Zoning II

A zoning code creates zoning districts which establish permitted uses within each district. For example, a typical zoning ordinance might create various classifications of Residential, Commercial, industrial and open space districts. Each District will have permitted uses, uses which may proceed without special permit. If a use is permitted, then the landowner has an absolute right to build in accordance with that use, provided that setback and other building requirements have been met. A building or other permit issues, as a matter of right, upon a showing of compliance with the zone. Failure to issue a permit will give the landowner the right to redress by writ of mandamus or other appropriate relief.

On the other hand, zoning ordinance commonly establish certain uses which require a special permit. The plan may conclude that certain uses are generally compatible with the zone, but may require project-specific review to prevent the particular project from causing undue damage to the area. For example, a convenience store might be allowed in certain residential neighborhoods. But the planning authority may wish to review a developer's specific proposal to make sure that the basic residential character of the neighborhood is maintained. To this end, the zoning code will reserve the right of the zoning authority to conduct a factual review of the developer's proposal to decide whether to approve the propossal, or to approve that proposal subject to conditions. Uses which are not automatic, but subject to review are called conditional uses.

Importance of Standards. A well drafted zoning code will contain clear procedures for processing requests for conditional use permits. The best codes carefully define the standards which the zoning authority will consider. By creating clearly articulated standards, the zoning code avoids the charge that the decision resulted from influence or unfair pressure. Zoning should not hinge on the number of phone calls made to a City Council, but conformance with the plan and planning objectives. Standards constitute an important protection against arbitrary conduct. In the absence of standards, the courts are much more likely to over-turn rejection of an application for a conditional use permit.

Importance of Factual Findings.The zoning authority should carefully state its reasons in granting or denying a conditional use permit. Factual findings and reasons help a reviewing court determine whether the zoning authority was seeking to follow planning objectives, or instead whether the zoning authority responded to improper pressure or improper and irrelevent arguments. Failure to adopt findings makes the zoning authority's decision vulnerable to attack.

Conditions. Often a zoning authority will grant a conditional use permit with conditions. Those conditions may include setbacks, limitations on size, parking requirements, or other undertakings designed to prevent adverse impact. These conditions will be upheld if reasonbly related to planning purposes.

Judicial Review.The Courts will review municipal conditional use decisions. The courts defer to municipal decision making. But the amount of that deference is limited to some extent. In Minnesota, recent judicial decisions have seemed to indicate a greater willingness by courts to over-turn municipal decisions