At the end of my last article (On The Spot With Zoning; February 11th, 2011) about spot zoning, which is an illegal granting of a land use activity, I mentioned about special permits. The use of special permits is a legal, time-tested and common method of land use zoning. At the recent CT Land Use Law conference I attended (hosted by the CT Bar Association), there was an entire lecture devoted to special permits.
So, what is a special permit? It is a means used by planning and zoning commissions to perform an extra review of a proposed but permitted land use activity in order to assess the compatibility of the use with other allowed activities in the zoning district in which it is to be done. This is a most important aspect of special permits. Traditional zoning laws were enacted in the 1920s in order to protect residential neighborhoods from incompatible activities, such as large office buildings, stores, and factories. A “simple” residential zone could be defined as allowing only houses. Anything else would be prohibited. However, this can lead to segregating compatible land uses from each other, a phenomenon that many people blame for urban sprawl.
A special permit process affords flexibility to a planning and zoning commission in balancing the need to protect individual residential neighborhoods (and other areas deemed “valuable” by a community) and the need to provide those things wanted and desired by an entire community (such as jobs, services and goods, public infrastructure, and recreation). These two items exist at the same time and compete for the limited space available in any town upon which to be built. Unlike an activity allowed by right (such as a single house in a residential zone), which would not come before a planning and zoning commission for review, an activity that requires a special permit process is reviewed by the commission.
It is an additional step designed to provide a thorough assessment of the proposed activity. It gives a planning and zoning commission the additional time to identify if the activity is or is not in conformity with a town’s master plan, the zoning regulations, and the method of zoning used by a town. It requires a commission to determine the compatibility of the proposed use of the land with what already exists around it. It allows a commission to put conditions on a special permit approval in order to lessen or prevent any adverse impacts the activity may have upon the surrounding area.
First and foremost, a special permit is granted only to an activity that is already allowed by the regulations in a specific zoning district. Thus, before someone seeks permission to do such an activity, the regulations provide detail for everyone to know ahead of time what is allowed in any zoning district. The regulations are not changed after the fact of the application having been submitted so as to allow the activity to be done (that is how spot zoning can occur).
Here is how this all works in your town. A Plan of Conservation and Development describes the desire of preserving residential neighborhoods. A zoning map is created showing where the residential zoning districts are located. Zoning regulations are written that detail the specifics of permitted and prohibited land use activities in the residential zone. Some uses are granted by-right (see above). Your town recognizes that there are various land uses that can be compatible with houses and do not need to be located far away from them, such as churches and religious buildings, small shops, home occupations, schools, or parks and recreational areas. The zoning regulations allow for these activities in the residential zone, but in order to protect the neighborhoods, such uses require a special permit before they can be done. The commission reviews the master planning documents and zoning regulations. It conducts a public hearing so the community, including those who live near the land to be developed, can have an opportunity to know what is going on and provide meaningful input. Depending upon the complexity of the proposed activity, expert review may be needed, such as by engineers. The commission can deny the application if it is clearly not allowed by the regulations or if it is incompatible with the residential zone. The commission may approve the application, but attach a number of conditions on the approval. There could be many conditions, such as those that pertain to hours of operation; lighting and noise; parking and on-site traffic; size and height of buildings; monitoring of construction; protection of nearby land, habitat, and drinking water sources; and distance from nearby houses.
This ability for a planning and zoning commission to apply conditions of approval upon an application is key. It is how a commission adds layers of protections. Public safety, health, welfare, quality of life, and environmental stewardship are important to us all.
A planning and zoning commission’s special permit review is not open ended. State statutes specifically provide a strict time limit by which a decision needs to be reached; otherwise no decision becomes a default approval.
Sometimes, a special permit approval is called illegal spot zoning when someone does not agree with the special permit decision that was made. Special permits and spot zoning are not the same and are quite different if the special permit process is handled properly.
When done with due diligence and fundamental fairness, a special permit process can be an invaluable means of how a town guides future growth and development, striking a practical common sense balance between individual property rights not being too restricted and a community’s land not being used unregulated. Special permits can be used effectively for a town to develop smart growth policies, to minimize sprawl, to limit encroachment upon natural resources, and to lessen the need for expensive public infrastructure. It provides that extra proactive step in the review process by which we all benefit.