Government regulators.
I have a client that had me lay out a cemetery on a family ranch. I set the lot corners and corners for pathways and a parking area. Then set fence posts to mark the access road to the lots. Drew up the plat and gave a preliminary copy to the client to take to the county and see if there was any problem. If they are cool with it then I'd do three mylar signed copies he could drop them off and it's done. Usually takes a couple of weeks.
Get a call from the client, the county is requiring that they obtain a Conditional Use Permit before allowing the cemetery!!! What??
At least a three month process and an additional $500 in fees.
So I take the subdivision regulations down to my client (a civil engineer who does a lot of work with the county and DOT) and show him the exemption list to the subdivision law. The first use listed is cemeteries.
Why would you need a CUP for an exempted use. That's why it was exempted in the first place-you don't need to get one.
I told him to ask them if now when his office is working on a new ROW for the DOT does he need to advise the DOT that they need a CUP for each parcel since ROW takings are listed as an exemption just after cemeteries. Bet the DOT wouldn't be too happy with that.
Your Opponent
Me thinks the regulations aren't your opponent.
"Stupid" is your opponent. Good luck winning that fight.
Your Opponent
Maybe there's been some court ruling or something I'm unaware of that changed things, but, I sure don't think so.
I think someone at the county had a brain freeze.
I'm trying to stay out of it so I can keep the costs down a bit. The engineer can fill out the forms and do the leg work since it's for his parents he's more than happy too.
Thought it was a simple thing. Never seems to be anymore.
2 WORDS
REVENUE STREAM
2 MORE WORDS
GOOD LUCK.
Your Opponent
What they going to do if the CUP is violated, dig up the graves. Stupid and uninformed is the problem. Show them their own ordinance and exemption. Go to the county attorney if need be.
A CUP is require for a particular 'use' within a particular zone and has nothing to do with exemption from subdivision regulations. We're dealing with a similar issue on two separate projects.
Check the Zoning regulations, that is more than likely where you will find the 'uses' that require a CUP.
Subdivision law and Land Use Law are two different things.
Is a cemetery a permitted use? Are there rules and regulations to the size, location, buffer, distance to bodies of water, ect. These are land use regulations and unless your counties land use regulations exempt cemeteries you may need approval. Once you have that approval your client would be exempt from applying for subdivision approval based on the subdivision exemption.
Public roads are usually exempt from land use approvals similar to how your cemetery is exempt from subdivision approval.
My thoughts exactly. The agency isn't enforcing subdivision rules, they are enforcing zoning and use rules. Entirely separate beasts.
Well here it's uses that aren't allowed in the zoning, for instance a bed and breakfast in an Ag. zone. The county can give a CUP and allow it, put conditions on the use, or deny it.
The last one was a chicken processing plant in an Ag. zone. The county allowed it with a number of conditions.
But exempt uses are exempt.
One exemption is a judges ruling. Say a judge during a divorce splits up the property into two parcels which would normally be in violation of the subdivision regulations. And that has happened a number of times that I know of.
What do you think he would say (or do) if the planning board came to him and said he couldn't do it without getting a CUP first?
Is a cemetery a permitted use? Are there rules and regulations to the size, location, buffer, distance to bodies of water, ect. These are land use regulations and unless your counties land use regulations exempt cemeteries you may need approval
Yes cemeteries are an allowed use. Yes, I sent them a plat showing the size of lots, pathways, parking areas, location of it and any bodies of water (there are none), deeds for ownership and an easement to access the parcel.
If they needed anything additional relating to the plat, or ownership, I could understand it. I actually think I can just take the plat to the county clerk and file it and it's a done deal. There isn't really anything they can do since it's exempt.
I believe the clerk would file it and it's over, just like any other transaction. But I don't want to upset the planners they need something to do....I guess.
Around Here A Conditional Use Must Be Called Such In Ord.
A use that is excepted from the ordinance cannot be later called conditional.
Paul in PA
Around Here A Conditional Use Must Be Called Such In Ord.
> A use that is excepted from the ordinance cannot be later called conditional.
>
> Paul in PA
Exemption from subdivision process is not equivelant to exemption from land use review.
Land use and subdivision are 2 entirely separate regulatory activities. Moe, yourself and others are not grasping that legal concept.
Your Opponent
>
> I think someone at the county had a brain freeze.
To quote Si Robertson, it's a brain Sneeze, and it causes the brain to sneeze right out the nose!
Conditional Use Must Be Called Out In The Ordinance
Subdivision, Land Use or Subdivision and Land Use Ordinance must specify what is a conditional use and give some idea of the conditions required.
