Agenda - Planning Commission - 07/10/2006

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190 Planning and zoning officials: know the authorib/granted to your board by reviewin~ your state legislation. Only Florida and Georgia have no enabling legislation for establishing a board of adjust- ment. Therefore, local governments in these states have considerable latitude on estab- lishin$ them and defining their ro[ea. This latitude alao applies to the review of variance requests and hearing appeals of administrative decisions. Several states do not have specific [e§islation about conditional uses, despite the author- ih/to establish a board of adjustment. In these states, legislation authorizes the hoard and describes the state's role for variances. The local government, with help from its legal coun- sel, may include conditional uses within the zoning ordinance and assign review proce- dures to staff. North Carolina grants general power in its enabling Ie~is[ation. The board of adiustment is granted the "power to vow or rnodi~/any of the regulations or provisions Of the ordinance so that the spidt o( !he ordinance shall be observed....' (North Carolina General Statutes ~6oA-3gB). The board is also authorized to impose condiUons. In contrast, California has specific requirements for the issuance of special use permits. Conditional Special Special Conditional Spedal Special State' UsePermit Exception UsePermit State~ UsePermit Exception UsePermit Alabama X Montana X Alaska Nebraska Arizona Nevada X X X Arkansas New Harnpsh[re X California X X New Jersey X Calo~do X New Mexico X Connecticut X X New YorkJ X Delaware X X North Cam[ina X X X Rorida: North Dakota Geor~ia~ Ohio X Hawaii X Oklahoma X Idaho X Oregon X X Illinois X Pennsylvania X X Indiana~ X X Rhode ls[and x Iowa X South Cam[ina X Kansas X South Dakota X Kentucky X Tennessee X Louiaiana X Texas X Maine X X Utah X X Ma,'viand X Vermont Massachusetts X Virginia X Michigan Washin~Lon X Minnesota X X West Virginia X Mississiopi X X Wisconsin X Missouri X Wvoming X neighborhood') the result could be a negotia- tion process between the properW owner and the zoning board of appeals. An ovedy vague or ambiguous standard is susceptible to a ia§al challenge because the resulting condi- tions may appear arbitrar,/. The key [s to the balance between broad standards that can lead to abuse and those so narrowly defined that the ability to assign conditions to circumstance is removed entirely. APPROVAL OF CONDITIONAL USgS Local decision makers should know if their state has enabling legislation for conditional uses. Depending on the authority established in the legislation, conditional uses may be approved administratively or by a review board, such as the board of adjustment or the planning commiaaion. . Some states have no legislation to direct local governments on establishing conditional uses, which means city planners have signifi- cant latitude to establish the process and eton. dards themselves. Other states have very gen- eral authorization in their statues--a~-ain. allowing [Deal government conside~ble lati- tude. Many states have enabling legislation with some direction on conditional uses. Finally. some states provide specific le~slation that says a local government must meet the defini- tion and requirements set forth in the state law. Typically. there are two ways to assign conditions in the approval process. Where spe- cific standards are set forth in the local regula- tions, a conditional use must demonstrate compliance with those standards. Them is lit- tle or no discretion authorized to the board of adiustment to assign standards beyond those specified. The behest is that this method adds certainty to the process, The potential impacts of a list of conditional uses were considered in advance and standards have been adopted to mitigate those impacts. All conditional uses are treated in a similar manner. However, a disadvantage may arise when a use is expected to have impacts that are not sen- tiently addressed by the adopted standards. The impacts could be greater, or just different. The standards may also be ad hoc--not set forth in the local regulations and [eaving the board of adjustment to decide on the con- ditions {standards) on a casa-by-case basis. The advantage to this approach is that every situation is addressed individually, based on the impacts of the proposed use. However, the stanaards imposed on a use in one ap- ZONINGPRACTIC£ 5.06