Relief and Special Instruments

1
Relief and Special Instruments

• The Basic Mechanics of Changes, Permits, and
  Special Approvals

2
Pepsi, Popcorn and Other Antics At A Public
Hearing
3
Pendley v Lake Harbin Assoc

• The complaint by citizens of the Lake Harbin
  Civic Association alleges that three rezonings by
  the County Commission were null and void.
• The Commissioners of Clayton Co., Georgia
  scheduled 36 hearings to begin at 730 PM
• 1,200 1,500 hundred people came and the
  commission room holds about 50 persons
• The hearings did not end until about 330 AM

4
Imaging This!

• People were packed so tightly in the hearing room
  and in the hall that they could not move
• One person showed up at 730 and the room was
  already so tightly packed that it took him ½ hour
  to find a place to stand
• There were no microphones so nothing could be
  heard
• About 100 people were crammed into the hearing
  room that would accommodate 50 people

5
The Hearing
6
Reaction to the Hearing
7
Trial Court

• The court finds that conducting the county
  business of zoning after midnight and into the
  early morning hours, and on a day other than as
  previously advertised, and in one of the small
  public meeting rooms in the courthouse where only
  a small number of the approximately 1,200 to
  1,500 people present had access, was unreasonable
  to the extent that the general public was
  deprived of an effective, meaningful public
  hearing

8
Fairness, Procedures, And Other Nastiness
Conflict of Interest?
The heart of the principle of due process is
fairness. When does a rezoning action become so
unfair that it becomes necessary for the court to
invalidate the process to protect the individual?
9
McVoy v Township of Montclair

• St. Luke's Episcopal Church applies for a
  variance to permit the Church to use its rectory
  as a boarding house for seven to nine senior
  citizens, contrary to the uses permitted in the
  R-1 One-Family Residence Zone where it is located
• The variance also permits the Church to provide
  only five off-street parking spaces instead of
  the eight required by ordinance for the proposed
  use.
• The Board of Adjustment approves the variance

10
The Controversy

• Some objectors expressed resentment because the
  Church had failed to advise and consult with its
  neighbors until it was required by law to give
  notice them in order to obtain the variance.
• New Jersey law states that No member of the
  board of adjustment shall be permitted to act on
  any matter in which he has, either directly or
  indirectly, any personal or financial interest.
• Two members of the BZA were also members of the
  Church Board.

11
The Trial Court

• The two BZA members stated that they felt
  pressured into giving their consent because a
  large number of residents, eager to be heard, had
  assembled for the hearing and if the two Board
  members did not participate, the hearing would
  have had to be postponed to obtain a quorum.
• The trial court rules that the decision was valid
  since the two members of the BZA disclosed their
  church membership before the hearing began

12
Appeals Court

• The Board Members claim that their membership in
  the church did not influence them in any way.
  But, the Court Said that It is the existence of
  such interests which is decisive, not whether
  they were actually influential
• Concern for the impartial exercise of
  quasi-judicial authority, in appearance as well
  in fact, requires that where a member of a board
  of adjustment must disqualify himself in a matter
  because of a conflict of interests, the
  disqualification is absolute and cannot be waived

13
Manookian v Blaine County

• The issue in this case is whether an Idaho law
  prohibits a member of a planning board or zoning
  commission or a member of the county board of
  commissioners from taking part in the zoning
  process if they are owners of or have an interest
  in property that is the subject of the rezoning

14
The Law in Question

• A member or employee of a governing board,
  commission, or joint commission shall not
  participate in any proceeding or action when the
  member or employee or his employer, business
  partner, business(,) associate, or any person
  related to him by affinity or consanguinity
  within the second degree has an economic interest
  in the procedure or action. Any actual or
  potential interest in any proceeding shall be
  disclosed at or before any meeting at which the
  action is being heard or considered..

15
The Players

• The alleged conflict of interest in question
  centered around the participation in the zoning
  process of two men, Robert Gardner and Nick
  Purdy. Robert Gardner was a member of the Blaine
  County Planning Zoning Commission and
  subsequently, in January, 1983, became a member
  of the Blaine County Board of County
  Commissioners. Nick Purdy was at all times
  relevant herein a member and chairman of the
  Blaine County Planning Zoning Commission.

