New Business Property? Beware the Unnamed Conditional Use
There are a wide variety of questions that should be answered any time an owner acquires a new property for her business. Some are more obvious than others. Here is one more item to add to the new or relocated business "checklist."
Many new businesses require conditional use permits, which are required for uses that are allowed in a particular zone but require additional review to ensure the use can be "conditioned" to peaceably coexist with its neighbors.
Local governments list conditional uses in their zoning codes. While these lists are often extensive, it is difficult--if not impossible--for a zoning code to anticipate all possible uses. As a result, many codes include a "catch-all" provision that allows a city (typically through a planning director) to categorize new or unlisted uses as conditional. For example, Boise City allows its planning director to "provide an interpretation" of "new or unlisted" uses and determine "the zoning classification into which such use should be placed." (Boise City Code 11.06.01.4). Eagle City Code Section 8-2-3, Meridian City Code Section 11-1-5, Twin Falls City Code Section 10-4-1.2, and Pocatello City Code Section 11.1.160 contain similar provisions.
A 2010 Idaho Supreme Court decision may be a trap for the unwary business owner seeking a conditional use permit. In Gardiner v. Boundary County Board of County Commissioners, 148 Idaho 764 (2010), the Supreme Court struck a Boundary County zoning ordinance that allowed uses not identified in the ordinance to be considered as a conditional use. Although the Boundary County language is perhaps more permissive than the codes cited above, the effect is the same. Many zoning codes must be carefully considered post-Gardiner to the extent that they allow an unlisted or unspecified use to be eligible for review as a conditional use permit.
Although there have been rumors of a legislative "fix" for Gardiner since it was handed down, it remains the law in Idaho. For new business owners, special care should be given to make sure a new business use is specifically identified as a conditional (or outright permitted) use in a zoning ordinance before going forward. If not specifically identified, consult with staff and, ultimately, an attorney to determine the best procedural route forward. Otherwise, you risk giving an easy argument to a disgruntled neighbor who might wish to challenge the conditional use permit for your new business.