Presentation on theme: "Relief and Special Instruments The Basic Mechanics of Changes, Permits, and Special Approvals."— Presentation transcript:
Relief and Special Instruments The Basic Mechanics of Changes, Permits, and Special Approvals
Pepsi, Popcorn and Other Antics At A Public Hearing
Pendley v Lake Harbin Assoc The complaint by citizens of the Lake Harbin Civic Association alleges that three rezonings by the County Commission were null and void. The Commissioners of Clayton Co., Georgia scheduled 36 hearings to begin at 7:30 PM 1,200 – 1,500 hundred people came and the commission room holds about 50 persons The hearings did not end until about 3:30 AM
Imaging This! People were packed so tightly in the hearing room and in the hall that they could not move One person showed up at 7:30 and the room was already so tightly packed that it took him ½ hour to find a place to stand There were no microphones so nothing could be heard About 100 people were crammed into the hearing room that would accommodate 50 people
Trial Court The court finds that conducting the county business of zoning after midnight and into the early morning hours, and on a day other than as previously advertised, and in one of the small public meeting rooms in the courthouse where only a small number of the approximately 1,200 to 1,500 people present had access, was unreasonable to the extent that the general public was deprived of an effective, meaningful public hearing
Fairness, Procedures, And Other Nastiness Conflict of Interest? The heart of the principle of due process is “fairness.” When does a rezoning action become so unfair that it becomes necessary for the court to invalidate the process to protect the individual?
McVoy v Township of Montclair St. Luke's Episcopal Church applies for a variance to permit the Church to use its rectory as a boarding house for seven to nine senior citizens, contrary to the uses permitted in the R-1 One-Family Residence Zone where it is located The variance also permits the Church to provide only five off-street parking spaces instead of the eight required by ordinance for the proposed use. The Board of Adjustment approves the variance
The Controversy Some objectors expressed resentment because the Church had failed to advise and consult with its neighbors until it was required by law to give notice them in order to obtain the variance. New Jersey law states that: “No member of the board of adjustment shall be permitted to act on any matter in which he has, either directly or indirectly, any personal or financial interest. Two members of the BZA were also members of the Church Board.
The Trial Court The two BZA members stated that they felt pressured into giving their consent because a large number of residents, eager to be heard, had assembled for the hearing and if the two Board members did not participate, the hearing would have had to be postponed to obtain a quorum. The trial court rules that the decision was valid since the two members of the BZA disclosed their church membership before the hearing began
Appeals Court The Board Members claim that their membership in the church did not influence them in any way. But, the Court Said that: “It is the existence of such interests which is decisive, not whether they were actually influential” Concern for the impartial exercise of quasi-judicial authority, in appearance as well in fact, requires that where a member of a board of adjustment must disqualify himself in a matter because of a conflict of interests, the disqualification is absolute and cannot be waived
Manookian v Blaine County The issue in this case is whether an Idaho law prohibits a member of a planning board or zoning commission or a member of the county board of commissioners from taking part in the zoning process if they are owners of or have an interest in property that is the subject of the rezoning
The Law in Question A member or employee of a governing board, commission, or joint commission shall not participate in any proceeding or action when the member or employee or his employer, business partner, business(,) associate, or any person related to him by affinity or consanguinity within the second degree has an economic interest in the procedure or action. Any actual or potential interest in any proceeding shall be disclosed at or before any meeting at which the action is being heard or considered..
The Players The alleged conflict of interest in question centered around the participation in the zoning process of two men, Robert Gardner and Nick Purdy. Robert Gardner was a member of the Blaine County Planning & Zoning Commission and subsequently, in January, 1983, became a member of the Blaine County Board of County Commissioners. Nick Purdy was at all times relevant herein a member and chairman of the Blaine County Planning & Zoning Commission.
