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.
What is a Conditional Use?
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.
What Statute Governs Conditional Uses?
(1) A land use ordinance may include conditional uses and provisions for conditional uses that require compliance with standards set forth in an applicable ordinance.
(2)(a) A conditional use shall be approved if reasonable conditions are proposed, or can be imposed, to mitigate the reasonably anticipated detrimental effects of the proposed use in accordance with applicable standards.
(b) If the reasonably anticipated detrimental effects of a proposed conditional use cannot be substantially mitigated by the proposal or the imposition of reasonable conditions to achieve compliance with applicable standards, the conditional use may be denied.
How are Conditional Uses Designated and Approved?
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.
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 detrimental impacts cannot be mitigated by reasonable conditions.
What are “Applicable Standards”?
“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.
What are Detrimental Impacts?
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.
How are Conditions Determined?
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.
How is a Conditional Use Approved?
Local ordinances establish the process to approve a conditional use. In general, a property owner must submit an application for a conditional use permit. Often, routine matters are approved by staff, as long as there is no opposition. Other applications are approved by the locality’s Land Use Authority, which may be a planning commission or the locality’s legislative body.
A land use authority’s consideration of a conditional use permit should be done in a public hearing, and concerned members of the public should be allowed to express comments. The public may have important insights about the proposed use, which may be helpful for the land use authority. Although public comments are welcome, the application should not be approved or denied due to “public clamor,” which is emotional or baseless opinion on a matter. The land use authority may consider factual information presented by the public, but may not base a decision on the popularity of a use (or the applicant), baseless attacks or irrelevant misinformation, or on emotional appeals.
The Utah Code requires that a conditional use application may only be denied if it is shown that the detrimental impacts of the use cannot be substantially mitigated with reasonable conditions. If the use is denied, the land use authority must determine the negative impacts, and must also find the impacts cannot be mitigated. If the detrimental effects can be mitigated, the use must be approved, and the land use authority may impose reasonable conditions.
Appealing a Decision on a Conditional Use
Any affected person may appeal a decision approving or denying a conditional use permit. The decision on the application may be appealed, as well as any condition that is imposed. The specific appeal process is established by local ordinance, which may designate that appeals be taken to an appeal authority, the local legislative body, or both. 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.
Amending a Conditional Use Permit
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.
Enforcing a Conditional Use Permit
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.
Cases on Conditional Uses
Uintah Mountain RTC, LLC v. Duchesne County–Decision to grant or deny a conditional use application must be based upon substantial evidence; consent of neighbors may not be a requirement for a conditional use permit
Wadsworth v. West Jordan City–Denial of conditional use permit may not be based solely on adverse public comments, but must be based on substantial evidence