Zoning - What Is A Conditional Use Permit And How Do You Get One?
Wednesday, July 22, 2015 at 11:49AM
Jack DiNicola

One of the principal purposes of a municipality’s zoning bylaw is to regulate the use of land in different districts of the city or town.  Zoning bylaws divide a municipality into zoning districts, which are often designated as either industrial, commercial or residential, and can be further subdivided.  The purpose of these divisions is to ensure that potentially disruptive or otherwise problematic property uses, such as a landfill or heavy manufacturing plant, are not located adjacent to residential or commercial areas.  This means that an individual that owns property in a single-family residential subdistrict cannot obtain a building permit to construct a fast food restaurant on his property, if the proposed “use” - a commercial restaurant - is prohibited in that subdistrict. 

Typical zoning bylaws have a use table that lists every possible lawful use of property within the city or town - uses such as a movie theater, warehouse, grocery store, auto repair shop, etc. For each use, the table lists whether it is “allowed”, “prohibited” or “conditional” in each district.  If the use is allowed, than a landowner can operate that use in that district; if it is prohibited he cannot (absent a zoning variance, which will be discussed in a separate article).  If the use is conditional, than the landowner must apply for a conditional use permit from the local Zoning Board of Appeal, and satisfy the Board’s requirements for the granting of a conditional use permit, sometimes referred to as a special permit.

Under Massachusetts law, a conditional use or special permit may only be issued for uses which are in harmony with the general purpose and intent of the city or town’s zoning bylaw.  In order to obtain the conditional use permit, the landowner will generally need to attend a public hearing before the local Zoning Board.  Each municipality’s zoning bylaw varies, but they generally require the local Board to consider issues such as the following:

-       Is the specific site an appropriate location for the proposed use?

-       Will the proposed use adversely affect the neighborhood?

-       Will the use create a hazard to vehicles or pedestrians?

-       Will the use create a nuisance?

-       Are there adequate and appropriate facilities provided for the proper operation of the use?

If the Zoning Board determines after taking testimony at the hearing that the proposed use is appropriate for the neighborhood, it will vote to grant the landowner a conditional use or special permit.  The Board can also attach conditions to its decision, known as provisos, which limit the proposed use in particular ways.  For example, if neighborhood residents at the hearing were concerned about late night noise from a proposed local theater, the Board could attach a condition that all entertainment at the theater must end at 10:00 p.m.

Because each zoning bylaw is different, with its own subtleties, it is often helpful to hire a zoning attorney to navigate the conditional use application process.  An experienced zoning attorney can also facilitate communications with local neighborhood groups and town administration.  If you are in need of a conditional use or special permit and have further questions or concerns, please contact Michael Brangwynne at mike.brangwynne@dsu-law.com or by telephone at (857) 250-0446.

Article originally appeared on DiNicola Seligson & Upton (http://dsu-law.com/).
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