Planning Commissioners' Decisions and Conditional Use Permits

by Matthew Cochran
(UT, USA)

Visitor Question: Can Planning Commissioners legally reference the General Plan as a basis for their decisions on a conditional use permit?

Editors Reply: Our first reaction to this question was to say yes, of course, a plan commission may and should base their decision about a conditional use permit on the general plan, called a comprehensive plan or even master plan in some towns and cities.

We stand by that answer if your zoning ordinance is appropriately well-written. As a small asterisk though, we have to say that perhaps you have a zoning ordinance that describes a conditional use permit decision-making process that says that the permit must be issued if a specific set of conditions are met. In our hypothetical (and we hope rare) example, let's say that meeting the goals, objectives, and policies of the General Plan is not included in this list of conditions. Probably in that convoluted case, a planning commission may want to avoid using the General Plan as one of its criteria.

However, if our somewhat crazy example went to court, in many states and jurisdictions, conformity with the comprehensive plan would be considered to be an implied criterion whether or not it was specifically spelled out.

This leads us to say with confidence that a planning commission not only may, but also should use the general plan as a basis for any and all decisions.

Nonetheless, it is good practice to make sure your zoning ordinance is as clear as possible. We also maintain that pointing out flaws and shortcomings in the zoning ordinance is part of the role of the planning commission. It may be attorney's job to draft the language to solve a problem or possible loophole, but we think commissioners should devote time and energy to flagging difficulties every time they arise in the course of conducting business.

It is also possible to add in zoning ordinance language on conditional use permits that would address specific General Plan priorities. For example, let's suppose that your General Plan emphasizes an increase in the supply of workforce housing affordable to your teachers and firefighters. Then let's also imagine that your zoning ordinance requires a conditional use permit for an alley house, a type of accessory dwelling unit. If your jurisdiction needs to emphasize to future decision makers that you want to tilt the scales toward allowing more accessory dwelling units, you could write language referring to the General Plan right into your zoning ordinance.

The plan commission can provide leadership in this type of discussion. Too often planning commissions leave the business of raising discussion topics to professional planners and attorneys, and forget that they too can exercise real opinion leadership within the scheme of city government. Also too often plan commissions in growing areas become so bogged down with the everyday business of responding to applications that they forget to take time for discussion of the implications of their development regulations and adopted plans.

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