16
Nick Purdy Robert Gardner
17
And, of Course, Idaho Power
18
The Background

• Idaho Power needs a conditional use permit to
  construct their line
• This line would run through land owned by the
  Purdys and Gardners. The Power Company had
  already purchased all the necessary easements
  except one from Gardner
• From the beginning, the Purdys and the Gardners
  had objected to using their property for a power
  line route

19
The Different Route

• Public hearings are held before the planning
  commission. A conditional use permit is issued
  but for a different route that avoids the Purdys
  and Gardners property
• Gardner votes and Purdy did not. Yet, Purdy
  participated fully in the discussion
• The new route is significantly more expensive for
  Idaho Power and is, in part, environmentally
  destructive

20
The County Commission

• The County Commission approves part of the route
  but approved a new route that avoids
  environmentally sensitive areas
• The new route runs through the land of Manookian
• By the time the decision really heated up Robert
  Gardner has been elected to the County Commission
  and no longer serves on the Planning Board

21
The Final Hearing

• At the final hearing Gardner admits that he has a
  conflict of interest, did not vote, but fully
  participated in the hearing
• Manookian files suit and the district court
  invalidates all the actions because Purdy and
  Gardner have conflicts of interest

22
Appeals Court

• If you are barred from participating does this
  mean that you just cannot vote?
• No, the Court says, it means that you cannot
  participate in any way
• In adopting this law the legislature acted to
  assure that, consistent with our democratic
  principles, only impartial and objective persons
  make decisions affecting other persons' liberty
  and property.

23
To Which Purdy/Gardner Respond

• Well, the economic impact on this property was so
  slight that we didnt think that it was necessary
  to declare a conflict of interest
• Bull, says the court, the line created a
  physical and visual impact that could preclude
  the land from being developed for many things
  such as residences

24
The Result

• They had a conflict of interest pure and simple
• All the proceedings, hearings, and decisions are
  void
• Start over again and pay the fine

25
Christian Gospel Church v City of San Francisco

• This case is about an alleged conspiracy that
  prevented the Christian Gospel church from
  receiving a conditional use permit
• It begin when the Christian Gospel congregation
  applied to use a single family home in a
  residential neighborhood as a church, place for
  bible study, and meeting room. This would include
  about 50 people on Sundays, Sunday evening, and
  Weds. evenings

26
The Opposition

• A neighborhood organization, the Greater West
  Portal Neighborhood Association opposed the
  granting of a conditional use permit to the
  Church and circulated a petition in the
  neighborhood Vicente calling for a denial of the
  permit. The petition was signed by 190 residents.
• The Association was well organized and vigorously
  opposed the permit

27
Reasons Why The Association Opposed

• Too many churches already
• There are vacancies in nearby commercial areas
  that are more suited
• This will not maintain the neighborhood
  characteristics
• There is a housing shortage already
• The church would create additional traffic
  hazards dangerous to families
• The noise created would disturb the quiet of the
  neighborhood setting

28
The Hearing

• http//go.to/gospeltent
• The Planning Commission denies the permit and the
  Congregation is really upset
• The Congregation sues and says that the
  Association
• The Church claims that the Association conspired
  to violate the Church's civil rights by
  circulating a petition, testifying before the
  Planning Commission and writing letters to the
  editor.
• The Congregation says that the Association is not
  entitled to 1st Amendment rights because they
  defamed them

29
Decision

• The court examines the 3 prong test of thee Free
  Exercise Doctrine and finds that the City did not
  interfere with a tenant of faith
• Also, the court examined the pattern of condition
  use permits issued to churches that requested to
  use homes and found that most were denied this
  blew the equal protection claim of the Christian
  Gospel Church

30
The Courts Analysis

• Contrary to the arguments of the Church,
  neighborhood opposition to the granting of a
  conditional use permit is not unlawful and should
  be considered by the Planning Commission.
• The Church claims that circulating a petition
  against them violated the right but the court
  hold that the action of the neighbors "falls
  within the first amendment's protection of the
  right to petition the government for redress of
  grievances."

