A Temporary Use Permit Expands Zoning Flexibility

Temporary use permits are often allowed under a zoning ordinance, or perhaps through a free-standing municipal ordinance.   The purpose is to allow a land use that would not otherwise comply with zoning requirements on a temporary basis.

Each city puts its own spin on the activities that require a temporary use permit.   Common land uses that may require such a permit include sales and grand openings, auctions, art shows, charity events, carnivals, construction offices and yards, model homes that serve as sales centers in a subdivision, outdoor revival meetings, food trucks, pop-up restaurants or crafts shops, produce stands, Christmas tree stands, fireworks stands, camping for large festivals, car shows, and disaster relief kiosks or offices.



The zoning ordinance should list the criteria for approval or disapproval of applications.  Of course it should provide for an approval process that is simpler than for a rezoning.  Typical criteria for approval specify that nearby residents and businesses must be able to carry on normally.  This may further be modified to cap noise levels and lighting levels, prohibit unusual glare or odors, or prohibit closure of streets or making parking spaces inaccessible, for example.

Often the zoning ordinance itself details the maximum duration of a permit for each type of activity.  For example, a fireworks stand might be limited to two weeks in duration, while a model home might be permitted until all lots are sold, all but five lots are sold, or some such.  A construction yard might be limited to the actual time required for active construction.  Sidewalk sales might be permitted for no more than three consecutive days.

The process for granting temporary use permits varies.  Often these decisions are made by administrators on the basis of standards laid out in the zoning ordinance.  In other cases, the planning and zoning commission or some other entity must grant a temporary use that would be expected to last for a longer period of time.  This might pertain to a subdivision model home that might be expected to be open for a year or two.

The ordinance may also prescribe a maximum square footage to be devoted to the temporary use, hours of operation, square footage of allowable signs, the exact location of the activity or elements of it (especially sound equipment or major lighting installations in the case of carnivals, concerts, and so forth), and any mitigation measures that might be required.   For instance, if a Christmas tree stand is going to operate at night, it might be restricted in the types, location, and direction of lights in relation to a nearby residential area.  

Again it is a best practice for a zoning ordinance to spell out the range of mitigation strategies that might be required, so as not to leave these decisions to the discretion of a single administrator.  It’s too easy for a staff member to be accused of negotiating conditions, which can lead in the U.S. to a lawsuit claiming administrative overreach and therefore some type of damages or even a payment for a taking of land.

Often conditions for a temporary use permit include the amount of parking that will be required, or conversely, parking requirements that will be waived.

Like most zoning regulations, it is appropriate to spell out zoning districts where specific temporary uses may be appropriate.  For instance, maybe you never allow a temporary use for an outdoor tent revival in a residential district, but such a use in a commercial or industrial district might make plenty of sense if particular conditions can be met.

The zoning ordinance also might spell out stances toward tents, generators, sales of alcohol, or a range of other issues that might be problematic for neighbors.  Sometimes a bond must be posted to cover any costs to the municipality before, during, or after the event.  For example, a carnival or circus that does not clean up after itself could result in a considerable expense for a municipal government or neighbors.  A charity event that forgets to remove permitted traffic barriers or a grand opening that leaves thousands of peanut shells on the city-owned vacant lot next door can cause some scrambling the next day.


Appropriate Policy on Temporary Use Permit Usage

Our thought about temporary uses is that a planning commission would do well to anticipate as many applications and complications as possible.   Do not leave an administrator in the awkward position of having to tell a popular charity that the fiesta or rap concert cannot go on till midnight without any ordinance to back up this opinion.    

We also think that a temporary use permit that recurs year after year may not be in the best interests of the community.   We heard of a location that allows a six-month temporary use for farmworker housing that in no way meets any housing or existing property codes.   Our opinion is that communities who allow such things are encouraging sub-human standards for housing and ignoring the fact that such housing would not be permitted under any other circumstances.  If it’s good enough for migrant farm workers, maybe it is good enough for others in the community who need inexpensive options.

Many recurring temporary uses seem to involve charity events.  If a charity carnival can disrupt traffic and emit all manner of noise and traffic till 11 p.m. or midnight near a residential neighborhood, why couldn’t a for-profit business?   If temporary indeed applies to a very limited number of days, this type of action may be defensible, since we all may exceptions for our neighbors once in a while.  However, something that happens for two weeks every year may be cause for review of what is permitted in a particular zoning district as of right.



Sometimes municipalities may grant temporary use permits in the hope that the temporary pop-up restaurant or business will become permanent.   If this is the motivation for including temporary restaurants, for example, in a list of potential temporary use permits, why not consider zoning that allows the restaurant or particular type of shop?    We are big fans of the pop-up business as a means of potentially proving a market, creating a market, or demonstrating acceptability, but there may be little reason to grant a pop-up where that type of business would not ordinarily be allowed by zoning.

A few locales even have set forth a process whereby what they call a conditional temporary use is designed to lead to a permanent use if a business is shown to be viable.  If standards are not met, the temporary use expires.  This seems unnecessarily complicated to administer to us; our advice is zone it or don't, unless you are thinking of a pop-up for a month or less where it will do no real harm.  Even that duration is much too long, of course, if you suspect negative impact on a residential area.  Maybe you could have a maximum of three evenings for a pop-up restaurant for charity purposes, or a maximum of two weeks for a show house for charity purposes. 

Temporary uses can be quite beneficial if they give property owners or landlords much-needed income, raise the profile of an area in need of proof of a market, allow the community to enjoy a short-term fun event or charitable event, or encourage innovative thinking and community vibrancy.   No one would say that a large subdivision should not be able to have a model home or two or three, which essentially act as sales centers. 

Yet overall like all exceptions to ordinary zoning that people seem to request over and over, a string of similar reasonable-seeming applications and inquiries might be a good occasion for examining whether the zoning ordinance is too stringent and needs to be updated.

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