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

Forms of Action Legislative Action Administrative Action Quasi-Judicial Action

SLAPP 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

Mediation 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 Administrative 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 Administrative 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 Owners 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 Referendum 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 Enterprises City of Eastlake v Forest City Enterprises

Amending the Zoning Ordinance 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– “regulations, restrictions, and boundaries may from time to time be amended, supplemented, changed, modified, or repealed” Amendments must be in accordance with the comprehensive plan Initiated by property owners, government officials, or legislative bodies May be procedural or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 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 Angeles Robinson v Los Angeles

Legislative or Quasi-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 Commissioners

Spot 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 Commission Bartram v Zoning Commission

Contract 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 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 Islip Church v Town of Islip Dacy v Village of Ruidoso Dacy v Village of Ruidoso

Piecemeal Zoning Uniformity

Variances 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 Variances Area variances usually involve lot size and shape and building location issues. Use variances concern uses inconsistent with permitted uses by right

Standards 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 Angeles Topanga Assoc. v County of Los Angeles

Self 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 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 Property Characteristics that are unique or unusual to the property must cause the hardship for the variance Widespread problems are better solved through rezoning

Conditions 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