THE ZONING PROCESS: EUCLIDEAN ZONING GIVES WAY TO FLEXIBLE ZONING
THE ROLE OF ZONING CHANGE
Mandelker, Delegation of Power and Function in Zoning Administration,
NOTES AND QUESTIONS
NOTES AND QUESTIONS PROBLEM
MORATORIA AND INTERIM CONTROLS ON DEVELOPMENT
NOTES AND QUESTIONS
Ecogen, LLC v. Town Of Italy
NOTES AND QUESTIONS
Add to Note 1: "The Constitutionality of moratoria post-Tahoe", at p. 555:
Zimmerman v. Bd. of Cnty. Comm’rs., 264 P.3d 989 (Kan. 2011) (Moratorium on accepting or processing CUP applications in which no vested property right ever existed is not a taking).
Easton, LLC v Village of Muttontown, 2012 U.S. App Lexis 25456 (facial challenge to moratorium dismissed, and claims for takings, substantive due process and equal protection violations were not ripe where there was no final determination regarding hardship exemption application).
Samson v. City of Bainbridge, 683 F. 3d 1051 (9th Cir. 2012) (upholding “rolling” moratorium while city revised its Shoreline Master Program against substantive due process and procedural due process claims).
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A NOTE ON STATUTES AUTHORIZING MORATORIA AND INTERIM ZONING
THE ZONING VARIANCE
Puritan-Greenfield Improvement Association v. Leo
Add to Note 1: “The role of variances” at p. 563:
Burns Holdings, LLC v. Teton Cnty. Bd. of Comm’rs., 272 P.3d 412 (Wyo. 2012) (Under the state statute, waiver of height limitation must be by variance, not by conditional use permit; conditional use permit regulates uses).
Add to Note 2: “Variance standards” at p. 563:
Harrison v. Mayor, 73 So.3d 1145 (Miss. 2011) (gravel mining company failed to show unnecessary hardship).
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Add to Note 2: "Variance standards" at p. 563:
Martin v. City of Alexandria, 2013 Va. Lexis 79 (Owners of vacant lot in historic district sought side yard and rear yard variances to construct residence. Virginia Supreme Court overturned variances, stating that the property was not unique and the grant effectively nullifies the zoning ordinance).
MNC Holdings, LLC v. Town of Matthews, 735 S.E. 2d 364 (N.C. App. 2012) (variance to modify nonconforming medical waste incinerator improperly denied where necessary to comply with state and federal air regulations and local law allows structural alterations to nonconforming use where required by law).
Merriam Farm, Inc. v. Town of Surry, 2012 N.H. Lexis 98 (After state legislature eliminated the distinction between use and area variances, court held that the “unnecessary hardship” and “practical difficulty” terms in the statute refer to the unnecessary hardship test and are interchangeable; upholding denial of variance under this test).
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Add to Note 6: “Self-created hardship” at p. 565:
Morikawa v. Zoning Bd. of Appeals of Weston, 11 A.3d 735 (Conn. App. Ct. 2011) (Error of homeowner architect or contractor is a self created hardship that disallows grant of a variance).
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NOTES AND QUESTIONS
A NOTE ON AREA OR DIMENSIONAL VARIANCES
ZIERVOGEL v. WASHINGTON COUNTY BOARD OF ADJUSTMENT
NOTES AND QUESTIONS
Add to Note 1: “Tests for area variances” at p. 571:
Harborside Assocs. v. Parade Residence Hotel, 34 A.3d 584 (N.H. 2011) (Relating to sign variances, explaining the statutory definitions of unnecessary hardship, one of which allows a showing that the variance will allow reasonable use of the property, given its special conditions).
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THE SPECIAL EXCEPTION, SPECIAL USE PERMIT, OR CONDITIONAL USE
County v. Southland Corp.
Add to Note 1: “What they are” at p. 576:
Coleman v. City of Mesa, 265 P.3d 422 (Ariz. App. 2011), rev. granted 2012 Ariz. Lexis 521 (Feb. 15, 2012) (Denial of “council permit” for tattoo parlor within shopping center based on incompatibility states a claim for a violation of the First Amendment, as tattooing is protected speech and the regulation therefor must be narrowly tailored to achieve a legitimate state purpose).