The Background Idaho Power needs a conditional use permit to construct their line This line would run through land owned by the Purdy’s and Gardner’s. The Power Company had already purchased all the necessary easements except one from Gardner From the beginning, the Purdy’s and the Gardner’s had objected to using their property for a power line route
The Different Route Public hearings are held before the planning commission. A conditional use permit is issued but for a different route that avoids the Purdy’s and Gardner’s property Gardner votes and Purdy did not. Yet, Purdy participated fully in the discussion The new route is significantly more expensive for Idaho Power and is, in part, environmentally destructive
The County Commission The County Commission approves part of the route but approved a new route that avoids environmentally sensitive areas The new route runs through the land of Manookian By the time the decision really heated up Robert Gardner has been elected to the County Commission and no longer serves on the Planning Board
The Final Hearing At the final hearing Gardner admits that he has a conflict of interest, did not vote, but fully participated in the hearing Manookian files suit and the district court invalidates all the actions because Purdy and Gardner have conflicts of interest
Appeals Court If you are barred from participating does this mean that you just cannot vote? No, the Court says, it means that you cannot participate in any way In adopting this law the legislature acted to assure that, consistent with our democratic principles, only impartial and objective persons make decisions affecting other persons' liberty and property.
To Which Purdy/Gardner Respond Well, the economic impact on this property was so slight that we didn’t think that it was necessary to declare a conflict of interest “Bull”, says the court, the line created a physical and visual impact that could preclude the land from being developed for many things – such as residences
The Result They had a conflict of interest – pure and simple All the proceedings, hearings, and decisions are void Start over again and pay the fine 1.
Christian Gospel Church v City of San Francisco This case is about an alleged conspiracy that prevented the Christian Gospel church from receiving a conditional use permit It begin when the Christian Gospel congregation applied to use a single family home in a residential neighborhood as a church, place for bible study, and meeting room. This would include about 50 people on Sundays, Sunday evening, and Weds. evenings
The Opposition A neighborhood organization, the Greater West Portal Neighborhood Association opposed the granting of a conditional use permit to the Church and circulated a petition in the neighborhood Vicente calling for a denial of the permit. The petition was signed by 190 residents. The Association was well organized and vigorously opposed the permit
Reasons Why The Association Opposed Too many churches already There are vacancies in nearby commercial areas that are more suited This will not maintain the neighborhood characteristics There is a housing shortage already The church would create additional traffic hazards dangerous to families The noise created would disturb the quiet of the neighborhood setting
The Hearing http://go.to/gospeltent http://go.to/gospeltent The Planning Commission denies the permit and the Congregation is really upset The Congregation sues and says that the Association The Church claims that the Association conspired to violate the Church's civil rights by circulating a petition, testifying before the Planning Commission and writing letters to the editor. The Congregation says that the Association is not entitled to 1 st Amendment rights because they defamed them 1.
Decision The court examines the 3 prong test of thee Free Exercise Doctrine and finds that the City did not interfere with a tenant of faith Also, the court examined the pattern of condition use permits issued to churches that requested to use homes and found that most were denied – this blew the equal protection claim of the Christian Gospel Church
The Court’s Analysis Contrary to the arguments of the Church, neighborhood opposition to the granting of a conditional use permit is not unlawful and should be considered by the Planning Commission. The Church claims that circulating a petition against them violated the right – but the court hold that: the action of the neighbors "falls within the first amendment's protection of the right to petition the government for redress of grievances."
Conclusion The court concludes by saying that the citizens were doing what they were supposed to do in a democracy – taking part in their governmental decision making duties and not drumming up a ‘Slap Suit. They did not conspire to deprive the Church of its constitutional rights – they simply exercised their 1 st Amendment rights to freely enter into the business of local government
Parishioners Speaking in Tongues After Decision
The Plan The Plan, The Plan Who Has a Plan What is the Plan Is it Written Down Where Is It How Big What Does it Mean
Do You Have To Have a Plan From the very beginning in the 1920s our enabling legislation has always demanded that a “comprehensive plan must be adopted” prior to the adoption of regulations However, very little is said about whether or not you have to follow the plan in applying the regulations
Meaning of the Plan Charles Haar says that the plan is like an impermanent constitution Its meaning is ironclad but it may be freely amended
Baker v Milwaukie Oregon In1968, the City of Milwaukie adopted a zoning ordinance which designated plaintiff's land and the surrounding area "A 1 B" (residential apartment- business office). This category allowed 39 units per acre. On November 11, 1969, a comprehensive plan for the City of Milwaukie was adopted by the Planning Commission. This comprehensive plan designated plaintiff's land and the surrounding area as high density residential, allowing 17 units per acre. On January 12, 1970, the Milwaukie City Council passed a resolution adopting the above plan as the comprehensive plan for the City of Milwaukie.