31
Conclusion

• The court concludes by saying that the citizens
  were doing what they were supposed to do in a
  democracy taking part in their governmental
  decision making duties and not drumming up a
  Slap Suit.
• They did not conspire to deprive the Church of
  its constitutional rights they simply exercised
  their 1st Amendment rights to freely enter into
  the business of local government

32
You Might Say the Church Came to a Dead End
33
Parishioners Speaking in Tongues After Decision
34
The Plan
The Plan, The Plan Who Has a Plan What is the
Plan Is it Written Down Where Is
It How Big What Does it Mean
35
Do You Have To Have a Plan

• From the very beginning in the 1920s our enabling
  legislation has always demanded that a
  comprehensive plan must be adopted prior to the
  adoption of regulations
• However, very little is said about whether or not
  you have to follow the plan in applying the
  regulations

36
Meaning of the Plan

• Charles Haar says that the plan is like an
  impermanent constitution
• Its meaning is ironclad but it may be freely
  amended

37
Baker v Milwaukie Oregon

• In1968, the City of Milwaukie adopted a zoning
  ordinance which designated plaintiff's land and
  the surrounding area "A 1 B" (residential
  apartment-business office). This category allowed
  39 units per acre. On November 11, 1969, a
  comprehensive plan for the City of Milwaukie was
  adopted by the Planning Commission. This
  comprehensive plan designated plaintiff's land
  and the surrounding area as high density
  residential, allowing 17 units per acre. On
  January 12, 1970, the Milwaukie City Council
  passed a resolution adopting the above plan as
  the comprehensive plan for the City of Milwaukie.

38
The Actions

• On February 27, 1973, against staff
  recommendation, the Milwaukee City Planning
  Commission granted a variance authorizing a
  proposed 95-unit apartment complex near Bakers
  property with one and one-half parking spaces per
  unit rather than the required two.
• Baker says wait a minute, should not the
  variance conform to the Comprehensive Plan that
  calls for 39 units per acre?
• The City says that that there is no obligation to
  conform the zoning ordinance to the comprehensive
  plan

39
The Hearing Makes The Rounds

• The trial court rules for the city saying that
  the plan is just that a plan and not the
  controlling instrument for land use
• Appeals court also finds for the City
• The Oregon Supreme Ct. says that the position of
  defendants evidences a fundamental
  misunderstanding of the relationship between
  planning and zoning.
• Following from Fasano it has been determined that
  the basic instrument for controlling land use is
  the comprehensive plan

40
What About Zoning?

• Zoning is not planning! It is the means for
  bringing the plan to effectuation
• The comprehensive plan is not merely a guideline
  which may be followed or disregarded at will
  although the zoning ordinances establish the
  detail they must do so within the policies
  established by the comprehensive plan.
• Where did you guys go to planning school!
• The Plan is like a Constitution. You can change
  it but you damn well follow it until it is amended

41
What to Do?

• The City of Milwaukie, upon adopting a
  comprehensive plan, had a duty to implement that
  plan through the enactment of zoning ordinances
  in accordance therewith
• In summary, we conclude that a comprehensive plan
  is the controlling land use planning instrument
  for a city. Upon passage of a comprehensive plan
  a city assumes a responsibility to effectuate
  that plan and conform prior conflicting zoning
  ordinances to it. We further hold that the zoning
  decisions of a city must be in accord with that
  plan and a zoning ordinance which allows a more
  intensive use than that prescribed in the plan
  must fail.

42
The City After Learning That the Plan is Important
If you cant learn to do something well learn to
enjoy doing it poorly
43
Intermission
44
Larimer County v Condor

• Conder and Sommervold propose to develop a
  560.76 acre parcel in the southern part of
  Larimer County into the "Windemere Acres
  Subdivision" (Subdivision). The proponents seek
  to divide the property into fifty-six lots,
  generally ranging in size from 2.3 to 5.4 acres,
  with nine perimeter lots larger than thirty-five
  acres.
• The comprehensive plan designates single family
  dwellings with minimum lot area of 100,000 square
  feet in the FD Farming District (about 2 ½
  acres)

45
Larimer County, Colorado
Estes Park Fort Collins Loveland Rocky Mountain
National Park Front Range Theodore Roosevelt
National Forest
46
View From Windemere
47
The Proposal

• The applicants point out that their desire is to
  keep this area rural and attempted this by
  surrounding the sub-division by 35 acre parcels.
  These parcels will have recorded covenants which
  prohibit more than one residence, and are also
  controlled by the subdivision's architectural
  control committee in regard to fencing, home
  size, and construction of any out buildings.

