Saturday, December 5, 2015

 The “Conditional Use Permit” (CUP) in Mariposa County Planning-The BIG LIE!

Introduction
In recent public hearings our Mariposa County Planning Staff have argued that the CUP process give the County more “control” over potentially obnoxious, hazardous and “nuisance” type uses. The reality is that the CUP process DOES NOT GIVE COUNTY OFFICIALS any NEW “controls” but, instead GRANTS THEM NEW POWERS! The CUP process creates the POWER to say NO and is a continuation of a long “backward” tradition “POLITICIZING Mariposa County’s “planning” process. It feeds, what is known as the “ZONING GAME.

The Conditional Use Permit in Law and Practice
A Conditional Use Permit, or “CUP”, is a planning process set-forth in California Government Code Section 65900 to 65909.5 wherein a “legislative body” (Board of Supervisors, City Council, Planning Commission) may (after holding a public hearing or hearings), Approve, Deny or Conditionally Approve a “Use” on a specific piece of property in accordance with local “Zoning Laws”.

There are TWO key provisions added, by a CUP requirement, to the local government “permit” process;

1.      The “Power” to Deny, and
2.      The “Power” to Conditionally Approve, NOTHING ELSE!

A CUP creates a fundamental change in a “Property Right” under the law. While most permit processing agencies are careful with the “deny” aspect of this process and the “takings” implications in any legal challenge, the “conditions” of “approval are an area concern; this is where public agency “extortion” often occurs. It is not uncommon for a CUP to be “conditioned to death” as an alternative to outright denial. “Special” CUP “Conditions”, that is unreasonable or particularly “burdensome” or expensive, are applied as conditions of CUP “special” conditions and make the project uneconomical to pursue.

In some instances, through the “Environmental Review” process, applicants are forced to fund studies that document “problems” that are unrelated to a specific “project” but “might” result in “cumulative” project impacts that “Must Be Mitigated” before a project can be developed. These are “problems” that existed independent of the “project” but the “project” is forced to solve the problem.

All of this adds uncertainty to the “permit” process and acts as a significant “disincentive” to any major community “investment” by the private sector.

A CUP is a “descreationary” permit, like a rezoning or a General Plan Amendment. That means that the decision making body, with some limits, has “discretion” with respect to their actions on the application as opposed to a “Permitted” (Non-Descreationary) permit. Examples of “non-descreationary permits are building permits and MOST zoning permits. These non-descreationary permits are subject to rules and standards that are typically NOT SUBJECT TO CHANGE for an individual permit application.
 “Descreationary” CUP projects are subject to CEQA (Environmental) review where non-descreationary permits are typically exempt. This adds additional costs and time for permit approval.

In the real-world, “discretion” and “public hearings” tend to politicize the permit process and is the primary “planning” tool that empowers the NIMBY (Not In My Back Yard) types of actions that characterize many planning related “public hearings”.


 “The Zoning Game”, (Babcock), written back in the late 1960s, (THE ZONING GAME: MUNICIPAL PRACTICES AND POLICIES. By Richard F. Babcock. The University of Wisconsin Press, 1966.) characterized the way that the “public hearing” process has been, and is, abused by both special interests and public agencies. A recent update to Babcock’s newer book, “The Zoning Game Revisited– 1985, Babcock added a collection of 11 case studies on local land use politics that offers behind-the-scenes analysis of decision making on zoning controls and land development. This later version of his book is more appropriate for the general reader as well as lawyers and planners, the cases illuminate many lessons that can be learned from well-documented land use disputes in eight states


The Background of the CUP in “Planning” in Mariposa County
The “CUP”, as a planning “tool” in Mariposa County dates back the County’s early efforts at zoning. In the late 1970s, the County had four zoning districts; The “Residential Zone” that encompassed the residential areas of the Mariposa Town site, the “AE or Agricultural Zone” that covered much of grazing land in the south end of the County (Cathay’s Valley, Hornitos, Green Mountain), the “TP or Timber Preserve Zone” for the forested areas in Greely Hill or bordering Yosemite National Park and the “Unclassified” or Ordinance 180 Zone that covered all areas of the County that was not “Zoned” by other Zoning Districts.

