The Nature of Zoning ChangesProcedure,Vesting and Standing

The Mechanics of Land Use Procedure – J Keller 2006-07

Basic Procedure

• A Zoning Ordinance

– Like any other ordinance– A number of appointed groups can

advise– But only the governing body can make

law or change law– The zoning ordinance is composed of

the text and the zoning map

The Zoning Text or the Regulations

• The “Text” or the Regulations

– The Regulations are composed of several distinct parts

• The Authority• Interpretations• The Creation of the Zones and Districts• The permitted uses• Uses permitted by limitation or variance• The District Regulations• The textual definitions

Zoning Text - Continued

• Amendments to the text are not a proposed “change in zoning”

• Amendments are a proposal to amend the terms, definitions, or actual district regulations

• By tradition, an amendment to the regulations can be initiated by the Planning Commission or the Governing Body – not the public

• The public may request a change but cannot actually (formally) initiate the change itself

Example – Textual Change

All building exteriors in the PC1 “Planned Commercial” District shall be either earth tone or a variation or white to beige color

Amendment – Meeting Common Arch. Standards

Longaberger Basket Building – Corp. Headquarters in Newark, Ohio

Map Amendment

• Amendment to the Zoning Map

– Typically called a request for a zoning change

– Also called map amendment– By far the most common type of action

that comes before the Planning Commission

                                                                                

The Zoning Map

Rural

ConservationSuburban

Residential

Village

Commercial

Rural Residential

Nature of Zoning Change

• By long tradition if an action is legislative in nature, that is applying a policy community wide, there is a full presumption of legislative immunity. The courts will not inquire into the reasoning behind the decision. The full burden of proof falls on the party challenging the action.

Legislative Actions

• There is no disproportionate action in legislative actions

• The law impacts us all in the same manner• The great deference given to legislative

actions stems from its high visibility and widely felt impact.

• The theory is that appropriate remedies can be had at the polls.

• Fair dealings and consistent treatment are often sacrificed in the procedural informality that accompanies legislative actions

Alternative View

• The alternative view is that zoning changes are marked as administrative or quasi judicial actions.

• These actions are presumed to occur when a hearing body proposes to adopt some rule of policy or change when two or more parties are in contention

• An action is quasi- judicial if the process is bound to result in a decision

What is Quasi Judicial?

• An action that involves the application of a rule to a specific factual setting

• A court-like action that requires a special set of due process rules

• The very basis of this mode of action is that there are parties in contention and that the party bringing the change fully bears the burden of justifying the need for the change

Contrasts In Change

• Legislative– Indeterminate and discursive– Not bound to result in a decision– Free choice among competing alternatives– Serves a general public interest– Actions may be based on a bias for an initial

political philosophy

Contrasts

• Quasi-Judicial– Specific parties in contention– Bound to result in a decision– Best choices among competing alternatives– Loss to the individual can be great while the gain to

the public is small– Order and fairness– Actions are not based on bias or initial positions– Each action decided on its merits (facts)

More Ugly Building Awards

The Watershed Case

• Fasano v Bd. of County Comm. Of Washington County 1972

• The Supreme Court of Oregon discusses two essential questions:– by what standards does a county

commission exercise its authority in zoning matters;

– who has the burden of meeting those standards when a request for change of zone is made; and what is the scope of court review of such actions?

The Background

• A.G.S. Development Company is the owner of 32 acres zoned Residential

• They apply for a zone change to P-R (Planned Residential), which allows for the construction of a mobile home park

• The change failed to receive a majority vote of the Planning Commission. The Board of County Commissioners approved the change and found, among other matters, that the change allows for "increased densities and different typesof housing to meet the needs of urbanization.

The Controversy

• The plaintiffs contend that the Board of County Commissioners should be held to a certain level of proof in making this change – especially because the change is not one mentioned or contemplated in the comprehensive plan for the area

The County’s Position

• Suck it up and get over it• The County argues that (1) the action of the

county commissioners approving the change is presumptively valid, requiring plaintiffs to show that the commissioners acted arbitrarily in approving the zone change; (2) it was not necessary to show a change of conditions in the area before a zone change could be accomplished

Guess Who Got Involved

Washington’s Supreme Court’s Initial Reasoning

• At this juncture we feel we would be ignoring reality to rigidly view all zoning decisions by local governing bodies as legislative acts to be accorded a full presumption of validity and shielded from less than constitutional scrutiny by the theory of separation of powers.

• Local and small decision groups are simply not the equivalent in all respects of state and national legislatures. There is a growing judicial recognition of this fact of life

A New Basis

• It is not a part of the legislative function to grant permits, make special exceptions, or decide particular cases.

• Such activities are not legislative but administrative, quasi-judicial, or judicial in character.

• To place them in the hands of legislative bodies, whose acts as such are not judicially reviewable, is to open the door completely to arbitrary government

The Test

• Our test involves the determination of whether zoning action produces a general rule or policy which is applicable to an open class of individuals, interest, or situations, or whether it entails the application of a general rule or policy to specific individuals, interests, or situations.

• If the former determination is satisfied, there is legislative action; if the latter determination is satisfied, the action is judicial.

The Formula

• We believe that the state legislature has conditioned the county's power to zone upon the prerequisite that the zoning must attempt to further the general welfare of the community. In other words, it must be proved that the change is needed and in conformance with a reasonable set of standards

General Welfare

The Steps

• In proving that the change is in conformance with the comprehensive plan in this case, the proof, at a minimum, should show (1) there is a public need for a change of the kind in question, and (2) that need will be best served by changing the classification of the particular piece of property in question as compared with other available property

The Threshold

• Because the action of the commission in this instance is an exercise of judicial authority, the burden of proof should be placed, as is usual in judicial proceedings, upon the one seeking change.

• The more drastic the change, the greater will be the burden of showing that it is in conformance with the comprehensive plan as implemented by the ordinance, that there is a public need for the kind of change in question, and that the need is best met by the proposal under consideration.

The Burden

• As the degree of change increases, the burden of showing that the potential impact upon the area in question was carefully considered and weighed will also increase.

• If other areas have previously been designated for the particular type of development, it must be shown why it is necessary to introduce it into an area not previously contemplated and why the property owners there should bear the burden of the departure.

Baseline Requirements

• A plan and a set of regulations in conformance to the plan

• Notice and the right to be heard • A fair hearing • Right to counsel • Right to present a rebut evidence • Creation of a record contains facts, not

opinions • A decision based on the record • Freedom from ex parte discussion

Golden – The View

The Golden Factors

• (1) the character of the neighborhood; • (2) the zoning uses of nearby properties; • (3) the suitability of the property for the uses to which it is

restricted; • (4) the extent to which the change will detrimentally affect

nearby property; • (5) the length of time the property has been vacant as zoned; • (6) the gain to the public health, safety, and welfare by the

possible diminution in value of the developer's property as compared to the hardship imposed on the individual landowners;

• (7) the recommendations of a permanent or professional planning staff;

• (8) the conformance of the requested change to the city's master or comprehensive plan. 224 Kan. at 598.

• These are suggested factors only. Other factors may be important in an individual case.