If the subdivision ordinance allows creating a lot for a cemetery, once that cemetery lot is created, then the cemetery is an allowable use. You do not get two bites at the apple.
The land use law may place conditions on the cemetery use such as a fence. However the land use bord has no basis for review unless such conditions are not met.
You don't go to the Zoning Board for a variance unless you cannot comply with the zoning requirements.
In many jurisdictions dual boards are being eliminated for a single board.
I have appeared in some jurisdictions where the certain small projects are not seen by the whole board. A subcommittee usually 3 board members and professional engineer review and make comments. Once a plan is satisfactory the subcommittee recommends it to the whole board for approval. That saves a lot of watsed time. In other jurisdictions professionals handle the whole deal.
The problem with citizen planning boards is that they take it personally. State required training for board members can help. Sometimes it is neccessary for a lawyer to get beyond the we don't approve and ask the question, "Does it meet the requirements of the Ordinance? Yes or No?" Engineer, "Yes", Board Attorney, "Yes", Board Vote, "We do not approve". Judge looks at the professional answers and it is all over.
Paul in PA
Around Here A Conditional Use Must Be Called Such In Ord.
No, I understand this issue quite well, this isn't my first cemetery, or second, or third, nor is it my first parcel that's exempt, not even in the first thousand.
The use (land use) is exempt.
Period!
By state law and Subdivision regulation.
They can't require conditional use permits for this use.
In fact, they can't stop my client from filing the plat, any more than the planning commision can review a deed or record of survey. Again, it's exempt from subdivision review and zoning (land use) regulations.
Around Here A Conditional Use Must Be Called Such In Ord.
A call to your local legislator might help. Better yet, if you can get one of their contributors to call them.
Conditional Use Must Be Called Out In The Ordinance
The problem with citizen planning boards is that they take it personally.
I think that is an excellent point.
After a board, commission, etc. has been slapped down by a writ of mandamus, they tend to realize their true function and their actual limitations.
I have found it ironic that those boards who are unwittingly caught up in a judicial process they do not anticipate and consider arbitrary got into the situation by their own arbitrary action/inaction.
Conditional Use Must Be Called Out In The Ordinance
>
> If the subdivision ordinance allows creating a lot for a cemetery, once that cemetery lot is created, then the cemetery is an allowable use. You do not get two bites at the apple.
>
> Paul in PA
Consider instead that they are 2 separate apples.
Because, by your line of thinking, once a residential subdivision is recorded, it would follow that one wouldn't need to then get building permits. Or once a commercial subdivision for a strip mall is approved, then one wouldn't need either building permits or use permits.
Doesn't work that way in some parts. Subdivision and land use law are very much separate. For example, I've seen where case law has upheld the premise that approval of a subdivision does not equate to the right of development. I.e., approved lots have been denied building permits and the courts have upheld the agency denial of permit issuance.
Just because the law or agency provides for right to divide, does not mean that division approval also includes the right of use.
Of course, your mileage may vary based on individual state law. I'm only speaking on behalf of the states I practice in.
Building Permits Are Issued After You Show Compliance
It is administrative, and you pay your fee. That is typical.
A "Conditional Use Permit" is a quasijudicial action and you pay lots of fees. It is overburdensome and more likely contrary to the intent of the laws. Approved once and done.
Paul in PA
I'm on the other side of our island, and here in Arizona we might do things a little different. We just bury em where we shoot em, and find it best not to ask permission.
A subdivision is not a use. What you do in a subdivision is. You get a conditional use to bury but not to subdivide. A cemetery with plots for sale is a subdivision, our State statutes allow you bury mom and pop out in the yard right next to Fido the family dog if you want to. It is a family plot for which you must record a map showing it and grant an easement to it. It is not a lot or a parcel of it's own, so if you sell the property you sell Fido and the folks with it. Hence the easement to the plot, which allows you to go back and get that diamond ring mom insisted on being buried with. But hey this is the West, and we just like doing things a little different here.
Not to bore anyone, but I spent 10 years on the board of adjustment for the city, and state law sets the criteria for how it operates. The County as well. A conditional use permit (CUP)is a use that is allowed within a zoning district if the zoning code says it's allowed with a CUP. If it is allowed you have to ask, and may get it with or without conditions or it may be denied. Permitted uses are allowed by right. A variance is requested when following the zoning code to the letter of the law would pose a hardship beyond your control and would deny you a right enjoyed by others in the same zoning district. It can not be a self imposed hardship.
If you have property that you want to subdivide and you present it for approval and have met every requirement of the subdivision code, there is no denying it because they just don't think they like you or it. If they do say no, then you and your attorney just hit the jackpot.
