Does this constitute spot zoning? What do you think?

[Earthy girl]

The underlying zoning on a parcel is two-family residential. However, the property has a special permit to allow for an non-profit office that was approved in the 60s and the existing office building was built at that time. It has been used for a non-profit office since that time. Now the owner wishes to rezone to use the property for a for-profit office, which they cannot do with the special permit.

The property next door also has a special permit for a non profit office with an underlying single-family residential zoning. This structure was also built in the 1960s and has always been used for a non-profit office. The entire block constitutes other institutional type uses (church, nursing home), an apartment building, a group home, and duplexes. The rezoning to office would just allow what has essentially been permitted on the property for 50 years. This is a transitional area located between commercial and single-family residential.

[Joe Iliff]

The prohibition on spot zoning is all about avoiding special treatment. It becomes a problem where out of a group of several properties all basically the same, one has a more generous zoning than the others. This is the "spot", a property that matches all the others by the criteria of the comp plan and ordinance, but is being zoned differently.

If the proposed zoning for a for-profit office matches the comp plan, it could be approved. If the jurisdiction would approve the same rezoning for the other similar properties near you, they can approve it for you. If all the properties are being treated the same, it's not spot zoning.

[cmielke]

I would think the rezoning would be allowed. You're not really changing the use of the property, which is what zoning is supposed to regulate, so there is no problem there.
And the fact that most everything else on the block is allowed for-profit use seems to place an unnecessary hardship on the property restricted to non-profit office use or two-family residential.

[big_g]

A sticky situation caused by inital errors in the way the special use permitting was issued. The fact that the special use application was allowed to carryover to allow an clearly incapatible construction of an office building has lead to essentially a permanent modification of use of the parcel. Had the permit allowed an existing residential structure to be used without modification of the building type for the parcel I think the actions of the approving body would be understandable and within bounds of a special use. However, given the permanent character change the office building creates, and has apparently been used as further precedent for other incompatible zoning uses now creates the effect of an "island" of functional incompatible zoning and has over the 50 years now lead to the creation of a transition zone that might not have developed if the construction types had remained consistent with a residential use.

It is spot zoning that should now be corrected as part of an update to a comprehensive existing land use element in an updated comprehensive plan.

[mendelman]

I would venture to say that it is not really spot zoning, due the long term nature of the established use (non-profit office is functionally no different that for-profit office) and the mixed nature of the street it is on would not make it a jarring change from the predominent uses on the street. I would say that the rezoning could be reasonable, provided the new zoning district does not allow for much beyond just office uses.

Do you have minimum zoning district areas? Would this property need a variance from the minimum? Many zoning codes use minimum district areas to mitigate the potentiality of spot zoning.

[btrage]

I think what the comp plan says for this property is probably the most important thing. If the comp plan currently says residential, then maybe you would want to amend the land use plan first just to make sure you're ok.

[mendelman]

I think what the comp plan says for this property is probably the most important thing. If the comp plan currently says residential, then maybe you would want to amend the land use plan first just to make sure you're ok.

Yeah, that would be the best first step.