The Actions On February 27, 1973, against staff recommendation, the Milwaukee City Planning Commission granted a variance authorizing a proposed 95-unit apartment complex near Baker’s property with one and one-half parking spaces per unit rather than the required two. Baker says “wait a minute,” should not the variance conform to the Comprehensive Plan that calls for 39 units per acre? The City says that that there is no obligation to conform the zoning ordinance to the comprehensive plan
The Hearing Makes The Rounds The trial court rules for the city saying that the plan is just that – a plan and not the controlling instrument for land use Appeals court also finds for the City The Oregon Supreme Ct. says that the position of defendants evidences a fundamental misunderstanding of the relationship between planning and zoning. Following from Fasano it has been determined that the basic instrument for controlling land use is the comprehensive plan
What About Zoning? Zoning is not planning! It is the means for bringing the plan to effectuation The comprehensive plan is not merely a guideline which may be followed or disregarded at will; although the zoning ordinances establish the detail they must do so within the policies established by the comprehensive plan. Where did you guys go to planning school! The Plan is like a Constitution. You can change it but you damn well follow it until it is amended
What to Do? The City of Milwaukie, upon adopting a comprehensive plan, had a duty to implement that plan through the enactment of zoning ordinances in accordance therewith In summary, we conclude that a comprehensive plan is the controlling land use planning instrument for a city. Upon passage of a comprehensive plan a city assumes a responsibility to effectuate that plan and conform prior conflicting zoning ordinances to it. We further hold that the zoning decisions of a city must be in accord with that plan and a zoning ordinance which allows a more intensive use than that prescribed in the plan must fail.
The City After Learning That the Plan is Important If you can’t learn to do something well; learn to enjoy doing it poorly
Larimer County v Condor Conder and Sommervold propose to develop a 560.76 acre parcel in the southern part of Larimer County into the "Windemere Acres Subdivision" (Subdivision). The proponents seek to divide the property into fifty-six lots, generally ranging in size from 2.3 to 5.4 acres, with nine perimeter lots larger than thirty-five acres. The comprehensive plan designates single family dwellings with minimum lot area of 100,000 square feet in the FD “Farming District” (about 2 ½ acres)
Larimer County, Colorado Estes Park Fort Collins Loveland Rocky Mountain National Park Front Range Theodore Roosevelt National Forest
The Proposal The applicants point out that their desire is to keep this area rural and attempted this by surrounding the sub-division by 35 acre parcels. These parcels will have recorded covenants which prohibit more than one residence, and are also controlled by the subdivision's architectural control committee in regard to fencing, home size, and construction of any out buildings.
Planning Commission Review Planning Commission recommends that the Larimer County Board of County Commissioners (Board) deny the application. The Planning Commission adopted the Planning Department's findings that "[t]he proposed Preliminary Plat is not consistent with the Larimer County Land Use Plan in location of the proposed use, intensity of use, design, consolidation of services, and maintenance of rural character."
Applicant Re-Submits The applicant now includes the 35 acre tracts in the subdivision and says that the lots are an average of 10 acres in size The Planning Commission again rejects saying that the project is located in a rural agricultural area of Larimer County. The proposed subdivision appears suburban rather than rural in character. The Larimer County Land Use Plan guidelines for rural development emphasize low-intensity design that consolidates services and maintains large blocks of open space
County’s Contention This is what rural development looks like
Windemere Site Summer, 2002 South of Fort Collins Colorado
Trial Court The court held that "reliance on or reference to the comprehensive land use plan" was an appropriate basis for the Board's decision The court rejects the proponents' constitutional due process claims and held that the developers had adequate notice of the need to comply with the master plan provisions and that the plan contained sufficiently specific guidelines "within the ordinary understanding of reasonable people."
The Appeals The Appeal court reverses noting that they believe that the master plan is advisory in nature The Colorado Supreme court holds for the County. They note that the county’s master plan included language that made it compulsory that all subdivision approvals must be in accord with the plan
The County’s View Although the “Farming District” allows single family homes on 100,000 sq. ft this proposal is a suburban type development and is not intended to further the goals of farming or ranching The conclusion is that the “plan rules”
Class Questions What type of development could have been proposed that might be accepted by the planning commission? Is the Farming District Zone poorly drawn?
