Articles and Publications

Nov 07, 2019

Navigating the special use permit process

Do you or your business require a special use permit? A special use permit is a type of permit which allows for a property to be utilized in a way that deviates from the current accepted or zoned use associated with the district in which the property lies. While zoning and use regulations are designed to ensure orderly and compatible development within a municipality, it is undeniable that a rigid “one size fits all” approach to development is not always the best policy. For example, if a once bustling commercial corridor of a village has been quickly surrounded by quaint residential development, it may be desirable to allow special uses to integrate different businesses or facilities that cater to residential neighborhoods in a way that fosters growth and harmony between the different zones.

After identifying the land and its intended use, the process to obtain a special use permit generally involves the following steps:

1. Consult with your municipality’s planning, zoning or building department to determine the current permitted uses, zoning or ordinances that will impact the intended use.

2. Develop a cognizable plan as to how the property will be used.

o   Be diligent about the details when crafting a plan and be prepared to answer any questions that may arise. For example, what hours will the building be used, how much vehicular or pedestrian traffic will it generate, is there enough parking and will there be noise concerns to neighbors?

o   Consider and incorporate the following “LaSalle factors” into the plan:

  • compatibility of the proposed use and the existing use of nearby properties;
  • the extent to which property values of the subject property are diminished by the existing zoning restrictions (i.e., what is the harm if there is no special use?);
  • the extent to which the proposed amendment promotes the public health, safety and welfare of the community;
  • the benefit to the public in relation to the hardship on the applicant;
  • the suitability of the subject property for the current uses;
  • the length of time that the subject property has been vacant with the current use;
  • the consistency of the proposed use with the comprehensive plan of the community; and
  • the benefit of the proposed use to the community at large.

3. Collect and submit needed documents including applications, leases, business plans, traffic studies, fees or anything else required by the municipality.

4. Once submitted and preliminary approval is obtained from the planning or zoning administrator, a hearing before the planning commission will be scheduled.

o   A key part of this step required by law is publication of notice. Notice must generally be given in a way to allow all members of the community to voice their opinions on the proposed use. Strictly following notice standards is crucial and failing to provide adequate notice can negatively impact the plans for the property.

5. The hearing before the planning commission is the first opportunity to formally present an application and “make the case” for a special use. This is where commissioners and members of the public will voice their opinions about the proposed special use.

6. If approved, the planning commission will establish the findings and, if necessary, may refer those findings to the village board or council for a second hearing. If a village board hearing is held, it operates in very similar fashion to the planning commission hearing and may address similar concerns.

7. Once granted, a special use permit can carry stipulations, time restrictions and may vest in the property or the applicant. After final approval, however, a special use is a protectable interest that entitles the holder to due process before the interest can be substantially altered or revoked.

Because each plan is different and navigating the community, legal and political nuances can be difficult, it is advisable to consult an attorney prior to engaging in the special use permit process. If you are interested in learning more about the special use permits or have any questions about navigating real estate-related matters, contact one of Chuhak & Tecson’s experienced Real Estate attorneys.

This Chuhak & Tecson, P.C. communication is intended only to provide information regarding developments in the law and information of general interest. It is not intended to constitute advice regarding legal problems and should not be relied upon as such.

Client alert co-authored by: Kevin Coyne, Principal and Zachary Beaver, Associate