development permit threat anywhere in the USA contact CEDS at 410-654-3021 (call-text) or Rklein@ceds.org for an initial no-cost discussion of strategy options. Please don’t hesitate. Delay almost always decreases the likelihood of success.
Of the various permits and other approvals a development project may require, these three frequently provide the best opportunity for citizens to resolve their concerns. This is because planning commissions, board of appeals and other decision-makers have greater authority to add conditions to resolve impacts. In extreme cases, it’s also easier for a local government to deny a special exception, conditional use or special use permit.
CEDS has developed two approaches which are ideally suited to winning cases involving these three permits: Equitable Solutions and Smart Legal Strategies. Through Equitable Solutions you can identify ways a project can be changed to resolve each of your concerns. It is far easier to win such changes when compared to trying to stop a project. And our Equitable Solutions approach triples the likelihood of victory through conditions. But if a project has been so poorly planned that negative impacts cannot be designed away, then Smart Legal Strategies increases the probability of stopping the project by about ten-fold.
You’ll find detailed advice on special exceptions, conditional uses or special use permits in this webpage, in our free 300-page book How To Win Land Development Issues, and on our Equitable Solutions and Smart Legal Strategies webpages. However, if you don’t have time to wade through this material give us a call at 410-654-3021. We can provide an initial assessment of your case. We can also help you:
- find the best attorney for your case;
- line up expert witnesses;
- identify other permits-approvals which may provide better opportunities to resolve your concerns;
- determine if Equitable Solutions are available;
- negotiate on your behalf with the applicant, regulatory staff, and elected officials; and
- help you raise the funds needed to cover all of these expenses.
What Is A Special Exception, Conditional Use or Special Use Permit
In those counties, cities and towns with zoning, local law will establish one- to three-dozen zoning districts. Each zoning district is intended to group compatible uses so, for example, industrial activities or landfills are not developed too close to homes and schools.
Within each zone a number of uses will be allowed by-right while others require a permit which may be called a special exception, a conditional use, or a special use permit. When contrasted with uses allowed by-right, it is generally easier to resolve negative impacts when one of these three permits is required.
Examples of Special Exception, Conditional & Special Uses
The three permits – special exception, conditional use and special use – are similar and some would argue indistinguishable. Again, all three are reserved for uses which are usually, but not always, compatible with other uses allowed by-right within a zoning district. In the case of residential districts, schools and churches are examples of potentially incompatible uses.
Schools and churches are commonly allowed in a residential district, but only after a special exception, conditional use, or special use permit has been issued. While schools and churches are generally compatible with homes, this is not always the case, particularly when a megachurch or megaschool is proposed within an existing neighborhood. These oversized schools and churches can generate traffic, noise, light-pollution, and other impacts more akin to a shopping center; hence the need for a special or conditional use permit.
The Hearing Process – What To Expect
Local zoning law usually requires a hearing before a decision-making body prior to the issuance of a special exception, conditional use, or special use permit. The decision-making body may be a Board of Appeals, Board of Zoning Review, Board of Adjustments, etc.
The purpose of the hearing is to determine if the proposed use can meet criteria set forth in the zoning ordinance. Typical criteria include:
- Will not cause excessive traffic impacts;
- Will not cause nuisances (noise, dust, odor, etc.);
- Will not overburden water and sewer services;
- Will not interfere with development of adjoining properties; or
- Will not devalue nearby properties.
In addition to the criteria there may be legal precedents or other factors which govern decision-making but do not appear in the zoning ordinance. For example, in our home state of Maryland a special exception can only be denied if facts are presented showing that the impact of the use on the proposed site is significantly greater then if this same use were made on similarly zoned properties within the county, city, or town. This is known as the extraordinary impact or Schultz v. Pritts test.
Usually the hearing will begin with staff presenting their findings with regard to criteria compliance along with any recommended conditions to resolve negative impacts. The applicant will may then put on expert witnesses to prove that the criteria have been met. If staff have recommended approval with conditions then the relevant expert may speak to how they intend to meet the condition or explain why a condition should not be imposed. Opponents then get their turn.
In some jurisdictions citizens are allowed to cross-examine anyone who testifies: staff, the applicant and the applicant’s experts. In others, only an attorney representing citizens has this right. Of course the applicant’s attorney almost always gets to question witnesses.
If a hearing is short and the issues simple, then the decision-making body will usually vote at the end and announce their decision. In complex cases the decision-makers may deliberate for a few minutes to a few weeks. The decision is usually documented in the form of minutes or a formal order including findings of fact and law.
Most bodies can make one of three decisions on the permit application: approve, approve with conditions, or deny. If approved the applicant will then be required to submit plans showing that the project will be built in compliance with the permit and any attached conditions.
In some localities an applicant is barred from reapplying for a period of months or years if the permit is denied. In others a new application can be filed the day after denial, which is a tactic sometimes used to drain the opposition of money and perseverance.