48
Visual of Proposal
35 acre lots
Smaller lots
49
Planning Commission Review

• Planning Commission recommends that the Larimer
  County Board of County Commissioners (Board) deny
  the application. The Planning Commission adopted
  the Planning Department's findings that "the
  proposed Preliminary Plat is not consistent with
  the Larimer County Land Use Plan in location of
  the proposed use, intensity of use, design,
  consolidation of services, and maintenance of
  rural character."

50
Applicant Re-Submits

• The applicant now includes the 35 acre tracts in
  the subdivision and says that the lots are an
  average of 10 acres in size
• The Planning Commission again rejects saying that
  the project is located in a rural agricultural
  area of Larimer County. The proposed subdivision
  appears suburban rather than rural in character.
  The Larimer County Land Use Plan guidelines for
  rural development emphasize low-intensity design
  that consolidates services and maintains large
  blocks of open space

51
Countys Contention
This is what rural development looks like
52
The Developers Visualization
53
What The Planners Visualized
54
Windemere Site Summer, 2002 South of Fort Collins
Colorado
55
Trial Court

• The court held that "reliance on or reference to
  the comprehensive land use plan" was an
  appropriate basis for the Board's decision
• The court rejects the proponents' constitutional
  due process claims and held that the developers
  had adequate notice of the need to comply with
  the master plan provisions and that the plan
  contained sufficiently specific guidelines
  "within the ordinary understanding of reasonable
  people."

56
The Appeals

• The Appeal court reverses noting that they
  believe that the master plan is advisory in
  nature
• The Colorado Supreme court holds for the County.
  They note that the countys master plan included
  language that made it compulsory that all
  subdivision approvals must be in accord with the
  plan

57
The Countys View

• Although the Farming District allows single
  family homes on 100,000 sq. ft this proposal is a
  suburban type development and is not intended to
  further the goals of farming or ranching
• The conclusion is that the plan rules

58
Class Questions

• What type of development could have been proposed
  that might be accepted by the planning
  commission?
• Is the Farming District Zone poorly drawn?

59
Special Instruments
The Conditional Use Permit The Special Use
Permit The Exception
60
The Conditional Use

• The original framers of zoning realized that land
  use was a complex social issue and that there
  would be a number of general changes that are
  necessary in planning and regulation at the local
  level
• To put it simply there is such a richness and
  diversity in local land use that it is impossible
  to produce a blueprint zoning a zoning ordinance
  that covers all the necessary considerations for
  effective community regulation.

61
Why Conditional

• For instance, most local planners agree that
  providing services on the neighborhood level
  (fine grained planning) is a good idea
• Many of us would like to see low level service,
  such as day care, medical centers, commercial
  convenience, and personal services integrated
  within our neighborhood patterns
• This is not to say that day care centers (perhaps
  for 12 children or more) or the local 7-11 Store
  should have the freedom to locate anywhere and
  under any conditions in our residence districts

62
Orphan Uses

• Another example are the "orphan uses." These are
  the land uses which everyone needs but no one
  wants
• We can find examples of orphan uses in every
  community - funeral homes asphalt batch mixing
  plants, recycling centers motor-cross motorcycle
  racing
• Most agree that funeral homes are necessary. But
  planners, if they are to satisfy public demands,
  would be forced to relegate funeral homes to
  heavy industrial districts so as to keep them out
  of sight and mind. This is, of course,
  inappropriate regulation and land use planning.

63
How It Works

• A good work-around solution for neighborhood
  integration, orphan uses, and similar land uses
  is to construct a land regulatory control
  instrument that grants permitted use status to
  these enterprises if they meet certain, and often
  strict, conditions. For instance, a day care
  facility might be listed as a conditionally
  permitted use in a single family neighborhood
  district if
• Facility employees a residential design
• Continued on next page

64
Further Conditions

• Services no more than 15 persons with no more
  than 3 employees.
• Provides a safe and efficient means of client
  drop-off (cannot be on a collector street).
• Obtains and retains state licensing.
• Operates for no more than 12 hours per day.
• Maintains a dense screening at the side and rear
  lot lines

65
The Big Problem

• Because zoning is local language, the conditional
  use is often hybridized to fit local needs and
  perception
• In some jurisdictions, such as Kansas, the
  conditional use permit is optionally reviewed by
  the Planning Commission - not the BZA.
  Frequently, conditions to obtain this use are not
  listed in the zoning ordinance and the BZA is
  required to investigate and state the conditions.
  In some rural ordinances, nearly any use not
  listed as permitted can be considered for a
  permit, making the conditional use equivalent to
  a change in zone - or spot zone.