The old Unclassified Zone was, jokingly, referred to as the “Anything goes with a CUP Zone” and that is exactly how it was written. “All other uses that, in the determination of the Planning Commission were injurious to public health, safety and the general welfare” were subject to the Conditional Use Permit (CUP) requirements of the County.

There was, in the early days, a strong sentiment in the Mariposa County that Zoning was a “subversive governmental tool to deprive a property owner of their Property Rights”. This “aversion” to Zoning was partially resolved with the required State mandated “update” of the County’s General Plan in the late 1970s by the State Office of Planning and Research and the State Attorney General’s Office. The plan was written with “Use Standards” and after its adoption, these standards became the measure of those “uses” that were deemed to require a CUP under the “Planning Commission” determination of need. It was called “Zoning Creep” but it created some level of protection for the expanding “Rural Residential” development around the County that was threatened with “junk yards”, pig farms” and other “uses that, in the determination of the Planning Commission were injurious to public health, safety and the general welfare”.

In the mid/late 1980s, Mariposa County adopted its first comprehensive Zoning Code, Title 17 but many of the CUP requirements of the old Ordinance 180 “Unclassified Zone” were incorporated into the new code. The code itself did not establish many “performance standards” or regulations except as were established with specific State Laws, like the Surface Mining and Reclamation Act (SMRA) that regulated “surface mining” in the State of California and was “implemented” by the County to create “local control and administration” of these “State Mining Laws”.

In many ways the “evolution” and legally mandated conformance of local regulation and zoning standards has been a “wrenching” experience for local elected officials. Some of the most controversial public hearings in the County’s modern times were on Planning Regulations, Zoning and “permitting” of large projects such as Hotels, Golf Courses and “Mining”.

As a result, it took over 20 years for the County to update the General Plan that was written and adopted in the 1980s. This “aversion” for “planning controversy” played a role in failure of the County up bring its Zoning Codes, Title 17 as required by law. Recent efforts to conform with the law were inspired by renewed interest in “reactivating” Historic Mining properties in Mariposa County.

Where We Are Today
The current Zoning Code “Update” was initiated in response to a proposed large scale “mining” project in Bear Valley, that was a “permitted use”, not subject to a CUP, in the Zone AND General Plan. Like most “project driven” legislation, the Zoning “Update” failed to address overall inconsistency between the General Plan and the County’s Zoning Code but rather focused on one issue; MINING!

Instead of amending the zoning code to conform with the “Use” standards contained in the General Plan, the “Planners”, under pressure from some special interest groups, determined that a Change was in order in the General Plan to conform with SOME of the Mining restrictions that existed in the old Zoning Code. Furthermore, when it was found that Mining was a “permitted” use, in some existing zoning districts (including those reserved for mining) and these “permitted” stamdards were “Amended” out of the existing Zoning Code as well!

This comprehensive approach to restrict mining, in this Mother-Lode-Gold Rush County, is reflected in the actions of the Mariposa County Board of Supervisors, in Mariposa County Resolution Number 2015-543, “A RESOLUTION APPROVING GENERAL PLAN/ZONING AMENDMENT NO. 2015-126, AN AMENDMENT TO GENERAL PLAN POLICIES AND ZONING ORDINANCE REGULATION FOR MINING PERMITTING”. This is the General Plan Amendment part of major action by the Board of Supervisors regarding changes in County Mining Policies was adopted by the Board on November 17, 2015.

The argument, in support of this wholesale reversal of County Policy is based THE NEEDED “CONTROL” provided by new the CUP provisions. The changes from “Permitted” to “Conditionally Permitted” of ALL mining in Mariposa County is necessary, it is argued, to give the County more “Control” over mining operations and eliminate the potential for the creation of “hazardous” and obnoxious “mining” uses in the County. It should be noted that these new regulations ONLY apply to “large scale” mining operation on parcels of 160 acres or more and that not a single new standard or regulation was established to minimize the creation of “hazardous” or obnoxious mining activity on any mine, on any size property.

The General Plan Amendment/Zoning Change-A Step Backwards for Planning In Mariposa County
It is important to understand the different approaches to “planning” and zoning and why this expansion of the “descreationary” permit review authority of the County of Mariposa is a “step backward” in the “evolution” of the County’s Planning program.

