City looking to abandon conditional-use ‘gray area’
by John Hales
The Times-Independent
Jan 04, 2018 | 1246 views | 0 0 comments | 44 44 recommendations | email to a friend | print

Moab’s planning officials are looking at the question of conditional use permits, and their answer might be to jettison the long-established staple of land-use law. It all comes down to the balance between private property rights versus community vision and objectives, especially when those things don’t run along parallel paths.

Or, as Moab Planning Commission Chair Laura Uhle put it, “These things that are fighting against each other … how do we manage them?”

Uhle, other commission members and Moab City Planning Department officials discussed the issue during a meeting on Dec. 14. Their goal is to avoid having their hands tied when it comes to allowing things in certain zones that they would rather not allow.

For instance, if zoning-regulation writers (i.e., planning commissions and city councils) felt that kennels would be okay in certain zones as long as there was no more than a certain number of dogs at any one time, or that sanitation standards were established and maintained, then kennels could be listed in the zoning ordinance as a conditional use in those zones.

Then, the would-be kennel would come before the planning commission, request a conditional-use permit, and ostensibly agree to conditions set by the commission. The commission would be obligated to grant the permit.

That last step goes against a common misconception that conditional-use permits can be approved or denied at the discretion of the planning commission.

It’s not that easy, said Moab City Planning Director Jeff Reinhart.

“It’s just kind of a viper’s den in some ways,” Reinhart said at the Dec. 14 meeting.

Any “discretion” the commission has is not really in deciding whether to grant the permit, but only in setting the conditions on which the permit is granted. Not only that, but the conditions themselves must be “reasonable,” as cited in Utah statute. Further, conditions can only be set if they relate to some kind of standard found in city ordinances (including planning documents such as the general plan).

For instance, the planning commission can only put a condition regarding noise mitigation on the imaginary kennel if there’s some kind of standard about noise already in city ordinances.

“If it meets the code, we have to approve it, and that is what we’ve encountered time and time again,” Reinhart said.

In a publication by the Utah League of Cities and Towns, conditional uses exist often “because the drafters of the ordinances cannot make the hard decisions about whether or not to permit or disallow a particular use.” Such cases can fuel what Brent Bateman, lead attorney in the Utah Office of the Property Rights Ombudsman, has called “public clamor.”

“We’re trying to figure out some way of eliminating much of the ambiguity,” Reinhart said.

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