Golden - The Logo

Present Site Use

Golden – Guess What Came

Follow Up on Golden V Overland ParkM. B. Landau v Overland Park or “How Much is Enough”

Background

• Landau is a developer• He purchases a tract of 200 acres in 1982 for $2.5

million in Overland Park• The tract is zoned single family residential at the time

of the purchase• Landau applied to rezone a tract of 40 acres in the

Northeast corner to light commercial• The land on the east side of Landau’s tract (across

Antioch Rd.) is zoned commercial• Landau wants his commercial area to buffer the

remainder of the tract

Site Map

Low to medium density residential Commercial

Development127th Street

Commercial and Light Industrial

137 acres of single family residential

20 acres of medium density residential

Disputed 40 acres

An

tioch

Ro

ad

Further Development Plan

• The remainder of Landau’s tract is scheduled for:

– 137 acres single family development in the $300,000 to $450,000 range

– 20 acres medium density development in town houses

• At the time of application Overland Park and others were developing the Highway 150 Corridor Plan so Landau’s application was put “on hold” for more than a year

New Plan

• Landau’s application was taken up again in 1986

– The Northeast and Southeast corners along Antioch and 127 were zoned for commercial

– Antioch Rd. was considered the dividing line between residential and commercial

– The planning commission denies the application under the theory that commercial development West of Antioch would cause a domino effect

The Site Map Again

Low to medium density residential Commercial

Development127th Street

Commercial and Light Industrial

137 acres of single family residential

20 acres of medium density residential

Disputed 40 acres

An

tioch

Ro

ad

Landau Replies

• Landau appeals to the City

– Landau claims that the southwest corner of the tract is composed of land that is unsuitable for residential development

– The land slopes too quickly– Not possible to screen from adjacent

commercial across Antioch Rd.

City Replies Back

• Extending the Multi-Family designation to Antioch would be appropriate, the commercial use proposed is inappropriate at this location;

•  The proposed commercial zoning is at variance with the Master Plan and the future land use plan portion of the K-150 Corridor Study;

• The proposed commercial zoning would be in conflict with the Master Plan

• Adequate commercial developments are planned or proposed within approximately a one-mile radius of the site that should satisfy the market needs of the future population of this area.

Legal Action

• Landau files suit and says: No! No! you did not use the 7 Golden Factors to make this decision

• The Kansas Supreme Court says that the 7 factors listed in the Golden Case were advisory

• The Court says that what they were trying to do is to force the Plan Commission/Governing Body to create a record and finding of fact that laid a basis for their decision. A “yes” or “no” vote simply will not do

Findings

• The Court reminds Landau that the burden of proof for justifying the change rests on the applicant – and – that as the magnitude of the changes increases, so does the burden on the developer

• The court, just to make a point, uses the Golden v Overland Park factors and applies them to Landau

• The court holds that the rezoning was proper, the reasons rational, and the decision in “sync” with the existing facts

Insert Case

• Johnson County Board of Commissioners v City of Olathe

• The City had substantial information before it and considered the possible uses for the Trust property, as well as the changing nature of the surrounding area. Although the land appears to be well-suited for agricultural use, it is located in a changing area where residential density is increasing. It is reasonable for the City to plan for the encroaching change in this area. The decision is not so wide of the mark that it lies outside the realm of fair debate

Wide of the Mark

Even Wider

Zoning At The PollsReferenda as a Method of Zoning Change

City of Eastlake, Ohio v Forest City

• Forest City Enterprises, Inc., Respondent, a real estate developer, acquired an eight-acre parcel of real estate in Eastlake zoned for "light industrial" uses at the time of purchase.

In the Beginning

In May 1971, Forest City applied to the City Planning In May 1971, Forest City applied to the City Planning Commission for a zoning change to permit construction of a Commission for a zoning change to permit construction of a multifamily, high-rise apartment building. The Planning multifamily, high-rise apartment building. The Planning Commission recommended the proposed change to the City Commission recommended the proposed change to the City CouncilCouncil

Procedure

• Meanwhile the voters of Eastlake amend the city charter to require that any changes in land use agreed to by the Council be approved by a 55% vote in a referendum. – The City Council approved the Planning

Commission's recommendation for changing the property to permit the proposed project. Forest City applied to the Planning Commission for "parking and yard" approval for the proposed building. The Commission rejected the application, on the grounds that the City Council's rezoning action had not yet been submitted to the voters for ratification.

Challenge

• Forest City then filed an action in state court, seeking a judgment declaring the charter provision invalid as an unconstitutional delegation of legislative power to the people. While the case was pending, the City Council's action was submitted to a referendum, but the proposed zoning change was not approved by the requisite 55% margin. Following the election, the district court and the Ohio Court of Appeals sustained the charter provision.

Analysis

• The question in this case is whether a city charter provision requiring proposed land use changes to be ratified by 55% of the votes cast violates the due process rights of a landowner who applies for a zoning change

• The Ohio Supreme Court reversed. Concluding that enactment of zoning and rezoning provisions is a legislative function, the court held that a popular referendum requirement, lacking standards to guide the decision of the voters, permitted the police power to be exercised in a standard less, hence arbitrary and capricious manner

The U.S. Supreme Court

• The U.S. Supreme Court concluded that a referendum procedure, is a classic demonstration of "devotion to democracy.

• As a basic instrument of democratic government, the referendum process does not, in itself, violate the Due Process Clause of the Fourteenth Amendment when applied to a rezoning ordinance. Since the rezoning decision in this case was properly reserved to the people of Eastlake under the Ohio Constitution, the Ohio Supreme Court was wrong in holding invalid the charter amendment permitting the voters to decide whether the zoned use of respondent's property could be altered.

Insert Kaiser Kai Development v. City and County of Honolulu

70 Hawaii 480 - 1989

Is the enactment of amendments to a county's detailed land use development plan and zoning maps through the initiative process inconsistent with the requirement that land use and zoningdecisions be made in accordance with, and with the purpose of, implementing a long range plan invalid?

Background

• Bishop Estate is the owner of a tract of land divided into two segments, which are designated as Golf Course 5 and Golf Course 6, in the Kalama Valley area in East Honolulu.

• Kaiser Hawaii Kai Development Company (Kaiser) has the legal right to possess and develop this land. This

land has been zoned for residential use since 1954.

• A portion of the land falls within the Shoreline Management Area& Supp. 1988).

• Before Kaiser could proceed with its planned residential housing project on this tract, it had to obtain a special management area use permit from the City and County of Honolulu (City).

Know also as the Pearl County Club

And the Public Hearings

• The permit application drew the attention of a number of citizens who protested that the housing development would severely impact the beach area known as Sandy Beach which is on the opposite side of Kalanianaole Highway from the proposed development area.

• The citizens voiced their concerns relative to the housing development in a series of public meetings

Strike One

• But Kaiser was eventually granted a permit to proceed with its plan for the housing development.

• A group of citizens formed The Save Sandy Beach Coalition (Coalition) to prevent the housing development.

• The Coalition circulated an initiative petition which proposed to amend the designation of the tract from residential to preservation on both the City's land use development plan and zoning maps.

• The Coalition gathered the necessary signatures to place the initiative proposals on the ballot for vote by the electorate

Ball One

• Kaiser Kai tries a pre-emptive strike and asks the district court to enjoin the balloting – the court does so

• The coalition appeals, and the appeals court issues a decision lifting the restraining order

• The election proceeds and the voters overturn the rezoning & downzone the property

You might say that things are upside down at this point

Ball Two

• Janet Jackson in protest of

Strike 2

• Kasier appeals to the Hawaii Sp. Court for reversal of the election

• Quoting from the Hawaii Planning Enabling Statutes

– “Zoning in all counties shall be accomplished within the framework of a long range, comprehensive general plan prepared to guide the overall future development of the county. Zoning shall be one of the tools available to the county to put the general plan into effect in an orderly manner.”