In the Matter of Kabro Assoc., LLC v. Town of Islip Zoning Board of Appeals, 944 N.Y.S.2d 277 (N.Y. App. 2012) (Reversing denial of special exception because neighbors’ claims of increased traffic and decreased property values unsupported by empirical evidence).
Add to Note 4: “Delegation of power” at p. 577:
Kroger Co. v. Plan Comm’n of Plainfield, 953 N.E.2d 536 (Ind. App. 2011) (Ordinance standards for development plan met the requirements of the state statute, but denial of fuel center was not supported by sufficient findings).
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NOTES AND QUESTIONS
Crooked Creek Conservation and Gun Club, Inc. v. Hamilton
County North Board of Zoning Appeals
NOTES AND QUESTIONS
Add to Note 2: “What if” at p. 583:
Richard A. Demonbreun v. Metropolitan Board of Zoning Appeals, 2011 Tenn. App. Lexis 314 (June 10, 2011) (Board of Zoning appeals acted arbitrarily in denying a special exception for bed and breakfast business in a residential neighborhood by focusing on the applicant’s prior history of noncompliance rather than the use, where prior noncompliance is not a statutory factor in the decision).
Add to Note 3: “The standards issue” at p. 584:
Montgomery County v. Butler, 9 A.3d 824 (Md. 2010) (Providing an update of Maryland law on special exceptions and the role of the “compatibility” requirement).
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Add to Note 1: "Judicial review of conditional use decisions" at p. 583:
New Cingular Wireless PCS v. Sussex County Board of Adjustment, 2013 Del. Lexis 238 (AT&T improperly denied special use exception for 100 foot cell tower where the burden of proving that the use would not be harmful improperly was placed on company and did not allow for "some" adverse effect).
Waste Connections of Tenn., v. Metro. Gov’t of Nashville & Davidson County, 2013 Tenn. App. Lexis 212 (Tenn. App. 2013) (County board acted administratively when reviewing special exception application and must provide a record to substantiate a denial; the only evidence in the record was citizen opposition and decision was thus arbitrary and capricious).
Add to Note 3: "The standards issue" at p. 584:
Wyndham Enterprises, Inc. v. City of North Augusta, 2012 S.C. App. Lexis 261 (resident testimony not competent substantial evidence to deny special exception for fireworks store).
Add to Note 6: "Conditions" at p. 585:
Schlotfeldt v. Benton County, 292 P.3d 807 (Wash. Ct. App. 2013) (length of stay condition to RV Park conditional use is within county's inherent authority).
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THE ZONING AMENDMENT
Estoppel and Vested Rights
Western Land Equities, Inc. v. City Of Logan
NOTES AND QUESTIONS
Add to Note 2: "A majority rule?" at p. 592:
Cigarrilha v. City of Providence, 64 A. 3d 1208 (R.I. 2013) (City collection of taxes on property used as three family home since the 1940s, when zoned for single and two family residence since 1923, was not an act on which property owner could rely for equitable estoppel).
Add to Note 4: "Good faith" at p. 593:
Town of Leesburg v. Long Lane Associates Limited Partnership, 726 S.E.2d 27 (Va. 2012)
(landowner does not have vested rights in the zoning classification or land use of his or her neighbor, even where the property was subdivided from a parcel which was rezoned subject to proffered conditions).
Add to Note 5: "Illegal building permit" at p. 593:
Town of Woodway v. Snohomish County, 291 P. 3d 278 (Wash. Ct. App. 2013) (rights did not vest to develop under local comprehensive plan provisions and land use controls in place at the time a complete development permit application is filed where the regulations were invalid under the Growth Management Act).
Add to Note 9: "Sources" at p. 596:
Kenneth Stahl, The Significance of Reliance in Land Use Law. (February 2013) Electronic copy available at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2237644.
A Note on Development Agreements
Add at p. 596:
Suarez v. Grand County, 2012 Utah Lexis 150 (Adoption of amendment to development agreement is a legislative act even though it governed only one parcel of property (albeit very large) owned by a single owner because the agreement was intended to “run with the land” and was based on general policy concerns rather than individual circumstances).