Special Instruments The Conditional Use Permit The Special Use Permit The Exception
The Conditional Use The original framers of zoning realized that land use was a complex social issue and that there would be a number of general changes that are necessary in planning and regulation at the local level To put it simply: there is such a richness and diversity in local land use that it is impossible to produce a blueprint zoning a zoning ordinance that covers all the necessary considerations for effective community regulation.
Why Conditional For instance, most local planners agree that providing services on the neighborhood level (fine grained planning) is a good idea Many of us would like to see low level service, such as day care, medical centers, commercial convenience, and personal services integrated within our neighborhood patterns This is not to say that day care centers (perhaps for 12 children or more) or the local 7-11 Store should have the freedom to locate anywhere and under any conditions in our residence districts
Orphan Uses Another example are the "orphan uses." These are the land uses which everyone needs but no one wants We can find examples of orphan uses in every community - funeral homes; asphalt batch mixing plants, recycling centers; motor-cross motorcycle racing Most agree that funeral homes are necessary. But planners, if they are to satisfy public demands, would be forced to relegate funeral homes to heavy industrial districts so as to keep them out of sight and mind. This is, of course, inappropriate regulation and land use planning.
How It Works A good work-around solution for neighborhood integration, orphan uses, and similar land uses is to construct a land regulatory control instrument that grants permitted use status to these enterprises if they meet certain, and often strict, conditions. For instance, a day care facility might be listed as a conditionally permitted use in a single family neighborhood district if: Facility employees a residential design Continued on next page
Further Conditions Services no more than 15 persons with no more than 3 employees. Provides a safe and efficient means of client drop-off (cannot be on a collector street). Obtains and retains state licensing. Operates for no more than 12 hours per day. Maintains a dense screening at the side and rear lot lines
The Big Problem Because zoning is local language, the conditional use is often hybridized to fit local needs and perception In some jurisdictions, such as Kansas, the conditional use permit is optionally reviewed by the Planning Commission - not the BZA. Frequently, conditions to obtain this use are not listed in the zoning ordinance and the BZA is required to investigate and state the conditions. In some rural ordinances, nearly any use not listed as permitted can be considered for a permit, making the conditional use equivalent to a change in zone - or spot zone.
Cyclone Sand & Gravel v Ames, Iowa In 1980, the landowners purchased two adjoining tracts of land totaling approximately 80 acres The property lies in the flood plain of the Skunk River and is designated as an Agricultural/Greenbelt area under the city's land use policy plan. The tract lies adjacent to other farmland and an auto salvage yard and within several hundred feet of Duff Avenue, a street that is fronted by several businesses and a shopping mall. Although the land is now being used for row crops, it was specifically purchased for the purpose of operating an extraction pit and developing the land commercially.
Ames BZA Action The BZA denies the conditional use permit. The Zoning Ordinances specifies a number of criteria that must be examined before the permit is affirmed or denied Cyclone contends that conditional use permits are vague, overbroad and confiscatory because they give the Zoning Board unbridled discretion and thus permit arbitrary and unreasonable decisions in violation of equal protection and due process.
The Criteria a) Be harmonious with and in accordance with the general principles and proposals of the Land Use Policy Plan of the City of Ames. (b) Be designed, constructed, operated and maintained so as to be harmonious and appropriate in appearance with the existing or intended character of the general vicinity and that such a use will not change the essential character of the area in which it is proposed.
Criteria (c) Not be hazardous or disturbing to existing or future uses in the same general vicinity and will be a substantial improvement to property in the immediate vicinity and to the community as a whole. (d) Be served adequately by essential public facilities and services as highways, streets, police, fire protection, drainage structures, refuse disposal, water and sewage facilities, or schools.
Criteria (e) Not create excessive additional requirements at public cost for public facilities and services. (f) Not involve uses, activities, processes, materials, and equipment or conditions of operation that will be detrimental to any person, property or general welfare by reason of excessive production of traffic, noise, smoke, fumes, glare, or odors. (g) Be consistent with the intent and purpose of the zoning district in which it is proposed to locate such use
Appeals Court Viewing the ordinance as a whole, we do not find it unconstitutionally vague. Cyclone does not claim the ordinance constitutes an unlawful delegation of legislative authority to the Board but rather contends that it grants unbridled discretion in the decision making process.
