Zoning Forms of Action Forms of action: Different methods of procedure which involve different theories of the existence and extent of liability…

Zoning Forms of Action Zoning Forms of Action

Forms of action: Different methods of procedure which involve different theories of the existence and extent of

liability…

Forms of ActionForms of Action Legislative Action Administrative Action Quasi-Judicial Action

SLAPP SuitsSLAPP Suits Strategic Lawsuits Against Public

Participation (SLAPP) Used by developers to seek damages

against communities that fight their projects

Pome v District Court – First Amendment defense

Several states have passed anti-SLAPP statutes protecting the right of citizens to petition the government without fear of retribution

MediationMediation Used as an alternative to law suits

because it is less time consuming and more cost effective

Process guided by neutral third party to reach consensus in resolving dispute

Does not necessarily result in a binding decision

Most useful in cases where parties want to work together to settle the dispute

Legislation and Legislation and Administrative ActionAdministrative Action SSZEA empowers the legislative

body of a locality to zone Legislative bodies have the power

to adopt and amend zoning ordinances Required by the SSZEA to appoint a

zoning commission to make recommendations

Delegation to Delegation to Administrative BodyAdministrative Body SSZEA allows delegation of power

to an administrative body by establishing a board of adjustment.

Board of adjustment/appeals has the power to: Hear and decide appeals, exceptions

and variances.

Delegation to Property Delegation to Property OwnersOwners Provides an opportunity for those

residents most directly impacted by project to make decision

Allows legislators to avoid making unpopular decisions

Has the potential of subjecting community to arbitrary whims of a select few

Raises due process concern

Initiative and Initiative and ReferendumReferendum In some states the electorate can

use initiative and referendum powers to carry out or veto zoning changes Concern that ballot box zoning masks

illegitimate exclusionary zoning, makes planning superfluous, and undermines due process

City of Eastlake v Forest City City of Eastlake v Forest City EnterprisesEnterprises

Amending the Zoning Amending the Zoning OrdinanceOrdinance SSZEA – “regulations, restrictions, and

boundaries may from time to time be amended, supplemented, changed, modified, or repealed”

Amendments must be in accordance with the comprehensive plan

Initiated by property owners, government officials, or legislative bodies May be procedural or substantive Site-specific Requires public notice

Grounds for RezoningGrounds for Rezoning Comprehensive plan differs from existing

zoning Interim zone Along boundary of adjacent zone Convert nonconforming uses, special uses

and variances to permitted uses Change in conditions from last zoning Public interest Existing zoning unreasonably burdensome Robinson v Los AngelesRobinson v Los Angeles

Legislative or Legislative or Quasi-Judicial ActionQuasi-Judicial Action Zoning changes considered legislative

acts with presumption of validity Unless arbitrary and capricious Change and mistake rule

Some courts have held that rezonings are quasi-judicial Shifts burden of proof and subjects action to greater scrutiny

Fasano v Board of County CommissionersFasano v Board of County Commissioners

Spot ZoningSpot Zoning Most frequent charge levied against

rezonings Occurs when zoning power is applied to a

small area in a way that is different from the surrounding area

Term is legally neutral but used to convey negative sense that rezoning act is invalid

Must be in conformance with comprehensive plan and serve public interest

Bartram v Zoning CommissionBartram v Zoning Commission

Contract ZoningContract Zoning Government and landowner enter into a

private agreement as to how zoning power will be exercised

Agreements usually based on conditions Example: rezoning in exchange for public

park Illegal in most areas because zoning

power should be exercised for public good not as a bargaining chip

Tests of ValidityTests of Validity Validity lies in whether the court

feels that the rezoning serves the public interest

Conditional zoning v Contract zoning v Incentive zoning

Bilateral v unilateral contract decision

Church v Town of IslipChurch v Town of Islip Dacy v Village of RuidosoDacy v Village of Ruidoso

Piecemeal ZoningPiecemeal Zoning Uniformity

VariancesVariances An administrative authorization to use

property in a manner otherwise not allowed by the zoning ordinance

Considered only when zoning requirements result in practical difficulties or unnecessary hardships

Two kinds: Area variances Use variances

Area and Use VariancesArea and Use Variances Area variances usually involve lot

size and shape and building location issues.

Use variances concern uses inconsistent with permitted uses by right

StandardsStandards Vary among enabling acts Generally require four parts:

The land cannot yield a reasonable return under current zoning;

Landowner’s problem is unique; Variance will not alter character of

neighborhood; Variance is not contrary to public interest Topanga Assoc. v County of Los AngelesTopanga Assoc. v County of Los Angeles

Self Created HardshipsSelf Created Hardships Occur in two situations:

Owners who build in violation of zoning law and then seek variance based on hardship of removing illegal structure

Person who purchases land with knowledge about how it is zoned then seeks a variance based on hardship of compliance

Reasonable ReturnReasonable Return Before variance can be granted on

the ground of unnecessary hardship must show that land cannot yield reasonable return Not whether land is more valuable if

granted variance Takings test – no economically

viable use

Characteristics of the Characteristics of the PropertyProperty

Characteristics that are unique or unusual to the property must cause the hardship for the variance

Widespread problems are better solved through rezoning

ConditionsConditions Can grant variances with conditions to

prevent or mitigate adverse effects Conditions must relate to property not

applicant Typically include landscape buffers,

screening, height limits, off-street parking

Conditions on variances run with land Cannot be used to exact land for public

use if no nexus exists