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Add to Note 3: “Substantial reliance” at p. 593:
Levine v. Town of Sterling, 2011 Conn. Super. Lexis 2526 (Oct. 3, 2011) (Upon remand from the Connecticut Supreme Court, town was found to be estopped from denying building permits to landowner who reasonably relied on board’s exemption from effect of new zoning ordinance and who made significant expenditures of his own time and for professionals).
Add to Note 4: “Good faith” at p. 593:
Christian Assembly Rios De Agua Viva v City of Burbank, 948 N.E.2d 251 (Ill. App. 2011) (Church sought to build on commercially zoned property that did not allow religious uses, and while seeking a declaration that the zoning was unconstitutional bought the property; church’s decision to assume the city's ordinance was invalid and proceed at its own risk was not reasonable reliance).
Add to Note 5: “Illegal building permit” at p. 593:
Lauer v. Pierce County, 267 P.3d 988 (Wash. 2011) (“A permit application that is not allowed under the regulations . . . and is issued under a knowing misrepresentation or omission of material facts confers no rights upon the applicant”).
Add to Note 6: “Phased development” at p. 594:
CK Dev., LLC v. Town of Nolensville, 2012 Tenn. App. Lexis 10 (Jan. 6, 2012) (Developer did not acquire vested rights in the application of the prior road standards to the roads that were to be built in phases of the development not yet approved).
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Add to Note 9: “Sources” at p. 596:
Note: Statutory Development Rights: Why Implementing Vested Rights Through Statute Serves the Interests of the Developer and Government Alike. 32 Cardozo L. Rev. 265 (2010).
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A NOTE ON DEVELOPMENT AGREEMENTS
Add at p. 596:
Mammoth Lakes Land Acquisition, LLC v. Town of Mammoth Lakes, 191 Cal. App. 4th 435 (Cal. App. 3d Dist. 2010), 2010 Cal. App. Lexis 2172 (Describing California legislative history and upholding finding of breach of contract, award of $30 million in damages, and attorneys fees).
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NOTES AND QUESTIONS
Add to Note 3 “Sources” at p. 598:
Article: Selmi, The Contract Transformation in Land Use Regulation. 63 Stan. L. Rev. 591 (2011). The author argues that the trend toward the negotiation of terms governing individual projects threatens fundamental public law norms.
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“Spot” Zoning
Kuehne v. Town of East Hartford
NOTES AND QUESTIONS
Add to Note 1: "The problem" at p. 602:
Helena Sand and Gravel, Inc. v. Lewis and Clark County Planning and Zoning Commission, 290 P.3d 691 (Mont. 2012) (citizen’s petition requesting creation of Special Zoning District to prohibit mining was not reverse spot zoning although only one landowner affected, where consistent with the county Growth Plan).
Historic Charleston Foundation v. Charleston, 2012 S.C. Lexis 213 (rezoning of a parcel of land in the heart of the historic section of the City of Charleston was not illegal spot zoning where the city action made the parcel similar to the other parcels on King Street and was an attempt to achieve conformity with the surrounding area).
Farrington v. City of Cambridge, 2012 Mass. App. Unpub. Lexis 620 (Mass. App. 2012) (Overlay district to facilitate the expansion of Lesley University was not spot zoning where City's substantial zoning analysis found that rezoning would confer a public benefit to the city; extensive planning, meetings and negotiations were held for three years prior to approving the plans; and as a legislative act there is a reasonable basis to support it).
Add to Note 6: "The change-mistake rule" at p. 605:
Hirokawa, Keith H. Making Sense of a “Misunderstanding of the Planning Process”: Examining the Relationship Between Zoning and Rezoning Under the Change-or-Mistake Rule. 44 Urb. Law. 295-343 (2012).
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Add to Note 1 “The Problem” at p. 602:
Ely v. City Council of City of Ames, 2010 Iowa App. Lexis 673 (June 30, 2010) (designation of single site with nonconforming use, which was a boarding house for Africa American students, to historic landmark classification is not spot zoning).
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Fielding v. Metro. Gov't of Lynchburg, 2012 Tenn. App. Lexis 63 (Jan. 31, 2012) (Rezoning of 0.81 acre of a 7-acre plot zoned for agriculture and forestry to allow towing service is not spot zoning, considering the public safety justifications for allowing the towing use).
