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Ep. 71 | Mini-Series On Zoning Options To Utilize Your Property – Conditional Use Permits

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On this episode of The Mobile Home Park Lawyer, Ferd speaks about zoning options and conditional use permits. Ferd gives advice on how to get conditional use permits and mentions some issues that may come up when trying to doing so.

 

HIGHLIGHTS:

0:00 – Intro
2:21 – Ferd discusses examples of typical conditional use permits
3:26 – Generally you have to apply for a conditional use permit and go through an approval process
4:53 – Ferd talks about a common problem with conditional use permits and an experience with a client
6:52 – Ferd talks about an issue that was fought by another MHP owner that was taken to the supreme court and resulted in a change to state law
8:09 – Ferd explains how some fights against the government are a lose/lose situation
8:35 – An alternative to suing/caving in, is to compromise and request a conditional use permit
9:24 – Ferd speaks about one of the reasons why cities grant some of the variances

 

FULL TRANSCRIPTION:

Welcome back mobile home park nation. Here again, our third part in his little mini-series on zoning matters and really on items and strategies to maximize use of your property, things like rezone variants, and today we’ll cover more of the conditional use permits.

Basically, you know, an alternative route to fighting the city or working with the city being how the case may be to utilize your property in light of some code restrictions that are not helpful. So today on conditional use permits, these are probably more rare for MHP. But sometimes they are called cups, some people say CUPS, but really, I think this was cups. These are basically uses permitted on a permanent basis. So long as within the district, you know, the conditions are met. So it’s like an exception that can go on forever, as long as you don’t exacerbate it too much.

So similar to what I mentioned previously, there’s a lot of NIMBYs (not in my backyard) protests. People don’t like certain things, including mobile home parks. So the city wants to peace the unruly mob of protesters, but they recognize that there may be some merit to their cause. So they kind of split the baby if you will. And they give you some permission. So for example, it’s typical in a residential neighborhood, including mobile home parks, you’re not allowed to have a commercial business. You know, it makes sense that you don’t want some guy in a mobile home park, you know, fixing cars and running a used car lot or mechanic shop in the mobile home park. So my rules would actually preclude that. But you want the city rules to preclude that also. But I may not care if there’s a daycare or a nanny in the mobile home park, or somebody that you know, does tax prep, works a little you know, an accountant on the side, or I don’t know even baked cookies or something like that. And people come to their house and bake cookies. I met a guy the other day, he sells artisan bread. You know, frankly, I don’t care if you’re selling artisan bread. The city might care because it’s a slippery slope. If they let Ferd sell artisan bread, how are they going to tell the other guy no, if he wants to do a lawnmower repair shop?

So typical conditional use, okay Ferd you can have your artisan bread, commercial business, in a residential or in a mobile home park, zoning classification, we’re going to limit it, we don’t want a bunch of traffic. And we don’t want to put as much stuff coming and going all hours the night also, because that could be covered for some illicit business like sale of drugs. So the way they can limit and say look Ferd you have limited signage like you can’t put a big sign up Ferd bread, you got to basically just word of mouth or your website or something else people know it is in your house. Second, you’re going to have regular hours operation like nine to five, you can’t have people coming and going at midnight. Third, you can’t have people park on the street, or do a drive-thru, they got to go in your driveway and park and walk up to your house, which obviously limits the number of people to how many cars can fit on my driveway. So those are some conditions that the municipality would impose on the property owner as a way to induce behavior or restrict negative behavior.

So typically, you have to apply for a conditional use permit, typically you do when you get caught, frankly, when you get caught doing your work or exposed when you want to start doing it, and it’s not permitted. So you go ask for special permission. And you go through an approval process. Sometimes these are given by a quasi-government agency, like the board of zoning adjustment. Other times depending on the CUP, it could be administrative, but you know, it’s typically an ask for permission kind of process. Some of the flaws with these similar to the variances is I can argue on, I need a variance I’m a special exception, I need the conditional use. Well, maybe my opinion. So the city may not give it to me even though it should be reasonable for them to do so. Alternatively, the city may tell me Okay, we’ll give it to you. But you got so many restrictions. So for example, in my bread business, you can open your bread business, but you’re only allowed to be open on Sundays you know, between noon and two. I mean, okay, and you got to put a fire-retardant roof on and a bunch of other stuff because now you got an extra bread oven in there. Okay, well that’s not going to make my business work it, so the conditions are too restrictive or too burdensome. It’s going to neuter the value of the CUP.