As the writings of Richard Babcock, in his “Zoning Games” anthology point out that the abuse of authority, by local governments, in the application and administration of “Zoning” rules and processes have had detrimental effect on our entire “planning” efforts and has diminished the image of our local governmental institutions in the minds of the general public. It is seen as a “GAME” by both applicants and “citizen” participants; the “neighbors” in the NIMBY “Game”.

The CUP process is a big part of the problem, with its “public” focus on “Subjective” issues, as opposed to “Objective” standards. The “public” process interjects opportunities for abuse by various “interests” that can use this process of encourage a “public body” (City Council, Board of Supervisors, Planning Commission, Board of Zoning Appeal, etc.) to “do the right thing” that appears “politically” popular. Sometimes there is out-right corruption in the process.

Most “corruption” cases, in local governments, are based on “planning” and zoning decision making where “public officials” either “block” a development or “approve” as special interest development project that is otherwise inconsistent with established public policy. In his writing, Richard Babcock suggested

In his book, Richard Babcock poses three specific lines of action as the basis of needed zoning reforms:

 (1) more detailed statutory prescription of the required administrative procedure at local levels;
(2) statutory restatement of the major substantive criteria by which the reasonableness of local decision-making is measured; and
(3) creation of a state-wide administrative agency to review the decisions of local authorities in land-use matters, with final appeal to an appellate court.

The Modern Approach to Zoning
In many local government jurisdictions, Planners have taken Babcock’s suggestions to heart. Many Modern Zoning Codes are written to minimize the “descreationary” elements of permit process and rely on “Performance Standards” or “Performance Zoning” to minimize conflicts between competing uses.

Performance zoning is a land use planning concept that has its roots in building codes that established performance standards as opposed to specification standards. An example of a performance standard would be “that walls, floor and ceiling be so constructed as to contain an interior fire for one hour.

This has taken the “political” opportunities out of these codes. Many modern zoning regulations implement “mixed-use” standards that, in highly populated areas, reduce automobile traffic impacts and improve neighborhood “convenience”. Mixed-use zoning is dependent on “performance standards” to minimize or eliminate traditional “Use Conflicts”.

The “Standards” based zoning code uses the CUP process to guide a development towards a community adopted objective or give a developer an opportunity to “innovate” while accomplishing an adopted “community objective”; as established in the General Plan. The most important value of the “Performance” or “Standards” based zoning regulation is that it provides developers, investors, property owners and residents a clear set of “rules” that must be followed on a project. The answer to the question “What do I need to do” is answered at the beginning of the “permit entitlement” process as opposed to a “descreationary” permit process where the “answer” is not available for many months, even years, at the END of the permit process.

It is this “unknown” aspect of the permit/entitlement process that is a major disincentive to development investment in a community. In Mariposa County, like all “local governments” around the State and the Nation, the creation of a healthy economic environment AND a healthy physical environment, requires that we “evolve” our planning and development practices to reflect modern technology, life-style and “standards” of living.

There is an ongoing debate over “control” in all matters relating to permitting and development. This trends, over the past 20 or more years has been to move “planning decision making” to the Regional and State level. Air quality, and water quality are obvious “regional” and State-wide concerns. As the “Zoning Game”, by Babcock, brings to light, economic health and stability are taking on more “regional” and statewide emphasis and there are movements towards “regional” standardization of certain land use practices.

If the concept of “local control”, by locally elected officials, of land use and planning is to be maintained, we need to “evolve” our “local planning” practices to minimize the “political” descreationary permit review system in OUR County and move our system towards “objective” Standards based codes that address REAL issues and potential points of “conflicts” between competing uses.

So, Where Do We Go from Here?
The Planners and Leaders of Mariposa County need to step back from this special interest course of action, as reflected in General Plan/Zoning Amendment No. 2015-126 and take a comprehensive look at how modern application of zoning and development regulatory systems need to be implemented in Mariposa County.

Instead of an overhaul of our General Plan, to restrict and/or eliminate mining as a “Use” in Mariposa County, we need to research an implement Performance Standards for the proper and “same” operation of a mining industry in our County that would expand and enhance our local economy and create “Family Supporting” jobs, unlike the “welfare” supported service industry that that we now rely on as our primary economic “engine”.

