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Conditional Use Permit Did Not State Hours of Operation

Visitor Question: There is a building that is on property that is zoned residential and is surrounded by residentially zoned property. The city does not have a specific City Code that states uses after 10pm are not allowed, but the police address noise complaints after 10pm. Also, daycares are required to close at 9pm.

The City comprehensive plan is to maintain the character of low-density neighborhoods.

Is a property that applied for a conditional use permit, that indicated the hours of operation would be between 7am and 10pm, allowed regular use of the building after 10pm and through the night? The resolution did not state that the conditions for approval would be a use between 7am and 10pm, but I think that is because the City was not informed that there was a need after 10pm.

I think if the building said it needed to use the property after 10pm and into the early morning that the City would have made it a condition that the building could only operate between 7am and 10pm.

I think the process requires an accurate account of the use and hours and the building did not provide this.

Does the city have to allow use of the building after 10pm and into the early morning because the City did not state the hours in the resolution?

Editors Respond: We want to re-state the important points in your question, so that if we have misunderstood, you will know to take our answer with a grain of salt.

You say that the applicant indicated that operations would cease at 10 pm. We are interpreting this to mean that this was either submitted in writing on an application form, or it was stated at a public hearing. Then you also relay that the times of operation were not included in the adopting resolution.

If it was stated in a written application, the city might have some enforcement mechanism if their resolution granting the conditional use permit refers in general to all statements made on the application. Often this does not occur though.

If you obtained the 10 pm time from the applicant's testimony at a public hearing, in most states there is little recourse if the applicant just lied. That happens in many instances.

The blame for this situation rests mostly on the city. This is a good lesson for elected officials and their attorneys. It is critical that the "conditions" of the approval be included in the conditional use permit! Now the city has no formal leverage against these property owners or tenants if they are coming and going at all hours of the night.

State law or even case law might overrule what we are saying here also, so consider this general guidance based on typical conditions in the U.S.

You the neighbors can ask for enforcement of a noise ordinance, although most of those specify a decibel level that cannot be exceeded, and it is often pretty high. Typically cars and conversation that might disturb your sleep are actually not loud enough to trigger the noise ordinance. To prosecute a noise complaint, police or code enforcement would have to actually measure the decibel level if that is how your ordinance is written.

Another angle is that you say that day care centers are required to close at 9 pm, and we are assuming that this business is a day care center. Ask the city to enforce whatever ordinance requires this 9 pm closure time, and ask repeatedly if necessary. If it is the staff that is coming and going at all hours of the night, ask the city to impress on the center's management that it is expected that activity cease very quickly after closing.

We suggest having a direct conversation with the owners of the business, which we are presuming to be a day care center. When you do this, bring other neighbors with you so that you are not easily pushed aside as just being cranky. Perhaps the city will join you in this conversation. Here we mean your elected officials, who usually will be taken somewhat more seriously than city staff. If by chance the business is a franchise or large chain, you may have to accept meeting with a local manager, but in that case, don't be afraid to communicate by phone or in writing to the president of the company.

In your conversation, try to remain civil and respectful. At the beginning of the conversation, be gentle and suggest that perhaps the person you are meeting with is not aware of the impact of the late night activity on the neighbors. Suggest also that there may be some mutually acceptable solutions. For example, if this is a day care center serving some parents who work evening or night shifts, perhaps they will agree not to take on any more customers who come or go after 10 pm.

Of course we can't assure you that a face-to-face meeting will have a positive outcome, but if you handle it respectfully, it is very rare that this approach actually worsens the situation. You have not much to lose and potentially a lot to gain by a civil discussion about the hours of operation.

Best of luck to you.



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