So that’s a common problem with those in general. I mean, I had a client, I don’t know if it was a CUP or variance. But basically one or the other the city said, we’ll let you bring homes in, and he had a grandfathered right to bring homes in because he was exempt from the code. And when we were fighting it, the city said, well, we disagree. So, okay, okay, client, we can sue. Well, that’s an expensive deal and a lawsuit, it wasn’t certain. There wasn’t local case law that was on point, it was just looking at a macro level, you know, global law and understanding of these matters. That was on our side, we had an obstinate count in a small town, and a client that, frankly, didn’t have the money, or the appetite to pay for litigation. So he decided to go the route of permission. I tend to fight instead of ask permission sometimes, but he went the route, asked for permission, either variances or a CUP, and the city said okay, we’ll let you bring these trailers in, but they got to be five years or newer, five years older or newer. Well, that didn’t really work financially in this market, he couldn’t buy new homes and sell them reasonably. So it was so onerous that and then frankly, there was no rational basis for that. And you can’t prove to me that a five-year-old home is good for the public health safety and welfare, morals of the community. But a six-year-old home is not. And then also to those, it was great, do those five-year-old homes, do they become too old five years from now? And are now six years old? Or are they grandfathered from that code? The city didn’t really want to cave on that. And I guess we’ll never know because we never agreed to that provision. And we never fought the city, we just, the guy just moved on. And I don’t blame him too much, the city would be obstinate and it just wasn’t economical in that case to fight.

So sometimes, even if you think you’re right, or you know, you’re right, the city fight you. I’m fighting the city in Iowa right now. On in filling a vacant lot. And somebody else already fought this fight. Fought the good fight for us in Des Moines, and he took it all the way to Supreme Court, and he won. And then the state legislature codified the decision. So it’s now state legislative approved law and a Supreme Court case law. It’s crystal clear. Now that doesn’t apply in Ohio or some other state. It’s, you know, pretty persuasive, pretty good arguments for it. But Ohio or North Dakota, they don’t have to listen to Iowa. Iowa is supposed to listen to Iowa. I’m dealing with an unincorporated County, in Iowa, we disagree with that rule. And I’m sitting here like, you can’t, you can’t, you know, there’s some restriction stuff and fire codes and other things. But they’re being obstinate. So now it’s like, do I have to sue you guys to prove I am right? So sometimes even you’re right, you know, it’s like the old saying, wrestling in the mud with a pig you lose either way. Because you end up getting all muddy and the pig likes it. So that’s what I feel like it is sometimes fighting the government is. Even if I win, it cost me time, energy, and money to do it. So you have to evaluate from a total, I call it cost-benefit analysis, which I jokingly say is the juice worth the squeeze. And if it ain’t, then sometimes you got to swallow your pride and move on. Which is not easy to do, frankly.

But an alternative method, back to my regularly scheduled programming, an alternative method to suing or caving in, is to compromise and request a conditional use permit and hope and argue that the restrictions are not going to be so onerous that it completely neuters your property rights. Frankly, if they tried too hard. You know, you could get back into that regulatory taking, but not as much as taking on a CUP as you have the variance. Because variance, it’s like a reasonable exception, a rezones, sometimes you can have, like I have a reasonable right to rezone and firstly the city imposes like an overlay zoning district and or changes the zoning code and now it’s so much more restrictive. Now I have a better saleable argument, colorable argument that this is a regulatory taking or at least a partial taking, and you need to have compensation for that. So I forgot to mention in the last episode, but that’s one of the reasons why cities grant some of these variances, is because they could grant me, I give the example on a 29th foot desired home placement from the perimeter in a 30 foot required setback. Realistically, the city isn’t that harmed by letting me get my way over one-foot exception, especially if I didn’t cause the problem. And it’s cheaper and easier for them to just cave and give us some of those rather than potentially have me the angry old guy that fights them and then make some sort of claim or suit and gets an award for taking. Anyway, the city sometimes does its own cost-benefit analysis. They just happen to be like the house at the casino and you got to fight them, but you know, they do some analysis as well.

So, anyway, those are the three items I really want to cover here in this little mini-series, rezoning, variance, and CUP.

 

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