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 ...
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 ...
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 ...
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
... 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. ...
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 ...
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. ...
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
... 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 ...
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 ...
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 ...
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 ...
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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