January 22, 2013

County Can Set Reasonable Conditions Absent Express Language


Today, January 22, 2013, Division III of the Washington Court of Appeals issued a decision affirming the ability of the Benton County Board of Adjustment to set reasonable conditions on the use of land under a special use permit.  David and Charlotte Schlotfeldt wanted to open a recreational vehicle (“RV”) park on their property zoned light industrial.  However, the property is also surrounded by agriculturally zoned land.  In their application for a special use permit, the Schlotfeldts specified that the use would be limited to RVs, travel trailers, fifth wheels, and tents on 182 pads; but the application with the County did not specify the length of stay.

During the hearing on the application, neighbors became concerned that the RV park would become a permanent subdivision (or mobile home park) and would be inconsistent with the surrounding properties.  The Board of Adjustment set a condition of a length of stay of 180 days despite the lack of direction from the code specifying time limits.  The Schlotfeldts appealed the decision to the court under the Land Use Petition Act arguing that no authority exists for the length of stay condition.

In rejecting the Schlotfeldts’ arguments, the court recited Benton County Code 11.52.090(d) granting the authority to the Board of Adjustment to set conditions to protect surrounding properties.  In addition, the court noted that the application could be denied if no reasonable conditions were proposed.  There was testimony from the neighbors about concerns of the length of stay and the Board of Adjustment could therefore impose reasonable conditions to protect neighboring properties.  The court noted that special (conditional) use permits while permitted by code are “. . . subject to the right of the municipality to impose conditions or to disapprove.”1

The Land Use Petition Act also allows the recovery of attorneys fees when a party wins, so in addition to losing the case, the Schlotfeldts were required by the court to pay Benton County’s attorney fees.

The lesson here is that when proposing a conditional or special use, an applicant should anticipate concerns that neighbors may raise and attempt to mitigate such issues by proposing reasonable conditions based on surrounding land uses and the comprehensive plan.

1  Sunderland Family Treatment Servs. v. City of Pasco, 127 Wn.2d 782, 796, 902 P.2d 986 (1995) (quoting 3 Robert M. Anderson, American Law of Zoning § 21.06, at 643 (3d ed., 1986)).

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