When conditional use permits fail

Many residents of one Ogden neighborhood are feeling cheated. When they initially heard that the old blighted building down the street was going to be remodeled into a new senior citizen community they welcomed the developer with open arms. Their only concern was the large sycamore trees on the property. These trees were a defining characteristic of the neighborhood, and local citizens wanted them to stay. The developer was very accommodating, they even signed a conditional use permit promising to save as many trees as were possible.

That was not how things turned out. “I was livid when I got home and saw no trees standing,” local resident Jim Larkin stated, saying “if he’d known how it was going to play out, he would have chained his vehicles to some of the stately arbors to try to save them” (Mckitrick, 2013). Many others in the neighborhood were also outraged.

The developer said it did everything within its power to keep the trees. The trees roots and branches had grown in such a manner that large cuts had to be made in order for the sidewalks to comply with federal disability regulations. These deep cuts compromised the trees health and they were therefore forced to take them out. The developer replaced the trees with 50 new trees and over 240 plants and bushes, and many in the neighborhood say it looks nice but it isn’t what they were promised.

Trees line the new Mt. Ogden Senior Housing facility Friday, October 11, 2013 in Ogden, Utah. (NICK SHORT/Standard-Examiner)

Trees line the new Mt. Ogden Senior Housing facility Friday, October 11, 2013 in Ogden, Utah. (NICK SHORT/Standard-Examiner) Accessed on http://www.standard.net/stories/2013/10/11/new-landscaping-added-ogden-neighborhood-upset-about-lost-trees on 10/14/13

The developer asked for the conditional use agreement to be revised after the trees had been taken out. The city responded by requiring them to plant 50 trees with a 5 to 6 inch width, costing an additional $78,000 (Mckitrick,2013). Many believe this is nothing more than a band aid. This story highlights problems that can come from overly ambiguous conditional use permits. The developer was required to attempt to save the trees, but were not given a specific number of how many. This created a situation where it was easier to ask for forgiveness than permission.

Conditional use agreements can be a powerful asset for communities looking to have some influence on how their communities are developed. In this case a conditional use permit was required to renovate a 1.8 acre lot that was previously zoned as commercial space into a senior citizen facility. The facility was not as much the concern of the neighborhood as was keeping the trees that made their neighborhood unique.

Unfortunately, this is not unique problem with conditional use permits. In some cases conditional use permits are given that do not even have conditions attached to them, or conditions that are so vague they are unenforceable. This allows developers to tip toe around certain zoning regulations. Conditional use permits often fall prey to land use and property rights politics. It is tempting to make them vague so as to appease developers who are often seen to be improving areas. Not making the desires of the city clear defeats their purpose.

Even if the city does lay out specific conditions it is often difficult to enforce if these conditions are violated. What exactly could the city of Ogden do after the trees are ripped out? Even though after the developer ripped out the trees they were required to plant extra trees these trees were nowhere near the same size as the trees that were torn out. It would take decades for the neighborhood to look the same. To put it simply conditional use permits are useless or even detrimental if they are not used for their intended purpose and executed as such.

 

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One thought on “When conditional use permits fail

  1. Interesting post. Why did the developer ask for the conditional use permit to be revised after the fact since he “tried to save as many trees as possible”? What other options did the City consider?

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