Rotterdam Ventures, Inc. v. Town Bd. of Rotterdam, 90 A.D.3d 1360 (N.Y. App. 2011) (Rezoning of former military housing from industrial to residential zoning is not spot zoning rezoning).
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Quasi-Judicial Versus Legislative Rezoning
Board of County Commissioners of Brevard County v. Snyder
NOTES AND QUESTIONS
Add to Note 2 “Why should zoning be quasi-judicial?” at p. 610:
King’s Ranch of Jonesboro, Inc. v. City of Jonesboro, 2011 Ark. Lexis 114 (March 31, 2011). City’s decision to grant or deny a conditional use permit is a quasi-judicial, not a legislative act, entitled to de novo review. The decision was made by a fact-intensive act of applying the facts to an existing standard, and no new law was created.
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A NOTE ON PROCEDURAL DUE PROCESS IN LAND USE DECISIONS
Add to A Note on Procedural Due Process in Land Use Decisions at p. 614:
In re Application of Buckeye Wind, 966 N.E. 2d 869 (Ohio 2012) (siting of wind farm by state created board; no due process violations where opponents were active participants throughout the administrative process, were allowed to intervene shortly after the initial application was filed, and were heard at a public hearing. Additionally, the siting board did not improperly delegate its responsibility to staff to grant or deny a certificate).
Oakwood Property Management, LLC v. Town of Brunswick, 103 A.D.3d 1067 (N.Y. App. 2013) (Town’s interpretation of the “Schools and Cemeteries” uses is not unconstitutionally vague, as it "provides persons of ordinary intellect reasonable notice of the proscribed conduct” and would not lead to arbitrary enforcement).
Add to "Open Meetings" at p. 615:
Anolik v. Zoning Board of Review of the City of Newport, 2013 R.I. Lexis 43 agenda item simply indicates that a communication had been received from Turner Scott regarding a petition does not adequately notice the community that the petition was for an extension of time for construction of religious facility).
WSG Holdings, LLC v Bowie, 2012 Md. Lexis 838 (Zoning board site visit at property subject to a special exception application is a meeting that must be open to the public)
Add to "Federal law" at p. 615:
Edelzhertz v. City of Middletown, 714 F.3d 749 (2d Cir. 2013) (City's amortization requirement for nonconforming uses of non-owner-occupied multiple dwellings is legislative in character, so no notice or hearing is required by federal Constitutional due process protections).
EJS Properties, LLC v City of Toledo, 698 F.3d 845 (6th Cir. 2012) (City councilman's request for contribution to assisted living facility in exchange for rezoning is not a substantive due process violation because it does not "shock the conscience" for federal constitutional purposes).
Add to end of Note 2. "Bias and conflict of interest" at p. 616:
Kane Properties, LLC v. City of Hoboken, 2013 N. J. Lexis 595 (Property owner obtained use variance from Board of Zoning Appeals which was reversed by City Council which was represented by attorney who represented objectors before the BZA. City attorney's failure to completely recuse himself from the decision tainted the proceedings which should be set aside) .
Newberry Station Homeowners Ass’n, Inc. v. Bd. of Supervisors of Fairfax County, 2013 Va. Lexis 52 (Va. 2013) (No conflict where Supervisors disclosed in special exception hearing that they were directors of Washington Metropolitan Transit Authority, applicant for the special exception, and then voted. They did not have a conflicting business or financial interest and the Authority is not a “corporation” within meaning of the statute.)
Add to "A Note on Bribery and Corruption in Zoning" at p. 618:
U.S. v. Keen, 676 F. 3d 981 (11th Cir. 2012) (Tennessee zoning enforcement officer convicted of criminal misconduct in bribing commissioners for favorable votes on development project).
U.S. v. Plowman, 700 F.3d 1052 (7th Cir. 2012) (Indianapolis city councilman convicted of demanding bribes to influence zoning board to approve a strip club).
Walmart was found to have bribed Mexican officials in order to win land use approvals in nineteen of its store sites in Mexico, resulting in its being investigated by the U.S. government for violations of the Foreign Corrupt Practices Act. See "The Bribery Aisle: How Wal-Mart Got Its Way in Mexico." available at http://www.nytimes.com/2012/12/18/business/walmart-bribes-teotihuacan.html?pagewanted=all&_r=0 New York Times.
