This content conveys general information. Do not use it as a substitute for legal advice. Any attorney general opinions cited are available from the League’s Research staff.
A conditional use is a land use the city permits in a zoning district only when the applicant meets certain standards. The zoning ordinance typically sets out:
- General standards that apply to all conditional uses, and
- Specific standards that apply to a particular conditional use in a given zoning district.
A use is typically conditional because of:
- Hazards inherent in the use itself, or
- Special problems that its proposed location may present.
For example, cities often designate uses that generate traffic (such as family child care, service stations, convenience stores, or drive-thrus) as conditional uses.
Conditional use permit
A conditional use permit (CUP) is a document. A city issues a permit to allow a conditional use when the applicant meets the general and specific ordinance standards. The permit allows the use only if the applicant addresses the standards set forth in the zoning ordinance. State law authorizes conditional use permits (Minn. Stat. § 462.3595).
General CUP standards
A zoning ordinance typically details general standards that apply to all conditional uses. For example, an ordinance might require all conditional uses to conform to the comprehensive land use plan of the community, be compatible with adjoining properties, and be served by adequate roads and public utilities.
Specific CUP standards
Many zoning ordinances will also set out specific standards for a particular conditional use, such as businesses operating a drive-thru. Specific standards often address off-street parking and loading areas, landscaping and site plan, and hours of business operation.
Granting conditional use permits
Generally, cities may only grant CUPs for uses specifically listed in the zoning ordinance as conditional uses in a particular zoning district.
If a use is not designated as a conditional use in a zoning district, then arguably the city may not issue a CUP without first amending the zoning ordinance to provide for the conditional use. This would, of course, allow other applicants to apply for a conditional use permit under the same standards.
Who grants a CUP
Planning commissions often first consider the CUP application and make recommendations to the city council. State statute allows the city council to assign its CUP approval to another authority. Some cities designate the planning commission as the approving body but typically the city council approves a CUP.
If a proposed conditional use satisfies both the general and specific standards set out in the zoning ordinance, the applicant is entitled to the conditional use permit. If the applicant meets all the ordinance standards, the city usually has no legal basis to deny the CUP.
A written request for a CUP is subject to Minnesota’s 60-day rule. It must be approved or denied within 60 days of the time it is submitted to the city. A city may extend the time period for an additional 60 days, but only if it does so in writing before expiration of the initial 60-day period. Under the 60-day rule, failure to approve or deny a request within the statutory time period is considered an approval (Minn. Stat. § 15.99).
Other conditions on permits
A city may attach reasonable conditions relating to the ordinance standards to a CUP based upon factual evidence contained in public record. For example, if a zoning ordinance says a conditional use should not have adverse visual or noise impacts on any adjacent property, a city might require specific screening and landscaping conditions to address any potential impacts established in the record.
Time limits not permitted
State statute says a CUP remains in effect as long as the conditions agreed upon are observed (Minn. Stat. § 462.3595, subd. 3).The attorney general says time limits, such as sunset provisions or automatic annual review, are not consistent with state law, explaining that cities may not enact or enforce provisions that allow a city to terminate CUPs without regard to whether the conditions agreed upon are observed (A.G. Op. 59-A-32 (February 27, 1990)).
If a city wishes to place time constraints on particular uses, the appropriate zoning tool is an interim use permit, not a conditional use permit. State law authorizes interim use permits for:
- A temporary use of property until a particular date;
- Until the occurrence of a particular event; or
- Until zoning regulations no longer permit it (Stat. § 462.3597).
The city may allow a proposed conditional use only after a statutorily required public hearing (Minn. Stat. § 462.3595, subd. 2). The city must provide published notice of the time, place, and purpose of the hearing on a proposed CUP at least 10 days prior to the day of the hearing. If the decision affects an area of five acres or less, the city may need to mail notice to property owners within a 350-foot radius of the land in question. The purpose of the public hearing is to help develop a factual record as to whether the applicant meets the relevant ordinance standards such that the CUP should be granted (Minn. Stat. § 462.357, subd. 3).
City role in hearing
A city exercises “quasi-judicial” authority when considering a CUP application. This means the city’s role is limited to applying the standards in the ordinance to the facts presented by the application. The city acts like a judge in evaluating the facts against the standards. If the applicant meets the standards, then the CUP should be granted.
In contrast, when the city designates certain uses as conditional in the zoning ordinance the city is exercising “legislative” authority and has much broader discretion.
Role of neighborhood opinion
Neighborhood opinion alone is not a valid basis for granting or denying a CUP. While city officials may feel their decision should reflect the overall preferences of residents, their task is limited to evaluating how the CUP application meets the ordinance standards. Residents can often provide important facts to help the city address whether the application meets the standards, but unsubstantiated opinions and reactions to an application are not a legitimate basis for a CUP decision. If neighborhood opinion serves as the sole basis of the decision, it could be overturned by a court if challenged.
Documentation of hearing
Whatever its decision, a city should create a record that will support it. If a city denies a CUP application, the 60-day rule requires the reasons for the denial be put in writing. Even if a city approves a CUP, a written statement explaining the decision is advisable. The written statement should address the general and specific ordinance standards and explain the relevant facts and conclusions.
Conditional use permit after issuance
A conditional use permit is a property right that “runs with the land.” That is, it attaches to and benefits the land and is not limited to a particular landowner (Minn. Stat. § 462.3595, subd. 3). State statute requires CUPs be recorded with the county recorder’s office (Minn. Stat. § 462.3595, subd. 4). When the property is sold, the new landowner will have the continued right to the CUP so long as the conditions are met.
A city can revoke a conditional use permit if there is not substantial compliance with conditions. The revocation must be based upon factual evidence, after appropriate notice and hearing. Because a CUP is a property right, a city should work closely with the city attorney if considering a CUP revocation.