66
Even Some Signs Are Conditional Uses
67
Cyclone Sand Gravel v Ames, Iowa

• In 1980, the landowners purchased two adjoining
  tracts of land totaling approximately 80 acres
• The property lies in the flood plain of the
  Skunk River and is designated as an
  Agricultural/Greenbelt area under the city's land
  use policy plan.
• The tract lies adjacent to other farmland and an
  auto salvage yard and within several hundred feet
  of Duff Avenue, a street that is fronted by
  several businesses and a shopping mall. Although
  the land is now being used for row crops, it was
  specifically purchased for the purpose of
  operating an extraction pit and developing the
  land commercially.

68
Cyclone Sand And Gravel
69
Ames BZA Action

• The BZA denies the conditional use permit. The
  Zoning Ordinances specifies a number of criteria
  that must be examined before the permit is
  affirmed or denied
• Cyclone contends that conditional use permits are
  vague, overbroad and confiscatory because they
  give the Zoning Board unbridled discretion and
  thus permit arbitrary and unreasonable decisions
  in violation of equal protection and due process.
  

70
The Criteria

• a) Be harmonious with and in accordance with the
  general principles and proposals of the Land Use
  Policy Plan of the City of Ames. (b) Be
  designed, constructed, operated and maintained so
  as to be harmonious and appropriate in appearance
  with the existing or intended character of the
  general vicinity and that such a use will not
  change the essential character of the area in
  which it is proposed.

71
Is This Harmonious?
72
Criteria

• (c) Not be hazardous or disturbing to existing
  or future uses in the same general vicinity and
  will be a substantial improvement to property in
  the immediate vicinity and to the community as a
  whole. (d) Be served adequately by essential
  public facilities and services as highways,
  streets, police, fire protection, drainage
  structures, refuse disposal, water and sewage
  facilities, or schools.

73
Criteria

• (e) Not create excessive additional requirements
  at public cost for public facilities and
  services. (f) Not involve uses, activities,
  processes, materials, and equipment or conditions
  of operation that will be detrimental to any
  person, property or general welfare by reason of
  excessive production of traffic, noise, smoke,
  fumes, glare, or odors. (g) Be consistent with
  the intent and purpose of the zoning district in
  which it is proposed to locate such use  

74
Appeals Court

• Viewing the ordinance as a whole, we do not find
  it unconstitutionally vague. Cyclone does not
  claim the ordinance constitutes an unlawful
  delegation of legislative authority to the Board
  but rather contends that it grants unbridled
  discretion in the decision making process.

75
Decision

• While the ordinance does rely on general
  standards, these guidelines are designed to allow
  the Board to make findings and determinations
  that are appropriate to the peculiar
  circumstances presented by each special use
  application
• The ordinance requires a proposed use to conform
  to the general land use policy of the city,
  generally fit in with existing property uses in
  the vicinity and not be detrimental to other
  property owners or the general public. So
  limited, the ordinance is sufficiently specific
  since zoning standards need not be so detailed as
  to eliminate entirely any element of discretion
  from the Board's decision

76
Amoco Oil v Minneapolis
Amoco Oil applies for a conditional use to
operate a 24 hour convenience store and gasoline
sales
The Zoning Ordinance permits this use but the
conditional use permit was to operate between the
hours of 1130 PM and 600 AM
77
Review

• The staff at the Minneapolis Planning Department
  recommended denying the application for
  twenty-four-hour service for two reasons.
• First, the city's comprehensive zoning plan had
  designated the area as a "neighborhood retail"
  area. Consequently, the twenty-four-hour
  operation would be contrary to the intent of the
  comprehensive plan.
• Second, because of the noise, lights, traffic and
  activity that would exist all night, the staff
  felt the twenty-four-hour operation would be
  injurious to the single family residences that
  are located immediately to the west of the
  facility.