Ball 3

• The court notes:

– Zoning by initiative is inconsistent with the goal of long range comprehensive planning, and "[i]t seems unlikely that the Legislature intended the possible frustration of comprehensive zoning through the initiative process."

Strike 3 – You Are Out

• Zoning is intended to be accomplished in accordance with a comprehensive plan and should reflect both present and prospective needs of the community.

• Among other things, the social, economic, and physical characteristics of the community should be considered. The achievement of these goals might well be jeopardized by piecemeal attacks on the zoning ordinances if referenda were permissible for review of any amendment

• Sporadic attacks on a municipality's comprehensive plan would tend to fragment zoning without any overriding concept.

• The opinion of the appeals court is reversed – popular the vote cannot be used to amend comp plans.

Ugly Building #4

A Vested Right

• A right or privilege acquired after a threshold requirement that cannot be lost due to a change in law, position, or circumstance if the requirements for holding this right are adhered to

• Often referred to as a “grandfathered right or clause” by the layperson

Vested Use Right

• A valid permit (quick to vest state)• Time• Substantial investment of funds• Good Faith Reliance on Administrative Officer• Due diligence to ascertain the facts• No fraud

Examples

• Non-Conforming Use Right

– Threshold – previously legal use and/or valid permit

• Requirements

– Not destroyed beyond 50% of value– Continuous or not abandoned for a specific

amount of time– Unchanged in use– Not Expanded– Not a nuisance

Estopple & Laches

• Estopple is a claim of equity (I demand justice). In land use cases it is typically used when one party claims that they were induced by the government to rely on some regulation, in good faith, to undertake a project (change position)

• Elements to prove estopple vary widely in state courts

Common Elements of Estopple

• Good faith reliance• On some act or omission of government• After extensive obligations• Which would destroy the rights to date• And results in a highly unjust and inequitable situation• And where, if the government is stopped from

enforcement, the health, safety and welfare of the community would not be placed in detriment

Laches

• Means undue delay in asserting a right or a privilege• Government acquiescence and full knowledge of the

infraction is usually required• What is important to understand is that the

government had full knowledge that this was an illegal act but failed, over a long period of time, to invoke their powers of enforcement

Ugly Building Contest Time

The ADVISORY BOARD OF ZONING APPEALS OF THE – 1986 - CITY OF

HAMMOND

84,000 persons - 2000

Facts

• Foundation for Comprehensive Mental Health purchased a site in Hammond o use the property as a temporary residence for not more than ten teenage and pre-teenage children in need of services. The children would be referred from the Lake Juvenile Court with the ultimate goal being to reunite the children with their families as soon as possible

• City issues improvement and building permits• The Foundation spends $151,000 in improvements• The Foundation applies for a certificate of compliance and

occupancy

The City Says No

• The proposed operation far transcends the activities of a boarding, rooming, or lodging house, whose primary, if not exclusive, function is to provide shelter and meals

• The proposed facility's expressed purpose is to provide temporary housing for a specialized group, subordinate to its main purpose of providing professional care and counseling to children having a special need for that counseling

• The use is essentially residential care for children with a special need, and while shelter and board are provided, they are subordinate to its primary activity, care and counseling of children removed from their homes and families in Juvenile Court proceedings.

ZONING Administrator Says NO! This is not a boarding or rooming house and these children are not disabled

The Appeals Court Review

• THE FOUNDATION clearly applied as a “Boarding House” for not more than 10 “guests”, with or without meals, including sleeping facilities

• THE FOUNDATION did not disclose that “10 guests” were juveniles – but were not charged with crimes

• Therefore, THE FOUNDATION (although somewhat disingenuous) did not commit a fraud or deceit AND

• It is clear that the definition for a Boarding House is sufficiently broad to cover a “halfway houses” for troubled teens.

Conclusion

• The city issued the permit knowing full well the “Nature and Mission” of The Foundation

• It was only after many property owners, some quite distant from this site, signed a petition against the Foundation, that the city “discovered” that its boarding house definition did not cover the “group home” nature of the foundation juvenile mission for this building

• The city’s definition of a “boarding house or home” is sufficiently broad to cover the activities that the Foundation conducts within one of its homes.

• Estopple is an appropriate remedy in this case

The Trial Court Speaks

• The court holds that the proposed use constituted a boarding, rooming, or lodging house and that, based on the issuance of the improvement location and building permits, the city was estopped to deny the issuance of the certificate of occupancy and compliance

Transland Prop. V Village of Nags Head

North

Carolina

Nag’s Head Police Force

The Facts

• After having amended its zoning ordinance to permit condominium buildings on petitioners' land, the Board of Commissioners issued to petitioners 25 permits for the construction of condominium buildings on a parcel of land within a much larger tract zoned for multi-family dwellings. petitioners had substantially begun the physical erection of 12 condominium buildings, designated as buildings A through L of "The Villas."

The Scheme

This tract entitled to 25 permits

THE VILLAS

Changed Their Minds

• After much public pressure and a public hearing, the ordinance was amended again 4 months later to prohibit the condominium section of the project

• The Commission revoked the remaining 13 building permits

“Residents who oppose the Wal-Mart construction project in Kilbuck want public agencies to revoke all of the developer's permits, the Pittsburgh Trib reports. Communities First! plans to formally demand the revocations later this week, said member Bob Keir, of Avalon.”

Transland Spends $$$$

• Prior to this Transland spent $246,000 to acquire the land, clear and grade it.

• Also spent $346,000 in sewer, water, road and sidewalks and payment to subcontractors

South Carolina Vesting Law

• Under South Carolina vesting law the applicant must have:

– Acquired the necessary permit legally– Expended substantial sums of money– Made the expenditures in good faith reliance on

government– Acquired substantial obligations to proceed with the

project– Construction must have commenced

The Sticky Part

• The Nags Head ordinance contained a clause that allowed a building to be completed, even if the law was changed, within 180 days after a permit was issued as long as construction had commenced.

• But since construction had not commenced on the remaining 13 buildings, was Transland entitled to a vested right on these buildings?

Most many states have a “breathing clause” that allows continuation of a project for a certain period of time after construction commences

Supreme Court Ruling

• Obviously, Transland had acquired a vested right to complete the 12 buildings.

• Since project expenditures and obligations extended across the entire phase of the condo project, the right to continue the entire 25 units had vested

Transland Is As Happy As A Pig With a Bucket of Slop

Auburn v Desgrosseilliers

• The Desgro… own property and intend to start operation of a multi-business enterprise (floral shop, gift shop, retail tree and plants, and landscaping business)

• They meet with the zoning administrator, McPhee and are informed that the property must be rezoned from Urban Residence to General Business

The Problem Begins

• Their property was rezoned to General Business in 1985• A problem occurred in 1987 when a person told them that their

operation was unlawful under the zoning regulations• They meet with McPhee who told them that they were unlawful

because they never “were really never approved.”