We have both the time and the resources to undertake a comprehensive review of or Zoning and general development codes to Implement our General Plan in a manner that was adopted following many years of public review and debate. It’s time of for our Mariposa County Planning program to REVERSE the “regressive” course that it has taken over the past several years and, again, start BACK down the road to “evolving” a Planning program that reflect our modern technology, societal “norms: and preserves and protects the “values” that are part of the cultural fabric of our community.



References:

[PDF] The Code of the City: Standards and the Hidden Language of Place Making

E Ben-Joseph, MJ Kiefer - 2005 - goulstonstorrs.com
... to social reform led to the first zoning codes (based on Prussian precedents) to reduce land use
friction in industrializing cities and to subdivision codes to regulate rampant land speculation.
The public health and sanitation movement also relied on uniform 
standards, as did the ...

Zoning for minimum standards: the Wayne Township case

CM Haar - Harv. L. Rev., 1952 - HeinOnline
... lots of three acres or more, and fire- fighting equipment had all been planned for a density of
population 
based on the ... 728, 12 NW2d 387 (1943): ruling that each zoning case must be
determined on its own facts and circum- stances 
... (Truly a stark comment on the standards of the ...

Performance Standards: A Viable Alternative to Euclidean Zoning

LL McDougal III - Tul. L. Rev., 1972 - HeinOnline
... claims against ordinances that establish broad or almost no standards have in the past been
based on the premise that they constitute an impermis- sible delegation of legislative authority.
See also Mandelker, Delegation of Power and Function in 
Zoning Administration, 1963 ...

Performance-Based Planning Perspectives from the United States, Australia, and New Zealand

DC Baker, NG Sipe, BJ Gleeson - Journal of Planning Education …, 2006 - jpe.sagepub.com
... Second, performance measures within tradition zoning dis- tricts simply apply
performance-
based standards to zones defining, for example, floor area ratios,
impervious surface ratios, and other detailed performance measurement. 
...

Impervious surface coverage: the emergence of a key environmental indicator

CL Arnold Jr, CJ Gibbons - Journal of the American planning …, 1996 - Taylor & Francis
... Schueler (1994a) rec- ommends watershed-based zoning that “is based on the premise that
impervious cover is a superior mea- sure to gauge the impacts of growth, compared to population
density, dwelling units or other factors.” In Alpine Township, Michigan, concern about 
...

[PDF] Form first

P Katz - Planning, 2004 - fltod.com
... Unlike use-based zoning, form-based codes also specify a minimum height in order
to maintain a proper street wall. Siting 
standards control the placement of structures
in relation to fronting streets and adjacent building lots. 
...

Form-based land development regulations

RJ Sitkowski, BW Ohm - Urb. Law., 2006 - HeinOnline
... a readily identifiable set of component parts— the elements of a form-based land development ...
A "key map," akin to but very different from a 
zoning map, showing the sites ... matrix with supporting
diagrams covering bulk, height, coverage, and "in-building" use 
standards, and are ...

Overlay Zoning, Performance Standards, and Environmental Protection After Nollan

RJ Blackwell - BC Envtl. Aff. L. Rev., 1988 - HeinOnline
... Agency may scientifically develop maximum pollutant discharge levels for an industry that may
be subsequently adopted by a local community in its 
zoning ordinance. 14 Primitive standards
are more general than precision 
standards, and include standards based on nuisance ...

Wayne Township: Zoning for Whom?: In Brief Reply

CM Haar - Harvard Law Review, 1954 - JSTOR
... It is highly pertinent that a recent report to the President includes descriptions of many state and
local 
zoning ordinances, all of which are based on space occupancy standards which vary with
the number of occupants." Further, most model codes, such as that of the American 
...

Zoning for parking as policy process: A historical review

E Ferguson - Transport Reviews, 2004 - Taylor & Francis
... practice. Today they generally advocate more specific parking standards based
on broader national experience. 
Zoning for parking nonetheless appears to be a
more flexible strategy today than it was 50 years ago. Parking 
...


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