78
Amoco Replies

• We will fix it!
• Specifically, Amoco agreed to build a wooden
  fence between its property and its neighbors,
  install special lights, relocate the curb cut on
  54th Street to avoid conflicting traffic flows,
  and limit gasoline deliveries and operation of
  the car wash to between 700 a.m. and 1000 p.m.
  These changes apparently satisfied the neighbors

79
The Court Says

• While appellant presented all this evidence to
  show that the operation would not adversely
  affect
• The city presented no evidence that the operation
  would increase traffic, light, or noise in the
  area. Instead, it relied extensively on the
  residential character of the neighborhood in
  which appellant wishes to locate its facility.

80
Wait A Minute

• The court says you misunderstand the nature of
  the conditional use permit
• If the applicant can meet the conditions set down
  then the permit should be granted
• You cant just make up conditions they need to
  be stated in the ordinance
• Saying the it does not conform does not cut it
• You cant say the neighbors have to all like it

81
So Amoco Wins and Says
82
Pollard v Palm Beach

• Applicant applies for a SPECIAL EXCEPTION in a
  residential neighborhood to permit a congregate
  living facility for the elderly
• At the hearing the neighbors threw a fit saying
  that it would cause excess light, traffic, noise
  pollution, and generally impact he area as a whole

83
The Nasty Old Folks
84
Picture of Facility
85
Layout
86
Inner Workings

• The applicant meets all the requirements for the
  permit
• Retained a residential design
• Parking to the rear
• Building was staged with broken lines to retain a
  home rather than an apartment appearance
• Landscaping was OK
• But the Board Said that it would adversely impact
  the public interest

87
The Court Says Here Are the Rules

• The applicant is required to prove that they
  meet all the necessary criteria to obtain the
  permit
• The public on the other hand does not have to
  prove anything. They can make any accusation and
  yet the Board does not hold them to the same
  standard
• 'Public notice of the hearing of an application
  for exception . . . is not given for the purpose
  of polling the neighborhood on the question
  involved

88
(No Transcript)
89
The Special Permit

• Some land uses are truly extraordinary - either
  because they are very infrequently used, are
  temporary in nature, or have characteristics that
  could be exceptionally devastating to nearby 
  properties
• We can trace the permit back to the first zoning
  ordinances in the 1920s. It is almost always
  issued by the BZA
• Most authorities consider it a license to use
  property in a certain manner for a certain length
  of time - rather than an vested permit. Like any
  license, it can be revoked for misuse, reviewed
  and inspected frequently, and set to run only for
  a limited amount of time.

90
Limitations v Conditions

• Conditions are the hallmark of the conditional
  use permit
• A conditional use is a permitted use if all
  conditions for operation are satisfied
• Limitations are the hallmark of the special use.
  Prior conditions are often not known
• Each case is unique and will generate unique
  circumstances. Operational limitations serve to
  move the special use closer to compatibility with
  its surroundings

91
Background

• As always, there is confusion on the local level
  as to the proper use of this permit. Some will
  use it as conditional use, others will call it an
  exception or special exception. It is also known
  as a "special use permit." It is properly used in
  the following manner
• Permit public facilities and utilities in all
  districts
• A a license to use property for a certain amount
  of time such as to convert as single family home
  to care for elderly parents during their lifetime

92
Candidates for Special Permits
Nuclear Power Generation Station
93
Candidate Two
94
Candidate 3
95
Perhaps There Should Be A Special Permit for Taste
96
Further Observations

• The temporary aspect of this permit heightens it
  potential for misuse. Many small communities,
  desiring to accommodate a new, but controversial
  uses, will mollify neighbors by issuing a special
  permit with the understanding that it can be
  revoked if "things don't turn out as promised."
• In the rarest cases, the special permit is a
  case-by-case designer tool. Consider the case of
  a low level nuclear waste dump. Not only is it
  exceptionally controversial, but also, few
  planners would have the foresight to contemplate
  the criteria necessary to make ordinance
  provisions governing its location

97
An Example

• Some uses have tremendous potential for
  interfering with the enjoyment of nearby
  property.
• A classic example is a rock or gravel quarry.
  These facilities, although essential for natural
  resource extraction, are loud, frequently run 24
  hours a day, use explosives, and produce
  excessive amounts of dust. The special permit
  limits their duration by authorizing operations
  for a set amount of years, and employs conditions
  to limit their impacts. Operations are typically
  reviewed each year to determine if they must be
  terminated, or if additional conditions need to
  be imposed