It was a bad day for the owners

McPhee

Upon Learning That His Business Was Unlawful

Getting The Bad News

• The Desgros … repeatedly tried for a year to have McPhee give them a comprehensive answer about the zoning violation but were unsuccessful

• In 1989 the City cited them for a zoning violation and ordered removal of the commercial nursery and the tree stock and fined them $500

The Estopple Argument

• The Degros … filed in district court for Estopple and the court barred enforcement

• Estopple is a doctrine that if government induces someone to do something to their detriment, that is not honest error, then the government should be barred from enforcing its own laws

Appeals Court

• The Appeals Court notes that estopple against a City is rare. The City has a right to enforce its own laws and should not be restricted in any manner

• However, in fairness and justice to the Desgros … they were mislead by the Zoning Administrator, City Council, and Planning Commission

Decision

• If the Desgros … would have opened their businesses on the exclusive reliance of McPhee, that reliance would not have been reasonable

• No one has demonstrated that the conduct of this business threatens the health, safety, welfare or prosperity of the City. A balancing of equities in this case requires the City to be estopped for enforcing its ordinance against the Degros …

Dege v City of Maplewood

• Albert and George Dege own a garden Center in Maplewood

• They obtained a special use permit allowing them to construct a parking lot on land zoning for residential use adjacent to their building, but this prohibited truck or trailer parking

• 15 years later the Deges’ applied for a building permit to construct a trailer garage on the parking lot – the City granted this permit

Albert & George Dege

Maplewood MN

Population 35,000

Round 1

• The Dege Garden Center has a special permit to build a parking lot in a residential area

• The terms of the special permit include:– Cannot park machinery/or store trucks, trailers and other

equipment on this lot– A public hearing is required before any of the terms of the

permit can be modified

And Then

• George Dege obtains a building permit from the city in order to construct a trailer garage on the parking lot

• After construction had begun, neighbors complained to the city that the garage violated the conditions of the special use permit (no public hearing held and no trailer parking – even in the garage)

Round 2

• During construction, neighbors complained that the building violated the terms of the special use permit

• The City revoked the permit, issued a stop work order, and ordered the building to be removed

• The Deges’ applied for an amendment to their special use permit – they were denied

• They filed suited in district court and won a summary judgment and estopple

Appeals Court

• Dege asserts that he changed his position in reliance upon the building permit to the extent that it would be inequitable for the city to require him to remove the garage

• Dege spent more than $ 10,000 on the garage's construction, and it would cost more than $1,500 to have the garage removed from his property

• Dege contends that the city should be estopped from revoking the building permit, and estopped from enforcing the zoning ordinance and special use permit. The city does not dispute the fact that the garage was substantially completed.

Good Faith

• Dege did not act in good faith when he received the building permit. He knew or should have known that the special permit excluded the garage for trailer parking.

• The dollar amount expended on the project does not create vested rights sufficient to outweigh the public's interest in zoning cases

• The mere possession of a building permit and the incurring of expenses does not create vested rights sufficient to justify estoppel.

Deges’ Building After the Decision

Speedy Lewis

Speedy Lewis v City of North Myrtle Beach

• Lewis sells an ocean front lot• He retains the 2 story house and plans to move

it to another lot• He applies for a permit to move the house and

submits a “plot plan” as required• Plot plan is prepared by a local surveyor and

indicates that the house would be 11 feet from the side lot line. However, the plan does not show the dimensions of the eaves

The Plot Plan

Speedy’s House

11 ft setback

Actions

• Lewis is granted a moving and building permit• Digs a basement and places the house on the new lot• Upon inspection it is determined that the house is too close to

the side lot line because of the size of the eaves• Lewis applies for a variance but is denied• City grants permission to hook to electrical power on condition

that Speedy cut the eaves off the house. He does not do so and the City revokes the permit and orders the house to be removed

District Court Trial

• Lewis says that the City should have issued him a certificate of zoning compliance – which they did not do. He relied on their expertise

• Lewis says he also relied on the surveyor and that the City should have inquired into the Plot Plan

• District court issues estopple

Appeals Court

• Lewis admits that he had knowledge of the City’s setback requirement

• He had the means and opportunity himself to measure the house dimensions and the side yard distances

• The City could have issued a certificate of zoning compliance but only if Speedy applied for it – he did not

Decision

• The essential elements of equitable estoppel are (1) lack, on the part of the one claiming estoppel, of the knowledge and means of gaining the knowledge and/or truth as to the facts and circumstances upon which his claim of estoppel is predicated;

• (2) conduct, representations or silence of the party estopped, amounting to misrepresentation or concealment of facts;

• (3) reliance upon such conduct, representations or silence; and • (4) resulting action, to his detriment, by the party claiming the

estoppel.

Speedy – After Trial

Storm v Town of Ponce Inlet

Florida - 2004

The Controversy

• Gordis Preston, the chief building official for the Town, is sued by Mr. Storm for:– supplying false information to Storm, either negligently or

maliciously, concerning the proper building elevation upon which his residence needed to be built to comply with the Town's ordinances and the National Flood Insurance Program, his reasonable reliance on those misrepresentations, and the resulting damages to his property because, among other things

He screwed me over

Richard “Dick” Storm

The Suit

• Preston is cut lose from the suit and Storm names the City of Ponce Inlet as a party to the ‘Tort”

• Storm alleges that the Town had a common-law duty to supervise its chief officials, and that it had negligently retained Preston as its chief building official after knowing of his incompetence, misfeasance in office, and refusal to properly enforce compliance with the Town's building codes.

• This resulted in damage to Storm's property because of Preston's malfeasance in repeatedly misinforming Storm of the required building elevations, failure to enforce the Town's building codes, and Storm's reliance on Preston's express misrepresentations.

Storms Loses

Preston’s wife convinces Richard Storm to release her husband from the damage suit when she meets him at the town’s annual watermelon eating contest

The Town Replies

• The Town relies on a Florida case from 1985 as precedent for its position that sovereign immunity bars any remedy against the Town.

• This case decreed that there was no waiver of sovereign immunity for damages caused to individuals when building officials negligently enforced provisions of a municipal building code

• “The government clearly has no responsibility to protect personal property interests or ensure the quality of buildings that individuals erect or purchase. The proper remedy for faulty construction lies in an action against the contractor, developer, or seller”

The Court Notes That• “The negligent retention or supervision of an incompetent,

dangerous agent or servant under circumstances which establish that the employer knew or should have known of the agent's or servant's incompetence and dangerousness, and the likelihood or foreseeability that such agent or servant would injure a third person, growing out of the employment status has long been recognized as a basis for tort liability in Florida”

Ugly & dumb is not always incompetent

The Basis of the Law

• When one moves to rely on the duty and advice of a ministerial official, that person then enters a “zone of risk” and is assumed to proceed under due diligence

Not everyone can be smart, nor should they!

Gordis Preston

Operational v Discretionary

• The court, like most appellant courts in the U.S., will need to distinguish between operation duties and discretionary duties

• If the duties are discretionary, that is following established rules, then the court will inquire no further

• If the duties are operational, then the court will examine the actions to see if there is “right fit” between the means used and the ends achieved

The Test

• Duties are Discretionary if:– Does the challenged act involve a basic governmental policy,

program, or objective?– (2) Is the questioned act essential to the realization or

accomplishment of that policy, program, or objective as opposed to one which would not change the course or direction of the policy, program, or objective?

– (3) Does the act, omission, or decision require the exercise of basic policy evaluation, judgment, and expertise on the part of the governmental agency involved?

– (4) Does the governmental agency involved possess the requisite constitutional, statutory, or lawful authority and duty to do or make the decision?