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Add to “Due process requirements under state law” at p. 614:
Jasso v. Camas County, 264 P.3d 897 (Idaho 2011) (Approval of subdivision did not meet statutory requirements for findings of fact as they consisted of conclusory statements unsupported by any reasoned explanation of the grounds upon which they relied. Failure to state facts was a violation of adjacent neighbor’s procedural due process).
Riverside Traffic Sys., Inc. v. Bostwick, 78 So. 3d 881 (Miss. 2011) (Failure to give notice of rezoning ten years prior to new owner’s attempt to develop under existing zoning violated neighbor’s due process rights).
Carillon Cmty. Residential v. Seminole County, 45 So. 3d 7 (Fla. App. 2011) (Neighboring homeowners association not permitted to cross examine in a quasi-judicial hearing, as they are participants, not parties).
Add to “Open meetings” at p. 615:
Tuzeer v. Yim, LLC, 29 A.3d 1019 (Md. App. 2011) (Attendance by speakerphone does not violate open meetings law; resolution need not be signed by all members or physically at the meeting).
Gold Country Estates Pres. Grp., Inc. v. Fairbanks N. Star Borough, 270 P.3d 7878 (Alaska 2012) (A site visit is a governmental meeting and must meet the open meeting requirements; internet and newspaper postings are sufficient notice of the site meeting; any defect in due process was cured at subsequent meeting).
Article: R. Lisle Baker, Exploring how Municipal Boards Can Settle Appeals of Their Land Use Decisions Within the Framework of the Massachusetts Open Meeting Law. 44 Suff.U.L. Rev. 455 (2011).
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NOTES AND QUESTIONS
Add to end of Note 2. “Bias and conflict of interest” at p. 616:
Citizens State Bank v. Dixie County, 2011 U.S. Dist. Lexis 38067 (N.D. Fla., April 7, 2011). A county attorney represented an applicant for development approval while also opining as county attorney that the applicant’s development plans complied with the county’s comprehensive land use plan. A subsequent county attorney determined that the development did not comply and the county issued a stop work order. The developer defaulted on its loan, and the bank sued the county for violation of procedural due process, based on allegations that the county was deliberately indifferent to the risk created by allowing the attorney to assume the dual roles. The court denied the county’s motion to dismiss, allowing the case to continue.
Nevada Commission on Ethics v. Carrigan, 131 S. Ct. 2343 (2011). The Court overturned the Nevada Supreme Court’s decision that the state ethics statute violated the First Amendment by prohibiting a city councilman from voting on a zoning matter where the councilman had a possible conflict of interest because his campaign manager represented the zoning applicant. The Court found that the vote was not protected speech, and that to view otherwise was inconsistent with long-standing federal and state traditions. A legislator’s vote is not a personal prerogative, but an apportionment of the legislative power used in trust for the service of constituents.
Davenport Pastures, LP v. Morris County Board of County Commissioners, 238 P. 3d 731 (Kan. 2010). Landowner made an application for damages based on the county’s vacation of a roadway. He claimed a violation of due process based on the county attorney’s dual role as advocate for the county in the damages hearings against the application, while also providing the county board advice on legal and procedural matters. Given the totality of the facts, the Court found more than an appearance of impropriety of bias, but instead a “‘probable risk of actual bias too high to be constitutionally tolerable” and thus sufficient to find a due process violation.
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Limited Edition Properties, Inc. v. Town of Hebron, 34 A.3d 688 (N.H. 2011) (Planning board’s denial of subdivision plat was procedurally adequate; while board members might have expressed personal opinions and feelings, the record showed that they based their decision on the evidence presented. The board did not enumerate the reasons for denying the application in its written notice of decision, but identified the basis for its decision on the record at its meeting).
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Los Chavez Community Association v. Valencia County, 2012 N.M. App. Lexis 16 (May 15, 2012) (Federal and state due process considerations and judicial recusal required respondent county commissioner to recuse herself from voting on an application for a zoning map amendment in a quasi judicial proceeding, where she was a first cousin to appellant applicant).
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