Problem with zoning department

My son is opening a business and the conditional use permit had lapsed since it went out of business over five years ago. We don’t know anything about this process. He went in in February to apply for the CUP and now, almost seven months later they have just managed to send out a letter to the other agencies that might be involved to sign off on. What in the world could have taken this long? I’m even beginning to suspect that they were hoping for a bribe, since the building is going to be used for the same purpose and the laws have not changed as far as we know. If they had shouldn’t he have been told during this time? It all very, very suspicious. He has spent many thousands getting this up and running and if the business doesn’t open next month, without any cash flow he will be in trouble. I just can’t help feeling they are either totally incompetent or looking for money. The doctor next door told my son not to antagnize them or they would delay it further. He has been nothing but nice, and cooperative with them. My question is: if you have ever applied for a CUP and how long did it take (for an existing building with no change in use)? Any ideas about who to go to to have this investigated, e.g. the Attorney Generals office in the state?

Elmwood, AICP here.

A CUP can also be called a special use permit, depending on the locality. Here’s how I described it in a zoning code I wrote.

Some land uses may be appropriate in a certain zoning district or essential for providing a public service, but they require special attention to determine if they will have an adverse affect on the surrounding area. Uses permitted by special review are not uses by right, but uses that may be approved if the applicant demonstrates the proposed use is appropriate at a certain location.

Uses subject to a CUP or special use permit approval process are usually spelled out in a zoning code.

Again, the approval process can vary from place to place, but it usually involves the following steps:

  1. Pre-application meeting or conference
  2. Application
  3. Notification of property owners within a certain radius, and a legal notice placed in a local newspaper.
  4. Public hearing, usually a local planning commission. They may approve or deny the request. Sometimes, a planning commission acts only in an advisory role when it comes to special use permit approval; ultimately, the city council, town commission, or whatever it’s called will make the final judgement.

There should be a schedule of the approval process; application deadlines, legal notification dates, and so on. In the slowest agencies, it shouldn’t take more than 60 days from start to finish. If there’s a delay on your end, it’s because the application was probably incomplete, and they’re waiting for more information. If it’s on their end … well, I don’t know. I can’t speak for all zoning agencies.

As far as bribery goes … I’m not saying it doesn’t happen, but it’s extremely rare. I could kiss my career goodbye if I took a bribe.

I’m in commercial real estate and am sometimes in the thick of these sorts of applications. Based soley on what regional retail clients have told me who do business in NY State, NY State has a reputation for being as among the slowest and most bribe/contribution/juice friendly jusrisdictions is processing zoning apps.

Having said that it does take time to get this stuff done, (usualy 2-3 months in this area barring complications) and quite frankly your son probably should have taken care of this before investing thousands in the new business. I don’t know if the CUP in your locality goes before an open zoning hearing review board the way it does here for final approval, but I have seen more than one CUP get shredded at the hearings because one Zoning board member or another took exception to it. In many areas zoning boards are not filled with people who are particuarly friendly toward commercial development.

Having said that (per Elmwoods excellent explanation) 7 months is absolutely absurd to take in getting this processed unless growth is exploding and they are totally swamped.

IIRC, in Michigan an SUP can only lapse if the property owner intended to abandon the use. In other words, not running the business for a few years will not qualify, and the zoning authority must demonstrate an intention by the holder of the SUP to abandon the business. It is evidently a very, very difficult hurdle for the zoning authority to leap.

That said, the applicant needs to be involved. We get people who dissappear off the radar and we have no idea what’s going on. Or they don’t do what they need to do and don’t realize that we’re waiting on them. Some people just don’t get it. If the office is busy, the staff may simply not have the time to be more involved when applicants don’t know what’s going on.

I would suggest that your son talk to a specialist lawyer and a planner, and see what is up. It may be worth bringing a lawsuit if necessary, and it is always good to have a planner doing some of the work, especially if she’s a regular in the municipality.

It would depend where in New York State your son is operating, Suzeekay. Slowness and incompetence are not unknown in small-town operations – sometimes masking something that the Powers That Be don’t want to see happen. (Privately, I can tell you some stories on this that are not appropriate for the full board.)

If your son is going to be in serious financial difficulties as a result of the delay, and if he didn’t contribute to it (getting all the documentation required for conditional use review in place, for example – and I’m not saying he did, just ensuring you’re aware of that condition), he may want to talk to a friendly lawyer about an “Article 78 proceeding” – which essentially bawls out a government agency for failing to do what they are legally required to do, compels them to do it forthwith, and can include damages when actual verifiable losses can be shown as a result of their sloth. (Article 78 is the relevant article of the Civil Practice Law and Rules covering such proceedings – and this should have all kinds of disclaimers about me not being a lawyer, this not being legal advice, and so on. But that is one of the primary things that an Article 78 proceeding is used for – when a government agency is supposed to do something within a given time frame and does not do so, and someone suffers “injury” in the legal sense as a result.)

Bribery and such are extremely rare in the city and town planning departments of the state – but being dilatory on something that somebody doesn’t want to see happen is not.

All this is based on the presumption that you’re outside New York City proper – which is its own private world. And to avoid exposing the Chicago Reader and myself to lawsuit, I won’t speak of planning and zoning within the Big Apple.

We get abusively FOIA’ed so that we can’t get anything done. Except for me. With me, it’s just garden-variety incompetence.