Decision

• The duties are clearly discretionary• Storm has no right to challenge the wisdom of

the City Manager in hiring Preston

– Preston’s duties must be classified as a discretionary governmental process and non-tortious, regardless of its un-

wisdom

Suffolk v Suffolk Bd. Of Zoning Appeals

• In 1985, Etheridge purchases a tract of 164 acres in the City of Suffolk

• In conjunction with an adjoining landowner, Etheridge planned to develop the combined tracts of 310 acres as a planned unit development known as King's  Landing

• In June 1988, Suffolk rezoned the 310 acres from "Rural Residential" to "Planned Development Housing" ("PD-H") and approved the Master Land Use

• The Master Land Use Plan reflected a mixed-use and mixed-density development  including medium and high-density residential areas, as well as commercial parcels.

The Next Zoning

• In 1994, Etheridge requested that approximately 10 acres of the Property be rezoned from "PD-H" to "General Business

• At the same time, Etheridge submitted amendments to the 1988 Master Land Use Plan to change the proposed residential development areas from mixed density to low density for the remaining 154 acres of the Property

• In 1994 the City Council approved the rezoning and reduced the density for the remaining 154 acres to four units per acre, and approved the Amended Master Land Use Plan

The First Project

• In 1995, Etheridge submitted a preliminary recreation plan and a traffic impact analysis based on a full residential development of the Property

• The City approved• In 1996, Etheridge submitted a preliminary subdivision plat for

part of the remaining 154 acres of the Property (designated as "Planter's Station at King's Landing Section 1, 2 and 3"

• The Planning Commission approved this preliminary plat & granted extensions of time for submission of the final Planter's Station plat to April 1998

• The extensions were requested to accommodate the engineering design for the entire Property relating to sewer, water, storm drainage, and related items since the Planter's Station portion was part of an integrated infrastructure for the whole Property.

• In 1997 the city adopted a totally new set of regulations and zoning map

• The UDO effectively rezoned all of the Property, other than the 10-acre commercial section, from "PD-H" to "Commerce Park" and "Office-Institutional."

• Etheridge asks for an exception to retain his original zoning designation - the Zoning Administrator rules no!

• The Bd. Of Zoning Appeals reversed the decision and ruled for vested right in King’s Crossing – the trial court concurred

The Appeal

• “Privately held land is subject to applicable local zoning ordinances whether enacted before or after the property was acquired. Generally, landowners have no property right in anticipated uses of their land since they have no vested property right in the continuation of the land's existing zoning status”

• The law requires: “substantial expenses in diligent pursuit of the specific project in …” 

• A landowner's rights shall be deemed vested in a land use and such vesting shall not be affected by a subsequent amendment to a zoning ordinance when the landowner (i) obtains or is the beneficiary of a significant affirmative governmental act which remains in effect allowing development of a specific  project, (ii) relies in good faith on the significant affirmative governmental act, and (iii) incurs extensive obligations or substantial expenses in diligent pursuit of the specific project in reliance on the significant affirmative governmental act.

The Nature of Standing

• Standing is both a baseline and a threshold principle in law. To gain standing before the court a person must be involved in the direct chain of benefit/burden

• As a baseline, a person must be aggrieved before they can enter litigation

• As a threshold, the case must be ripe before a person can enter the judicial arena

Storm Finds Jesus

Ripening + Standing

And Standing

Ben Lomond Realty v Anchorage

• The S & S Apartments are a group of eight wooden, two-story buildings.

• In 1983 the United States Department of Housing and Urban Development (HUD), which insured the mortgage on the apartments, determined that the buildings had been vacant for over four years and the property was "in very poor, abandoned and condemned condition."

Background

• In March of 1983, Norman Thompson, President of Ben Lomond offered to sell his interest in the apartments to purchaser.Under the sales agreement the total price was $ 2.5 million. That amount was to be paid by a S350,000 deposit, assumption of the HUD mortgage and the balance by May 1, 1983.

• Ben Lomond, Inc. took possession of the property and started to strip the buildings down to the bare framing.

Norman & Mrs. Thompson – President of Ben Lomond, Inc

Round 1

• Ben Lomond's architect prepared a report for the entire project showing that the apartment complex then contained 224 units and that when all the buildings were renovated there would be a total of 280 apartment units.

• On June 8, 1983, Ben Lomond applied to the city for building permits to renovate all seven buildings. The applications show an intent to renovate 264 apartment units. As required by the building code, Thompson submitted architectural plans with the applications; those plans showed a total of 280 proposed units. At that time the site was zoned R-3, which allowed only 234 units.

264 units – proposed280 units – shown on plans234 units - actually allowed

The Permits

• The zoning administrator realized that there was a parking deficiency, but after legal consultation, issued the permits because he believed that Ben Lomond had “grandfather rights.”

• Later, after many local complaints, the planning director reviewed the case and concluded that the zoning designation only allowed 234 units, and not 260. The permits for the project were revoked

City’s Actions

• Ben Lomond meets with the City but decided not to pursue a variance or a special use permit

• Based the on a new plan Ben Lomond did not make the second payment to HUD and thereby lost all rights to the property

• Ben Lomond filed a suit asking for 3 million in damages based on his claim that he had a vested right to pursue his project

A New Park

• About a year later the City purchased the property from HUD, demolished the buildings, and created a park.

• This appeal raises two major issues. First, whether the permits were unconstitutionally revoked and second, whether the Municipality was immune from suit for such actions.

• However, the case was not decided on these issues.• The real issue was whether Ben Lomond has standing because

he did not exhaust his administrative remedies (ripeness)

The Decision

• We have observed that "the basic purpose of the exhaustion doctrine is to allow an administrative agency to perform functions within its special competence -- to make a factual record, to apply its expertise, and to correct its own errors without resort to judicial actions

• Ben Lomond does not get standing to sue so suck it up and get over it

Waitress says Hooters restaurant promised her a Toyota, gave her a toy

Yoda

Jodee Berry, 26, won a

A former Hooters waitress has sued the restaurant where she worked, saying she was promised a new Toyota for winning a beer sales contest.

Copple v City of Lincoln

• The City of Lincoln rezones a tract of land from General Business to “Regional Shopping Center.”

• Newt Copple owns a tract nearby. He had planned to market his land for a shopping center

• He claims that as a citizen, resident, and taxpayer of Lincoln he has been damaged by this decision since his proposal will no longer be viable and he would suffer a hardship by having the other shopping center so close to his project

District Court

• The District Court, after a hearing on the merits of the case, found that the plaintiff was not a person aggrieved, that he did not have standing to sue; and that even if he had legal standing, he had failed to prove he suffered some special injury peculiar to himself as required by law to have standing to appeal the action of the council.

Nebraska Supreme Court

• The possibility that zone changes may afford competition for businesses which the plaintiff hopes will be established on his property if it is rezoned is not sufficient to give standing. An increase in business competition is not sufficient to confer standing to challenge a change of zone.

Newt Copple Fails

When your best just isn’t good enough

Governmental Relationships, Sovereignty and Immunity

In a republic form of government there are four sovereign entities – the States and the three Commonwealths and the Federated Tripartite Government

The local governments are simple creatures of the States and have only those powers intended by the states’ constitutions

Superior Sovereign and Governmental Immunity

• The basic question in this section is whether one level of government, or an agency of government, is superior to and immune from the regulation of another government

• Is the Federal or state government immune from a local zoning regulation

Brown v Kansas Forestry, Fish and Game Comm.

• In 1975 the Ks. Forestry, Fish and Game Commission purchased 2 lots in the middle of a 23 lot subdivision North of Manhattan KS.