Conditioning Permits To Resolve Impacts
There is a common myth that the way you resolve development impacts is to kill the project. In reality, only one in fifteen efforts to stop a project succeeds. Fortunately, the negative impacts associated with most projects can be resolved through conditions. In fact, most decision-making bodies are very much inclined to address citizen concerns by adding conditions to an approval of a special exception, conditional use, or special use permit. But the key question is always: Will the condition fully resolve an impact for decades to come? If the answer is no or uncertain then perhaps the strategy should be to: Kill The Project.
Following are several examples of conditions:
- A megachurch needs a second access for emergency vehicles and the applicants propose using your residential street. Citizens win a condition requiring a gated access, which only police and fire personnel can open, thus preventing substantial cut-through traffic;
- A shopping center will be built in a watershed where existing development has stressed a highly-valued waterway so a condition is imposed requiring the applicant to use highly-effective stormwater measures not only at the center but to retrofit some existing impervious area with these measures, thereby bringing about a net improvement; or
- A housing project will overcrowd an existing school so a condition is added requiring the applicant to cover the cost of an expansion. The applicant can only begin building once the expansion is completed.
You will find both staff and the decision-making body far more open to conditions as opposed to killing a project. However, if you’ve exhaustively searched for viable conditions, failed, and can demonstrate this to staff and decision-makers then its more likely they will support permit denial.
How do you identify viable conditions?
This is addressed in Chapter 2 of our book, How To Win Land Development Issues, which is available to citizens at no cost. You can also contact CEDS at 410-654-3021 or Rklein@ceds.org for suggestions.
A word of caution is in order however. Identifying possible conditions is usually the easy part. Determining effectiveness and reliability over a period of years or decades can be far more difficult. Please DO NOT simply accept the assurance of the applicant, their consultants, or even government officials. Instead, do the research suggested in Chapter 2 and get our opinion by contacting CEDS at 410-654-3021 or Rklein@ceds.org.
Winning Special Exception, Conditional Use & Special Use Hearings
Citizens mostly win or lose hearings before the opening gavel sounds. In other words, if prior to the hearing you’ve succeeded in winning staff over to your position and you’ve mobilized substantial public support (as described in Chapter 36 of How To Win Land Development Issues), then chances are decision-makers will vote your way, provided of course that the facts and law are on your side. Following are the specific steps involved in winning a hearing before it begins.
- Review the application and supporting documents to determine if, in fact, the project will adversely affect you and your neighbors. Take along a copy of the CEDS Quality of Life Impact Checklist for guidance on potential negative effects;
- Discuss your concerns with staff. Ask if they agree your concerns are valid and, if so, what conditions they would support to resolve each impact. If staff disagree or can’t think of conditions then see Chapter 1 or contact CEDS at 410-654-3021 or Rklein@ceds.org;
- Determine if a hearing date has been set and what you must do to present your concerns at the hearing;
- Review the zoning ordinance to verify that your concerns are among the criteria that must be considered by the decision-making body;
- Determine if legal precedents or other factors not in the ordinance govern decision-making, such as the Schultz v. Pritts test mentioned above under Hearing Process;
- If you’ve identified conditions which may resolve your concerns then verify effectiveness using the advice presented in Chapter 2 or contact CEDS at 410-654-3021 or Rklein@ceds.org
- Review past decisions to determine if the body has ever added a condition, like the one you’re proposing, in a similar case (or has denied approval if that’s what you’re seeking);
- If you find relevant past decisions then use these as a model for framing your arguments to show the same action is warranted in your case;
- Carefully feel out staff for their willingness to support your position. If you get positive signals then press for a recommendation consistent with your goals;
- Determine if the option exists to file a protest petition requiring a sup majority to approve the application,
- Consider the value of hiring an attorney to represent you at the hearing. Interview at least three attorneys as recommended in Chapter 40 of our free book. For further detail visit our Smart Legal Strategies webpage;
- Sometimes staff can serve as your expert witness, but they occasionally fail to deliver, so consider hiring an expert. For advice see Chapter 40 or contact CEDS at 410-654-3021 or Rklein@ceds.org; and
- Pack the hearing to standing-room-only with others supportive of your position, particularly those who own property next to the site or are otherwise directly affected.
The preceding is but a brief outline of what it takes to win a special exception, conditional use or special permit hearing. There is much, much more that needs to be done to maximize the probability of success. To get a feel for this additional work take a look at the following examples of the many Initial Strategy Analyses CEDS has completed for clients who fought (and won) these permit battles:
Finally, do not fall into the common mistake of either hiring a lawyer too soon or skimping on the hearing to save your funds for an appeal. To avoid these and other common pitfalls see Chapter 35 or contact CEDS at 410-654-3021 or Rklein@ceds.org.