NOTE: This summary is very simplified, and is provided for informational purposes. Any questions on this topic should be directed to The Office of the Property Rights Ombudsman.
A “Conditional Use” is a land use that has unique characteristics or negative effects that may not be compatible in an area without conditions to mitigate or eliminate the detrimental impacts.
A local government has authority to designate uses as conditional, but that designation must also refer to performance standards that guide decisions on what conditions may be applied. The designation must be in the local government’s land use ordinance. A use may be listed as permitted in one zone or area, but be conditional in another zone or area. Any use that a land use regulation allows in a zoning district must be classified as either a permitted or conditional use.
The local government also establishes the method to consider applications for a conditional use permit. Consideration should focus on facts and applicable standards, and avoid “public clamor,” or emotional arguments for or against a permit. An application may be denied only if the reasonably anticipated detrimental impacts cannot be substantially mitigated by reasonable conditions.
“Applicable Standards” refers to guidelines in an ordinance that help determine the type and extent of conditions that may be imposed on a conditional use. These standards establish objective goals or levels of performance, which then guide decisions on the conditions which are adopted.
Most land uses impact the public’s health, safety, or welfare in some way. The detrimental effects identified for a conditional use should be related to negative impacts on legitimate governmental interests, or on the public welfare.
Conditions may be imposed to mitigate, or lessen, the detrimental effects of the proposed use. The conditions must be reasonable, must address the identified effects, and must refer to the applicable standards already identified in the land use ordinance. Put another way, if the detrimental effects are the problem, then conditions are the means to solve the problem. Standards guide decisions on the nature and extent of the conditions, and the standards are also the means to measure success of the conditions.
Local ordinances establish the process to approve a conditional use, including whether the local jurisdiction will hold a public hearing on the conditional use application. In general, a property owner must submit an application for a conditional use permit. Often, staff will review and decide conditional use permit applications. Sometimes, however, jurisdictions require the land use authority, which may be the planning commission or staff, to consider conditional use permit applications.
State law does not require a public hearing when considering a conditional use permit decision. Nevertheless, local jurisdictions can choose to require them. Consider, however, that doing so presents some problems. The public often misunderstands the law and expects the land use authority to deny the application based on public clamor. In a public hearing, the land use authority may consider factual information presented by the public supported by evidence or expert opinion, but may not base a decision on the popularity of a use (or the applicant), attacks, information not supported by evidence or expert opinion, or on emotional appeals.
The Utah Code only allows a jurisdiction to deny a conditional use application if the detrimental impacts of the use cannot be substantially mitigated with reasonable conditions in accordance with applicable standards in the jurisdiction’s ordinances. If the use is denied, the land use authority must determine the negative impacts, and must also find the impacts cannot be mitigated with the imposition of reasonable conditions to achieve compliance with the applicable standards contained in the local ordinances. If the detrimental effects can be mitigated by the imposition of reasonable conditions, the use must be approved, and the land use authority may impose reasonable conditions. Any decision must be based on substantial evidence in the record of the proceedings.
A decision approving or denying a conditional use permit may be appealed by the applicant or an adversely affected party, which may include an adjoining neighbor or a person suffering an injury distinct from the general community as a result of the decision. The decision on the entire application may be appealed, or any of the conditions that are imposed. The specific appeal process is established by local ordinance, which may designate an appeal authority to review the matter. After administrative review, the appeal may be taken to a district court.
On appeal, the district court reviews the written record of the decision, including any documentation presented, and a transcript of any public hearings. Based on that, the district court then determines if the decision was arbitrary or capricious. A decision is arbitrary if it is not supported by substantial evidence.
A conditional use permit may be amended or changed by the local government, when needed to reflect changes in the use, or to address problems that have been identified. The same general rules and processes apply to amendments. Any conditions must be reasonable, and aimed at mitigating detrimental impacts. A decision on an amendment may also be appealed.
A local government has authority to enforce the terms of a conditional use permit, including compliance with conditions. Enforcement may include ordering compliance or terminating the permit, if necessary. The local government should include enforcement provisions in its ordinances.
Wadsworth v. West Jordan City, 2000 UT App 49 - The decision to deny an application for a conditional use permit may not be based solely on adverse public comment.
Uintah Mountain RTC, LLC v. Duchesne County, 2005 UT App 565 - Denial of a conditional use permit for a residential treatment facility was improper because the only basis for finding that it presented safety issues was public comment from neighboring landowners raising concerns of other similar facilities, without any evidence detailing actual safety issues with the facility being proposed.
McElhaney v. City of Moab, 2017 UT 65 - To properly deny a conditional use permit, actual findings must be made in the record.
Kilgore Companies v. Utah County Board of Adjustment, 2019 UT App 20 - Denial of a conditional use permit for a limited request of additional height on a particular structure was arbitrary and capricious where findings of detrimental effects were addressed at the overall use and operation of the property instead of any incremental problem posed by the limited subject of the requested permit.
Staker v. Town of Springdale, 2020 UT App 174 - In soliciting information from the public, the Town’s decision was not improperly based on public clamor where supported by other additional evidence.