27. Conditional Use
The P's, C’s and ACUP’s
The Zoning Code describes what types of uses and how densely you can build on a particular lot. Some uses are permitted (P), while others are not, and then there is a third category: conditional use.
This post is a deep dive into a few terms used in the Kitsap County Municipal Code Chapter 17 :
Administrative Conditional Use Permit (ACUP)
Hearing Examiner Conditional Use Permit (C)
Municipal Code
To find more detail about a specific code, you look up the municipal code. The Kitsap County code is here, and you can dig into Chapter 17 to learn more about zoning.
The conditional use terms are defined in Chapter 17.410 Allowed Uses
17.410.010 Categories of uses established.
B. Administrative Conditional Use. Land uses which may be permitted within a zoning designation following review by the director to establish conditions mitigating impacts of the use and to ensure compatibility with other uses in the designation.
C. Hearing Examiner Conditional Use. Land uses with special characteristics that may not generally be appropriate within a zoning designation, but may be permitted subject to review by the hearing examiner to establish conditions to protect public health, safety and welfare.
So what’s the difference between the director and the hearing examiner?
My first stop was to ask ChatGPT. Here is what the bot said:
Director:
The director is often a staff member within a municipal planning or zoning department.
This individual is responsible for overseeing and managing the day-to-day operations of the department.
The director may have the authority to make certain administrative decisions, such as reviewing and approving certain types of permits or applications.
Directors are usually involved in the implementation of zoning regulations, land use planning, and code enforcement.
Hearing Examiner:
A hearing examiner is an impartial and independent individual appointed by the local government to preside over quasi-judicial hearings related to land use and zoning issues.
Hearing examiners typically conduct public hearings on specific matters, such as zoning variances, conditional use permits, or appeals of administrative decisions.
Their role is to gather evidence, listen to testimony from involved parties, and make decisions based on the applicable laws and regulations.
Unlike a director, a hearing examiner's decisions are often final and subject to limited appeal.
OK, interesting, so in short it seems like getting approval for an ACUP (Administrative Conditional Use) should be easier, and less costly, than getting approval for a C (Hearing Examiner Conditional Use).
Let’s look back in the code, this time in Chapter 17.550 Hearing Examiner Conditional Use Permit.
17.550.030 Decision criteria – Conditional use permit.
A. The hearing examiner may approve, approve with conditions, or deny a hearing examiner conditional use permit. Approval or approval with conditions may be granted only when all the following criteria are met:
1. The proposal is consistent with the Comprehensive Plan;
2. The proposal complies with applicable requirements of this title;
3. The proposal will not be materially detrimental to existing or future uses or property in the immediate vicinity; and
4. The proposal is compatible with and incorporates specific features, conditions, or revisions that ensure it responds appropriately to the existing character, appearance, quality or development, and physical characteristics of the subject property and the immediate vicinity.
What a pandora’s box! Now I just need to find out what is the Comprehensive Plan?
Well, what about the Administrative Conditional sue, let’s see what the code says for that one. Looks like it is one chapter earlier in Chapter 17.450 Administrative Conditional Use Permit.
17.540.040 Decision criteria – Administrative conditional use permits.
A. The department may approve, approve with conditions, or deny an administrative conditional use permit. Approval or approval with conditions may be granted only when all the following criteria are met:
1. The proposal is consistent with the Comprehensive Plan;
2. The proposal complies with applicable requirements for the use set forth in this code;
3. The proposal is not materially detrimental to existing or future uses or property in the immediate vicinity; and
4. The proposal is compatible with and incorporates specific features, conditions, or revisions that ensure it responds appropriately to the existing character, appearance, quality or development, and physical characteristics of the subject property and the immediate vicinity.
Hold on — doesn’t that sounds awfully familiar? It seems the four conditions of the administrative conditional use permit are the same as the hearing examiner one with the exception of point 2. I don’t see a clear difference between the two.
No doubt there is much more listed in the code that differentiates the two pathways, but it feels pretty buried under legalese. Here’s one I found: third party review, which applies to the Hearing Examiner Conditional Use. This sounds pretty expensive.
17.550.025 Third party review.
The director may require a third party review from a technical expert to provide information necessary to prepare a staff recommendation to the hearing examiner. The expert will be chosen from a list of prequalified experts prepared and kept current by an annual solicitation by the department. The applicant shall select the expert from a list of three names selected by the director from the larger prequalified list. The expert will be contracted to the county and report their findings to the director and the applicant. The cost of such report will be the responsibility of the applicant.
When to do C versus ACUP?
This one has a relatively easy answer. It depends on what you are building and which zone you are in. Look up your use condition in the Kitsap County Use Tables.
This was an interesting exercise for me, but I acknowledge, another dry read for you. The more questions I answer, to more questions I have. My next step is to look up the Comprehensive Plan.