Decision While the ordinance does rely on general standards, these guidelines are designed to allow the Board to make findings and determinations that are appropriate to the peculiar circumstances presented by each special use application The ordinance requires a proposed use to conform to the general land use policy of the city, generally fit in with existing property uses in the vicinity and not be detrimental to other property owners or the general public. So limited, the ordinance is sufficiently specific since zoning standards need not be so detailed as to eliminate entirely any element of discretion from the Board's decision
Amoco Oil v Minneapolis Amoco Oil applies for a conditional use to operate a 24 hour convenience store and gasoline sales The Zoning Ordinance permits this use but the conditional use permit was to operate between the hours of 11:30 PM and 6:00 AM
Review The staff at the Minneapolis Planning Department recommended denying the application for twenty- four-hour service for two reasons. First, the city's comprehensive zoning plan had designated the area as a "neighborhood retail" area. Consequently, the twenty-four-hour operation would be contrary to the intent of the comprehensive plan. Second, because of the noise, lights, traffic and activity that would exist all night, the staff felt the twenty-four-hour operation would be injurious to the single family residences that are located immediately to the west of the facility.
Amoco Replies We will fix it! Specifically, Amoco agreed to build a wooden fence between its property and its neighbors, install special lights, relocate the curb cut on 54 th Street to avoid conflicting traffic flows, and limit gasoline deliveries and operation of the car wash to between 7:00 a.m. and 10:00 p.m. These changes apparently satisfied the neighbors
The Court Says While appellant presented all this evidence to show that the operation would not adversely affect The city presented no evidence that the operation would increase traffic, light, or noise in the area. Instead, it relied extensively on the residential character of the neighborhood in which appellant wishes to locate its facility.
Wait A Minute The court says you misunderstand the nature of the conditional use permit If the applicant can meet the conditions set down – then the permit should be granted You can’t just make up conditions – they need to be stated in the ordinance Saying the it “does not conform” does not cut it You can’t say the neighbors have to all like it
Pollard v Palm Beach Applicant applies for a SPECIAL EXCEPTION in a residential neighborhood to permit a congregate living facility for the elderly At the hearing the neighbors threw a fit saying that it would cause excess light, traffic, noise pollution, and generally impact he area as a whole
Inner Workings The applicant meets all the requirements for the permit Retained a residential design Parking to the rear Building was staged with broken lines to retain a “home” rather than an apartment appearance Landscaping was OK But the Board Said that it would adversely impact the public interest
The Court Says Here Are the Rules The applicant is required to “prove” that they meet all the necessary criteria to obtain the permit The public on the other hand does not have to prove anything. They can make any accusation and yet the Board does not hold them to the same standard 'Public notice of the hearing of an application for exception... is not given for the purpose of polling the neighborhood on the question involved
The Special Permit Some land uses are truly extraordinary - either because they are very infrequently used, are temporary in nature, or have characteristics that could be exceptionally devastating to nearby properties We can trace the permit back to the first zoning ordinances in the 1920s. It is almost always issued by the BZA Most authorities consider it a license to use property in a certain manner for a certain length of time - rather than an vested permit. Like any license, it can be revoked for misuse, reviewed and inspected frequently, and set to run only for a limited amount of time.
