The Nature of Zoning Changes

1. The Mechanics of Land Use Procedure – J Keller 2006-07 The Nature of Zoning Changes Procedure,Vesting and Standing

3. 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

4. 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

5. 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

6. 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

7. Amendment – Meeting Common Arch. Standards Longaberger Basket Building – Corp. Headquarters in Newark, Ohio

8. 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

10. The Zoning Map Rural Residential Village Commercial Rural Conservation Suburban Residential

11. 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.

12. 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

13. 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

14. 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

15. 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

16. 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)

17. More Ugly Building Awards

18. 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?

19. 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.

20. 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

21. 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

22. Guess Who Got Involved

23. 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

24. 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

25. 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.

26. 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

27. 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

28. 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.

29. 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.

30. 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

31. Golden – The View

32. 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.

33. Golden - The Logo

34. Present Site Use

35. Golden – Guess What Came

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

37. 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

38. Site Map Low to medium density residential Commercial Development 127th Street Disputed 40 acres 137 acres of single family residential Commercial and Light Industrial 20 acres of medium density residential Antioch Road

39. 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

40. 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

41. The Site Map Again Low to medium density residential Commercial Development 127th Street Disputed 40 acres 137 acres of single family residential Commercial and Light Industrial 20 acres of medium density residential Antioch Road

42. 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.

43. 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.

44. 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

45. 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

46. 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

47. Wide of the Mark

48. Even Wider

49. Zoning At The Polls Referenda as a Method of Zoning Change

50. 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.