CC WORKSESSION PACKET 06152021-JOINT WITH PLANNING COMMISSION

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(2) The City Council has specified all conditions which the City Council deems necessary to make the use compatible with other uses in the area; (3) The use will not be detrimental to the health, safety, or general welfare of persons residing or working in the vicinity or to the values of property in the vicinity; and (4) The use will provide a service or a facility which is in the interest of public convenience and will contribute to the general welfare. The subject property was bounded by multi-family residential on one side, and single family on another. The ordinance imposes certain additional setback requirements in such circumstances, but the applicant was able to comply with the specific zoning aspects of the code. It was item (3) from the list above that raised the primary issue, as its requirements are non-specific. The potentially vague nature of these requirements created an avenue for opponents of the project to raise a variety of potential issues. It should be noted that the requirements in item (3) are the general standards applied to most any zoning question – they reflect the powers of local government to ensure that land uses, while utilizing property in a legal manner, minimize infringement on the rights of neighboring landowners – often called “police powers”. In applying these standards, the City is constrained by a long history of legal challenges to decision-making on zoning questions, and specifically on Conditional Use Permit applications. The general rule is that a Conditional Use is one that is presumed to be allowed on land in the zoning district in which the CUP is proposed. Conditional uses are distinguished from Permitted Uses in that Permitted Uses are allowed by right, whereas Conditional Uses are expected to create additional impacts beyond those in the permitted class, and which require specific attention to avoid extraordinary negative impacts. In this regard, the City can add conditions to a proposed CUP to mitigate those anticipated impacts. The conditions are required to be relevant to specific aspects of the use, and cannot be unreasonably or arbitrarily assigned as a pretext in lieu of an out and out denial. If the applicant is able to demonstrate that they can meet those reasonable conditions identified by the City, then the City is usually bound to approve the CUP. The other aspect of CUP review is a burden on the opponents of a project. Opponents may raise questions and objections, but their objections must be based in fact for the City to use them as a basis for denial. They may not be speculative or mere opinion. The City may not base a denial on mere neighbor opposition, no matter how overwhelming. But if the project opponents can enunciate factual conditions that violate the elements of item (3) – and the applicant is unable or unwilling to mitigate those conditions - they may form the basis for a denial. There are a couple of other paths for the City to consider as a part of this discussion. One option is to list more specifically the various types of conditions that a CUP will be held to.