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Thread: Conditional zoning for ROW

  1. #1
    Cyburbian Budgie's avatar
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    Conditional zoning for ROW

    The City Attorney and I are on a crash course towards eachother on a situation where he wants to request dedication of a vacated ROW as a condition of receiving zoning approval. Only the ROW from the original plat was vacated, not the lots and easements, otherwise I could request a replat and require ROW dedication. In my mind, this is clearly conditional zoning where a quib-pro-quo is involved. Have you guys run across any on-line materials that clearly discuss the legal issues involved with this particular type of conditional zoning?
    "And all this terrible change had come about because he had ceased to believe himself and had taken to believing others. " - Leo Tolstoy

  2. #2
    Cyburbian
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    Budgie, obviously we all work under different enabling legislation but it seems perfectly reasonable to me if:

    1. Your transportation plan anticipates the need for this road to be widened and or

    2. The rezoning creates the need for the road and thereby the necessary right of way or even

    3. The additional right of way helps mitigate the impacts of the change in land use/rezoning.

    And I am sure there are other reasons...

    I guess my point is contract zoning is not necessarily illegal...

  3. #3

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    I don't see anything wrong with this as a condition of approval IF, as has been pointed out, it is consistent with your town plan. That is not contract zoning, it is implementing the plan.

  4. #4
    Cyburbian Cardinal's avatar
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    I'll put aside my question of why the city now wants back a ROW that it vacated. More or less, I agree with gkmo62u and Lee. I would not object so long as the request is consistent with the plan. This is especially true if it is going to create zoned parcels inconsistent with the intent of the plan or of the subdivision ordinance. The only objection I might have is if the owner intends to replat, and the location of the road might be problematic as currently platted. I would then suggest the replat occur first.
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  5. #5
    Cyburbian
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    You asked for materials available online. You may want to check out Brian Ohm's discussion at http://www.lic.wisc.edu/shapingdane/...hap6_2-5-2.htm

    It has Wisconsin-specific references, but may provide you with some of what you are looking for.

  6. #6
    Cyburbian nerudite's avatar
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    I somewhat disagree with Cardinal, Lee and gkmo62u. I personally would have a hard time asking for abandoned ROW dedication after something was already 1) zoned and 2) subdivided. If sometime after those original approvals occurred, the City abandoned the ROW, then I think it's up to the City to buy that property back (or trade for other property, etc).

    Also, there has to be a better mechanism for a condition than zoning approval, such as another subdivision or site/development permit, etc? I've worked in three states and a province, and I don't recall conditioning zoning as a normal practice.

    If, however, your state allows for conditioning of a zoning, I guess I would have one circumstance where I'd condition a zoning request: if the zone would be allowing for a higher intensity of use and would require the need for the ROW for some transportation-specific purpose, or possibly due to additional fire department access. I'd probably point to a trip generation study, UFC codes, etc. Otherwise, if it's a similar or less intense zone, I think it would be pretty hard to justify tacking that condition on a zoning request after the ROW was abandoned.
    Last edited by nerudite; 10 Apr 2005 at 4:01 PM. Reason: terrible spelling

  7. #7
    Cyburbian Budgie's avatar
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    Kansas is not a strong Comp Plan state.
    "And all this terrible change had come about because he had ceased to believe himself and had taken to believing others. " - Leo Tolstoy

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