98
Perry v Hawaii County

• Shield-Pacific Limited filed an application for a
  special use permit to operate a quarry located in
  a district zoned for agricultural purposes
• The special use permit must be approved by the
  County of Hawaii and the State Law Use Commission
• The subject property is an old quarry site last
  used in the 1920s
• The application to the Director of Planning of
  Hawaii County required that the applicant submit
  27 items ranging from a site plan, a road plan to
  an EIS

99
The Hearings

• Hawaii County voted to issue the special use
  permit but with stringent limitations to use
• Reduce the area of operation from 65 to 25 acres
• Operation between 700AM and 500PM weekdays
• Portable machinery and buildings no
  construction
• A five year time limitation on the special use
• Those that attended the meeting in opposition
  strongly objected that the operation would ruin
  their rural lifestyle and that earthquakes,
  floods, flies, pestilence, and plagues of a
  biblical nature your follow

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The Quarry
101
Rural Lifestyles in Hawaii
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Future Hearings and Findings

• Hawaii County represents and the opponents
  appears before the State Land Use Commission
• The Commission approved the special use permit
  without modification
• The adjacent landowners brought suit alleging
  that the issuance of the special use permit
  exceed the authority of both the County and the
  State Commission
• Much agony and grief followed as the quarry went
  into operation while the matter awaited trial

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Leaders of the Stop the Quarry Opposition Group
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The Courts

• The trial court found for the County and the Land
  Use Commission concluding that the suit lacked
  merit
• The Appeals Court reversed noting that the County
  exceeded its authority and discretion in issuing
  a special permit to allow operation of the quarry

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Hawaii Supreme Court

• The Hawaii Supreme Court reversed noting that the
  Hawaii National Planning Lands Act designates
  nearly 80 of the Islands as Agricultural Lands
• The legislature made it quite clear that the
  Counties and the State Land Use Commission could
  issue discretionary permits for limited
  activities on these lands

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Analysis

• The commission found the proposed use was
  consonant with the objectives of the Land Use Law
  and the county zoning code, it would be a
  reasonable use of the land involved, it would not
  adversely affect surrounding property, it would
  not substantially alter the essential character
  of the land or the use to which the land was then
  being put, and it would be the highest and best
  use of the land involved.
• The operational rules were consistent with the
  limited nature of the use that allows it to run
  in the form of a license for a period of time

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Conclusion

• The court notes that the permit grants a
  privilege and not a property interest or right. A
  privilege may be suspended or revoked at will for
  a violation of the limitations of operation. A
  privilege is personal, it cannot be transmitted
  from owner to owner and cannot established a
  non-conforming use right
• By comparison, a conditional use permit is a
  property right of permanent duration that passes
  from owner to owner as long as the established
  conditions are adhered to

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Finally, The Exception

• An exception, under the general rule, is not an
  instrument. Rather, it is a statement in the
  ordinance "excepting" one or more uses of the
  land or buildings for the normal ordinance
  requirements
• Maximum Height In the M-1 district, no building
  may exceed a total height of 48 feet, except
  that, buildings supplied with a NFPC approved
  automatic fire suppression system may be erected
  to a total height of 60 feet

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More Examples

• R-1 Single-Family Residence District - Permitted
  Uses single-family residential structures
  schools churches utility substations and,
  listed home occupations - except that, a funeral
  home shall be permitted on any lot with a front
  width greater than 95 feet with a depth greater
  than 90 feet, provided that no such funeral home
  shall locate with 1000 feet of another, existing
  funeral home

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However

• In many zoning ordinances the exception is an
  instrument of relief. The BZA is required to
  review all exceptions to insure compatibility
  with their surrounding prior to the building
  permit. Furthermore, some ordinances employ the
  exception as a conditional use and simply
  substitute one term for another. To confuse
  matters, we have encountered a few ordinances
  that use the term special exception and
  substitute it for a special use or even a use
  variance

111
Examples

• To provide minor variations from the zoning
  ordinance to avoid the lengthy appeals process
  Chicago
• No adult entertainment establishment shall be
  established except in the (general commercial)
  district and except subject to the following
  limitations
• (1) A minimum of one thousand feet (1,000') from
  any other adult entertainment business
• (2) A minimum of one thousand feet (1,000') from
  any residential zoning district Sonoma County

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