Conditional Use Permits

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Conditional use permits (under Tennessee law, these are also known as special exceptions) are issued by the Board of Zoning Appeals. They are, however, quite different from variances. Whereas variances relax a particular zoning requirement because of some unique physical feature of the property, and cannot therefore ever be foreseen as necessary, a conditional use permit is a use of property which was expressly anticipated by the local legislative body, and planned for by listing a set of conditions which the applicant must satisfy in order to qualify for the permit.

As a result, the applicant is presumtively entitled to the permit assuming that proof is tendered that all the conditions have been met. I am often asked, what then is the purpose of the hearing before the zoning board? That's easy: it is to contest the proof proffered by the applicant! The neighbors, under Tennessee law, should review the section of the zoning ordinance under which the application is made, and offer proof that the applicant does not comply with the requirements.

If the board has proof on both sides of the issue, then it has great discretion to grant or deny the permit. Virtually no court in Tenness will overturn the board given that there was proof on both sides. However, the neighbors rarely put on such proof. As a result, the applicant, who many times has a lawyer, puts on ample proof that the requirements are all met; the board has little choice but to grant the conditional use because there is no indication that it should not be granted. I hasten to add that if the applicant messes up, and fails to put on proof of each an every condition necessary to obtain the permit, then the Board has no choice but to deny the permit. It is more often the former that occurs, rather than the latter.

Another way of saying the same thing is that the board has no discretion to deny the permit in the absence of a reason to do so. It cannot rely on some inherent power to deny a permit which is otherwise properly supported. This is frequently misunderstood: I am not saying that the board cannot turn down an applicant; only that it must have a reason to do so.

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