• The commission intended to use the property to construct a parking lot with public toilets

• The commission did not apply for rezoning and proceeded to begin when residents brought a suit for injunction

The Argument of the Commission

• As an agency of the state performing a governmental function, we are immune from the laws of a mere political subdivision of the State unless there is a legislative declaration to the contrary

• The commission possesses the power of imminent domain indicating the legislative intent that its use of land is not subject to a local jurisdiction

The Appeals Court

• The Appeals Court selected a test which is based on a balancing of interests

• The court selected 5 points through which to view the test– Nature of duty– Importance of duty– Impact on the public– Would the agency be impaired in their duty– Would the neighborhood be impacted

The Five Points• This is a state agency and its judgment is entitled to

considerable deference• The general function, promotion of recreation is

important but not on the same level as education or health

• While some would find this parking lot more convenient that others, the population impacted is relatively small

• Moving the lot to a none residential area would inconvenience some but would not impair its usefulness

• The use would have a substantial impact on the surrounding area that extends beyond a mere convenience

Decision

• The commission simply asserted its immunity, without attempting to justify the reasonableness of its decision, while the court looked no further than the admitted violation of the zoning regulation.

• “It seems to us that, on balance, the initial decision on reasonableness in this case can be made more expeditiously and with greater discernment by the local zoning authority”

Things Do Not Always Go Well For Native Americans

Narragansett Indian Tribe of Rhode Island v Narragansett Electric Co

Background

• Lands returned to this tribe in the 1970s• 2,500 acre reservation set aside in Western

Rhode Island in 1979• Formal recognition of the Narragansett as a

tribe in 1982• Total number of tribal members about 3,000

persons• Historic tribal size was about 35,000 persons

Facts of the Case

• In 1991 the Narragansett Housing Authority [NHA] purchased 32 acres of land adjacent to their settlement lands (across a road) to construct an elderly/low income housing project

• The land lies within the Coastal Management Zone of Rhode Island

• The land also lies within the town limits of Charlestown and is zoned residential with a maximum of two acres per residential unit

• The project entails 52 units on 32 acres

The Controversy

• The tribe began the project without obtaining permits from the Town, a sanitary permit from the State, or a permit from the Coastal Zone Management

• The project is in close proximity to Ninigret Pond – a stressed, salt water estuary

• A suit was filed in U.S. District Court• Court rules that the project is located on Indian Land

and is exempt for local and state regulations but is subject to Coastal Zone Management Regulations

The Appeal

• The State appeals this decision claiming that the project is not located on “Indian Land” and is not entitled to pre-emption

• The heart of the argument is that the housing site was not part of the 1970s settlement with the tribal and thus cannot be “Indian Land”

• The tribe claims that the Settlement Act did not abrogate their right to purchase other lands and did not limit its ability to gain sovereign authority over such lands that it acquires.

Court’s Analysis

• The Court notes that, for the most part, the original settlement lands for all Amerindians constitute a separate nation and are exempt from State control unless otherwise provided for by the U.S. Congress

• However, "land is 'validly set apart for the use of Indians as such' only if the federal government takes some action indicating that the land is designated for use by Indians.“

• In other words, the tribe holds this land separately from their settlement and has not established governmental intent to support their claim to pre-emption

Intermission

National Beer Label Awards

Mechanics and Allowable Actions

• Interpretation of terms • Making findings of fact• Contract Zoning and condition in zoning

“Never under estimate the power of stupid people in small groups”

http://www.robrob8.com/seasonal/oldlady.htm

Definitions – A Couple of Rules

• The heart of the zoning ordinance– The word to be defined must not be contained in the

definitions– If a definition is not given, the “Webster’s” definition will be

substituted as the highest authority– A definition is inclusive and exclusive: “includes but is not

limited to” “but does not include the following”

Examples

• Commodity and warehouse storage, but this does not include “mini” or “self storage.”

• … does not include, but is not limited to the following items, inoperative motor vehicles, house furniture, washing or drying machines, inoperative machinery, debris, scrap materials and wood ….

Can You Say “Drive In”

• Chanhassen Estate Res. Assoc. v Mickey-Ds

– The McDonald's Corporation sought approval of its acquisition of the westerly 1.3 acres of an 8.5 acre tract in the Chanhassen Estates subdivision.

– The site has been zoned C-2 since it was platted, and is surrounded by commercial and industrial zones.

– Mickey Ds also applied for building permits, which required design and site plan review by the planning commission and approval of the City CouncilHi Kids,

Be sure to take Daddy’s Billfold and bring me all the money

The Twist

• What type of use?– Under the Chanhassen Zoning Ordinance, a restaurant is a

permitted use and a drive-in is a conditional use of the C-2 zone

– McDonald's wished to construct a restaurant with a "drive-thru" window. The city attorney, city engineer, and city planner all recommended approval as a permitted use

– A spokesman for the Chanhassen Estates Residents Association (CERA) voiced opposition at a public hearing

Approval?

• City Council approves the site plan by a narrow margin– The Chanhassen Resident’s Association files for a

permanent injunction in the “the permit was improperly issued”

– Ronald McDonald is happy

Court Says “NO”

• The Trial Court– A "drive-thru" window would not be a permitted use because

the product could be consumed in the vehicle on the same site

– The trial court determined that the proposed facility was not a "drive-in" as defined in the ordinance because the customers do not wait in parked cars.  They determined that a use specifically excluded from the permitted use should be considered a conditional use

Minn. Supreme Court

• Minn. Supreme Court reverses– Because the terms "drive-in" and "drive-thru" are

not synonymous, a drive-thru would be neither a permitted or conditional use, and would be effectively excluded from the city

– To be effective, any restriction on land use must be clearly defined

– They concluded that the McDonald's restaurant, as proposed with a drive-thru window, is a permitted use

The First McDonald’s – Where?

The First Ray Kroc McDonalds Des Plaines - Illinois

San Bernardino

Swift v Sublette Co. Planning Bd.

• Wyoming Supreme Ct. – 2002

• This case illustrates the zoning principle of “customary accessory uses” or “associated uses/supporting use,” as they are often called.

• Typical ordinance language – “The following uses are permitted by conditional use permit along with those accessory normally and customarily associated with the principle use.”

The Issues

• Joe’s Concrete and Lumber, Inc. operates a gravel pit on land near Boulder, Wyoming

Joe’s applies for a conditional use permit (CUP) to continue using the extraction site to include a concrete batch plant

The owner of the land adjacent to the site objects – dust, noise, traffic, plagues of locusts and flies

Board approves the CUP as an accessory use

Adjacent land owner files for injunction in district court and court refuses – land owner appeals

Basic Review

• The Zoning Regulations of Sublette County allow for the issuance of a conditional use permit

• For gravel pits and “associated extraction activities” within land zoned Agriculture (A-1).

• Resolution of this dispute is dependent then upon a determination of whether a concrete batch plant can be considered part of the “associated extraction activities” of a gravel pit.

Joe’s argument –The batch plant is closely associated with the extraction of sand and gravel

Appellant's argument- the batch plant is a processing activity while sand and gravel is an extraction activity

Court Views Plain Meaning

• Extraction - a: to draw forth (as by research) . . . b: to pull or • take out forcibly . . . c: to obtain by much effort from someone unwilling . . . 2: to

withdraw (as a juice or fraction) by physical or chemical process; also: to treat with a solvent so as to remove a soluble substance 3: to separate (a metal) from an ore

• Associated - closely connected (as in function or office) with another 2: closely related esp. in the mind. Merriam-Webster’s Collegiate Dictionary

Conclusion

• There is nothing in the record to indicate that the batch plant bears any relation to the actual physical extraction of the gravel from the ground.

