Relief and Special Instruments

1. Relief and Special Instruments The Basic Mechanics of Changes, Permits, and Special Approvals

2. Part 1- Hearing and Meeting Management Fair Hearings Access Due Process Management Public In formation Qualifications/Conflicts Ethics Dis-qualifications

3. Pepsi, Popcorn and Other Antics At A Public Hearing

4. 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 andthe commission roomholds about 50 persons • The hearings did not end until about 3:30 AM

5. 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

6. The Hearing

7. Reaction to the Hearing

8. 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 numberof the approximately 1,200 to 1,500 people present had access, was unreasonable to theextent that the general public wasdeprived of an effective, meaningfulpublic hearing

9. 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?

10. 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

11. 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.

12. 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

13. 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

14. 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

15. 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”

16. 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.

17. Nick Purdy & Robert Gardner

18. And, of Course, Idaho Power

19. The Background • Idaho Power needs a conditional use permit to construct their transmission line 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

20. 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

21. 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

22. The Final Hearing • At the final County Commission 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

23. 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.

24. 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

25. 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

26. How Far – Pretty Far • How far or strongly can citizens/groups protect against a permit or zone change?

27. 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

28. 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

29. 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

30. The Hearing • 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 1st Amendment rights because they defamed them

31. 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 conditional 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

32. 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."

33. 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 ‘Slapp Suit. • They did not conspire to deprive the Church of its constitutional rights – they simply exercised their 1st Amendment rights to freely enter into the business of local government

34. You Might Say the Church Came to a Dead End

35. Parishioners Speaking in Tongues After Decision

36. 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

37. 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

38. 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

39. Baker v Milwaukie Oregon • In1968, the City of Milwauke 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 Milwauke 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.

40. Milwaukie Oregon One of the 50 best places in America to raise a family

41. 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

42. 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

43. 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

44. 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.

45. The City After Learning That the Plan is Important If you can’t learn to do something well; learn to enjoy doing it poorly

46. Intermission

47. 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)

48. Larimer County, Colorado Estes Park Fort Collins Loveland Rocky Mountain National Park Front Range Theodore Roosevelt National Forest

49. View From Windemere

50. 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.