Limitations v Conditions Conditions are the hallmark of the “conditional use permit” A conditional use is a permitted use if all conditions for operation are satisfied Limitations are the hallmark of the special use. Prior conditions are often not known Each case is unique and will generate unique circumstances. Operational limitations serve to move the special use closer to compatibility with its surroundings
Background As always, there is confusion on the local level as to the proper use of this permit. Some will use it as conditional use, others will call it an exception or special exception. It is also known as a "special use permit." It is properly used in the following manner Permit public facilities and utilities in all districts A a license to use property for a certain amount of time such as to convert as single family home to care for elderly parents during their lifetime
Candidates for Special Permits Nuclear Power Generation Station
Perhaps There Should Be A Special Permit for Taste
Further Observations The temporary aspect of this permit heightens it potential for misuse. Many small communities, desiring to accommodate a new, but controversial uses, will mollify neighbors by issuing a special permit with the understanding that it can be revoked if "things don't turn out as promised." In the rarest cases, the special permit is a case-by- case designer tool. Consider the case of a low level nuclear waste dump. Not only is it exceptionally controversial, but also, few planners would have the foresight to contemplate the criteria necessary to make ordinance provisions governing its location
An Example Some uses have tremendous potential for interfering with the enjoyment of nearby property. A classic example is a rock or gravel quarry. These facilities, although essential for natural resource extraction, are loud, frequently run 24 hours a day, use explosives, and produce excessive amounts of dust. The special permit limits their duration by authorizing operations for a set amount of years, and employs conditions to limit their impacts. Operations are typically reviewed each year to determine if they must be terminated, or if additional conditions need to be imposed
Perry v Hawaii County Shield-Pacific Limited filed an application for a special use permit to operate a quarry located in a district zoned for “agricultural purposes” The special use permit must be approved by the County of Hawaii and the State Law Use Commission The subject property is an old quarry site last used in the 1920s The application to the Director of Planning of Hawaii County required that the applicant submit 27 items ranging from a site plan, a road plan to an EIS
The Hearings Hawaii County voted to issue the special use permit but with stringent “limitations” to use: Reduce the area of operation from 65 to 25 acres Operation between 7:00AM and 5:00PM weekdays Portable machinery and buildings – no construction A five year time limitation on the special use Those that attended the meeting in opposition strongly objected that the operation would ruin their rural lifestyle and that earthquakes, floods, flies, pestilence, and plagues of a biblical nature your follow
Future Hearings and Findings Hawaii County represents and the opponents appears before the State Land Use Commission The Commission approved the special use permit without modification The adjacent landowners brought suit alleging that the issuance of the special use permit exceed the authority of both the County and the State Commission Much agony and grief followed as the quarry went into operation while the matter awaited trial
Leaders of the “Stop the Quarry” Opposition Group
The Courts The trial court found for the County and the Land Use Commission concluding that the suit lacked merit The Appeals Court reversed noting that the County exceeded its authority and discretion in issuing a special permit to allow operation of the quarry
Hawaii Supreme Court The Hawaii Supreme Court reversed noting that the Hawaii National Planning Lands Act designates nearly 80% of the Islands as Agricultural Lands The legislature made it quite clear that the Counties and the State Land Use Commission could issue discretionary permits for limited activities on these lands
Analysis The commission found the proposed use was consonant with the objectives of the Land Use Law and the county zoning code, it would be a reasonable use of the land involved, it would not adversely affect surrounding property, it would not substantially alter the essential character of the land or the use to which the land was then being put, and it would be the highest and best use of the land involved. The operational rules were consistent with the limited nature of the use that allows it to run in the form of a license for a period of time
Conclusion The court notes that the permit grants a privilege and not a property interest or right. A privilege may be suspended or revoked at will for a violation of the limitations of operation. A privilege is personal, it cannot be transmitted from owner to owner and cannot established a non-conforming use right By comparison, a conditional use permit is a property right of permanent duration that passes from owner to owner as long as the established conditions are adhered to
Finally, The Exception An exception, under the general rule, is not an instrument. Rather, it is a statement in the ordinance "excepting" one or more uses of the land or buildings for the normal ordinance requirements: Maximum Height: In the M-1 district, no building may exceed a total height of 48 feet, except that, buildings supplied with a NFPC approved automatic fire suppression system may be erected to a total height of 60 feet
More Examples R-1 Single-Family Residence District - Permitted Uses: single-family residential structures; schools; churches; utility substations; and, listed home occupations - except that, a funeral home shall be permitted on any lot with a front width greater than 95 feet with a depth greater than 90 feet, provided that no such funeral home shall locate with 1000 feet of another, existing funeral home
However In many zoning ordinances the exception is an instrument of relief. The BZA is required to review all exceptions to insure compatibility with their surrounding prior to the building permit. Furthermore, some ordinances employ the exception as a conditional use and simply substitute one term for another. To confuse matters, we have encountered a few ordinances that use the term special exception and substitute it for a special use or even a use variance
Examples “To provide minor variations from the zoning ordinance to avoid the lengthy appeals process” – Chicago No adult entertainment establishment shall be established except in the (general commercial) district and except subject to the following limitations: (1) A minimum of one thousand feet (1,000') from any other adult entertainment business; (2) A minimum of one thousand feet (1,000') from any residential zoning district – Sonoma County
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