• There is no indication that a batch plant refines or processes the gravel in a manner that removes or separates the gravel from other substances

• The batch plant processes the gravel with other ingredients to create a product – concrete – it does not extract or assist in the extraction of the gravel from the ground

• There is no rational relationship between sand and gravel extraction and the batch plant

• The relationship between the two is mere convenience. Reversed

Today’s Thoughts

Putnam Associates v City of Mendota Heights MN

• Findings of Fact– Land near the airport is zoned R-1 residential– Increasing air traffic becomes a concern– There is a proposal to rezone the property to HD –

Planned Development– The proposal is rejected but the Metro Council does

change the designation to HD in the Land Use Map of the Comp Plan

Several Years Later

• Moves and Countermoves– Several proposals for commercial development are

rejected by the City– Rottlund Corp buys the property from Putnam Co.– Proposes townhouses– Request rezoning to HD, asks for a conditional use

permit and sketch plan approval– City Planning Commission votes 7 – 0 to not

recommended the proposal

Further Action

• Rottlund makes some design changes but:– Council votes 3-2 to deny the change– AFTER the meeting the City Attorney prepared from

his notes and wrote the “findings of fact” that were incorporated into the final resolution

– Rottlund/Putnam bring suit and the trial court rules against the City

– Trial Court says the action is unreasonable in that Council should have made contemporaneous findings

Supreme Court Reverses

• Why?– What we seek to prevent is “offering after the fact

reasons” for a decisions– This rationale is not served by denying a city a

reasonable amount of time to prepare a record or formalize its findings. We conclude that as long as the necessary record is prepared within a reasonable time of a zoning decision, a municipality should not be presumed to have acted in an arbitrary manner.

Nuns and Zoning

Contract Zoning

• This case explores the nature of contract zoning

– Contract zoning is said to be a written or oral agreement between the owner and governing body to file certain private restrictions or limitations in return for the rezoning

– The basic idea is that government cannot “contract” to have a law passed

Draculich v City of San Antonio

• In May 1998, the Sisters of the Sacred Heart of Jesus of St. Jacut applied to rezone four acres

• The four acres were part of a larger tract of land owned by the Sisters in that area zoned to permit single-family and duplex residences but not multi-family residences

• The Sisters planned to sell the land to a non-profit to provide a shelter for homeless people

• Neighbors protested the zoning change

Homeless Shelters Are BANANA

•Banana – Build absolutely nothing anywhere near anything

•Proposed by the CAVE People – Citizens Against Virtually Everything

Background

• During discussions with the Sisters the Planning Commission Chair (Martindale) suggests that they file numerous restrictive covenants to satisfy the neighbors

• The Chair of the Planning Commission contacted Bannwolff, the City Councilperson that represents the district, in order to communicate the nature of the restrictions

• Planning Commission approved and City Council vote 9 –1 to approve. Bannwolf votes against

Follow up

• After the rezoning the Sisters sold the tract to the non-profit agency

• The neighbors in opposition sue• The suit claims an illegal uses of the zoning power

based on “contract zoning.”• Neighbors claim that the rezoning ordinance is not

legislation – but a contract providing for the bargaining away and selling of the police power

• The District Court rules in favor of the City

Appeals Court Review

• The appellants contend the rezoning was the result of an illegal contract between the City Council and Martindale under which the City agreed to the rezoning in exchange for promises made by Martindale.

• Martindale specified for Bannwolf the restrictions the Sisters were willing to put on the use of the property; for example, that it would not be used as a half-way house for substance abusers, no on-site soup kitchen meals would be provided, and twenty-four hour on- site security monitoring would be provided

The Nuns Are Pissed

City’s Comments

• The mayor’s statement to the City Council made it clear that the agreement to place restrictions in the deed was the result of negotiations conducted on behalf of the residents of the nearby neighborhoods.

• At trial, Mayor Peak testified that Martindale was not promising anything that the R-3 zoning would not have already restricted him from doing. Mayor Peak agreed that the restrictions were to allay the concerns of the neighbors, and were not conditions requested by the City.

• The mayor said he never promised Martindale, any representative, or the Sisters that placing the restrictions in the deed would guarantee a favorable vote by the City Council.

Further Allegations – Spot Zoning

• Spot zoning is an unacceptable ordinance that singles out a small tract for treatment that differs from that accorded similar surrounding land without proof of changes in conditions. "Spot zoning is regarded as a preferential treatment which defeats a pre-established comprehensive plan. It is piecemeal zoning, the antithesis of planned zoning.

• To address this allegation the court characterized the neighborhood

Spot Zoning!

Aminty Street

Ville

Street

Residential Area

Training Center

Rezoning Site

RETAIL STRIP CENTER

SECONDARY SCHOOL

SEMINARY COMPLEX

Character of the Neighborhood

• Adjoining the northern boundary of the tract is a Diamond Shamrock training center which originally was a convenience store. Also adjoining  the north boundary of the four-acre tract, and immediately east of the Diamond Shamrock training center, is a retail strip center. At the northeast corner is Castle Hills Apartments. South of the tract is a San Antonio Christian secondary school. Southeast of the tract is an elementary school operated by the Sisters. South of the two schools, is a complex owned by the Oblate Fathers that includes a seminary, a home for retired priests, a retreat house, and retreat apartments.

Decision

• Given the fact that the City (1) never induced the Sisters to bargain for the rezoning, and (2) the condition and character of the nearby neighborhood are certainly conducive to multi-family living

• The Court upholds the decision to dismiss and held for the City

DURAND v IDC Bellingham LLC

• Key Word – Contract Zoning

• The question before the court is whether the town meeting vote was invalid because the prospective owner of the parcel, IDC Bellingham, LLC (IDC), had offered to give the town $8 million if the rezoning was approved and a power plant was built and operated on the site

Background

• Bellingham sought ways to increases the town’s revenues

• They selected industrial development as a program and moved to rezone a certain tract to industrial to lure new firms

• The rezoning failed at town meeting

Folloup

• IDC operated the power plat in the town• They announced that they were interested in building

new plant on the disputed land• They met with the city manager who told them that

the town faced an $8 million shortfall for a new school• Thereafter IDC announced that they would give an $8

million gift to the town if:– They built a power plant– Obtained all necessary zoning and permits– Successfully operated the plant for one year

The Rezoning

• IDC files a zoning application and the town passed the zoning amendment

• IDC begins developing the tract• It appears that the scale of the plant will be larger

than was portrayed in the hearing• The town and IDC negotiate and as part of the talks

IDC agrees to a gift of $7 million to Bellingham for capital expenditures and town improvements

• A group of owners sue and the district court agrees that IDC essential contracted and paid for their rezoning

The Appeal

• The main point of law here is that the payment was not tied to the impacts of the proposed project

• The appeals court• The appeal court reverses the decision on the basis

the payment was not coerced from IDC and that it was a voluntary gift

SPOT ZONING

• The rezoning of a single parcel or a small area to benefit one or more property owners rather than carry out an objective of the comprehensive plan.

• The zoning of a small area of land, or one or more properties, for a use that is not in harmony with the normal zoning plan for the area, especially if a small area is rezoned in a way that does not conform with the surrounding neighborhood.

• Spot zoning is normally invalid if the permitted use is very different from the surrounding area; the area involved is small; or it can be shown that the municipality has favored one landowner to the unreasonable detriment of the surrounding area, or so as to prejudice the intention of a comprehensive plan

Bird-Kendal Homeowner’s Association v Dade Co

• A 1997 case involving spot zoning– This action involves a request for a rezoning on a

tract that is 0.23 acres – it is part of a larger lot of 5 acres

– The tract is part of a large rurban residential area know as “Horse Country”

– The area is currently zoned AU “agri-use”– The request for zoning is BU “business use’

Horse Country

The Tract

The Action

• The Rezoning Request– The .23 acre rezoning is admittedly and solely for

the purpose of a feed store and tack shop– There are no BU3 zoned tracts within miles of this

area– The Homeowner’s Association in “Horse County”

files suit– They content that this is a spot zone and therefore

unreasonable, arbitrary, and capricious

The Hearings

• Legal sequence– District court finds that this constitutes an illegal

use of the zoning power and is unreasonable– The Florida Court of Appeals defines “spot zoning”

• Piecemeal rezoning of smaller lots to greater densities leading to disharmony with the surrounding area

• A rezoning that a small is land of property with restrictions different than surrounding parcels solely for the benefit of a particular property owner

Examination of the Four Part Test

• The Appeals Court uses a four part test to determine if this is a spot zone

– The size of the spot– Compatibility with surrounding area– The benefit to the owner– The detriment to the surrounding area

Melanoma Zoning

• The court says that this goes beyond spot zoning– It is melanoma zoning or “melanomanizing”– Has no relation to anything with 2 miles– Is out of character with the surrounding property– Is a pure benefit to the property owner– Is detrimental to nearby property

The Court Says “No Way” To the Horse Store

Foresight, Inc v Weston Disposal

• This case explores the difference between a non-conforming use that would be allowed to continue when the ordinance is changed, and an illegal use that was never granted “grandfather” status

A Non-Conforming Use

• A use of the land that was once legal but due to changed circumstances is no longer permitted.

• Typically, non-conforming use rights run with the land and:– Are allowed to continue without a change in use, scope,

activity, or nature– Can be lost if the use ceases for a specified period of time– Is amortized for a specified period of time– Or is destroyed by fire or natural disaster

Facts of the Case

• Weston Disposal (referred to as Disposal) was operating a disposal site in the “John Ryan Pit” in the Town of Weston.

• In December of 1992, the Village of Rothschild annexed Weston. Rothschild rezoned the parcel from AR to RE (residential estate); The permit was issued by Weston while the parcel was zoned A/R agriculture-residential

And It Continues

• Later Foresight Developers purchase a tract next to the Ryan Pit and planned to construct single family homes

• Foresight complained that Weston’s use violated the R-1 regulations of Rothchild’s ordinance

• Weston claims that they have a nonconforming use right to continue using its earlier permit from the Town of Weston

RYAN PIT

WESTONDISPOSALCONSTRUCTIONLANDFILL

FORESIGHTDEVELOPERS

The Appeal

• Foresight appeals• The court notes that the issue will turn on the

question of the original permit• When the City of Weston originally issued the permit,

the land was zoned AR• This zoning district, at the time, never permitted

dumping, mining, material storage, or the like

Weston Disposals Counterclaim

• Well, since the original AR never PROHIBITED dumping, then it must have been permitted

• The court says I guess you can’t read since the ordinance says: "no building or tract of land shall be devoted to any use other than a use permitted hereinafter in the zoning district in which such building or tract of land shall be located," with the exception of conditional uses and legal nonconforming uses.

• A permit issued for a use prohibited by the ordinance is invalid and constitutes an illegal permit

POOLE v BERKELEY COUNTY

• In 1980 Mr. Smith owned a salvage yard near Hedgesville, West Virginia

• He operated under a permit from the West Virginai Department of Highways

• In 1984 Berkeley County passed an ordinance requiring that all salvage yards obtain a yearly permit

• It is agreed that Smith was not subject to the permit from the county

Subsequently

• In 1988 West Virginia passed new regulations for salvage yards, but stated that any such use created before 1988 could continue under the old rules

• In 1992 Smith sold the salvage yard to another operator

• The new operator applied for a permit to operate from Berkeley County

• They refused to issue the permit• REASONING: The transfer of property terminated the

non-conforming use right• The district court agrees with the county

The Appeal

• The court found that

– There was no interruption of the use– The use – as stated above – was continuous– The use was not expanded in size– The operation of the yard predated the 1984

county ordinance– The new operator was entitled to a non-

conforming use right – the right runs with the land and not the owner

Of Cows and Non-Conforming Uses

BAXTER V CITY 0f PRESTON

The Background

• Starting in 1969 Thayne Corbridge allowed about 20 head of cattle to graze on two adjoining parcels of land that he owned

• The parcels were separated by a concrete ditch• Each year he would farm one parcel and then allow the cattle to

graze on it• The cattle never remained throughout the winter

And Then Came More Cows

Facts

• In 1984 Corbridge erected a portable manager, haul in Hay, and fed cattle throughout the year – manure accumulated.

• Baxter tried to get the City to enforce its ordinance against Corbridge. The City refused and Baxter brought suit for a mandamus

Court Decision

• The nature of the use had changed by “expansion” and intensification

• Corbridge’s historic use was for 20 cattle on one parcel• This had expanded to 40 cattle on both properties• In addition, he erected a building in support of the expanded use

and converted the operation to a feedlot rather than natural grazing

The Bottom Line

• This is an illegal expansion of a non-conforming use• Corbridge is entitle to continue his historic use

– 20 cattle on one parcel to be removed during the winter months

– No on-site feeding– Cannot erect structures

Of Cows and Bulls

Ugly Building #5 – City Hall

A Twist in The Law

• Can a local regulation terminate the use of a non-conforming mobile home upon transfer of ownership?

Village of Valatie v Lynette Smith

• In 1968, the Village enacted a to prohibit the placement of mobile homes outside mobile home parks. Under the law, any existing mobile home located outside a park which met certain health standards was allowed to remain as a nonconforming use until either ownership of the land or ownership of the mobile home changed. One owned by Lynette Smith’s father fell within this exception at the time the law was passed

Litigation

• The Court acknowledged that a municipality had the authority to phase out a nonconforming use with an "amortization period", but it concluded that this particular law was unreasonable, and therefore unconstitutional, because the period of time allowed "bears no relationship to the use of the land or the investment in that use".

Lynett’s House

The Appeals Court

• The narrow issue is whether the Village acted unreasonably by establishing an amortization period that uses the transfer of ownership as an end point

• Most often elimination is accomplished by amortization periods such as 3, 5, or 15 years depending on value

• Typically, the period of time allowed has been measured for reasonableness by considering whether the owners had adequate time to recoup their investment in the use

Analysis

• Defendant's argument is premised on the "fundamental rule that zoning deals basically with land use and not with the person who owns or occupies it"

• The hallmark of a case like this is that an identifiable individual is singled out for special treatment in land use regulation. No such individualized treatment is involved in the present case. All similarly situated owners are treated identically. The same is true for all prospective buyers

Argument

• Mrs. Smith claims that the law is discriminatory because the time is not fixed

• Some may be allowed to remain in the mobile home for many years while others for only a short period of time

• Mrs. Smith failed to show that the Village’s method of amortization is unreasonable

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