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Thread: Is a city required to enforce the zoning code?

  1. #1

    Is a city required to enforce the zoning code?

    I have a masters degree in city planning. I became involved in a zoning dispute regarding my own and an adjoining neighbor's property. The neighbor was a politician. The neighbor's property was zoned to allow him more than one dwelling unit, but only if they were attached. Instead he added two detached dwelling units--a cabin/guest house and an apartment over a garage. This was in Colorado.

    I complained about the construction when it was underway but was told that it complied with the zoning. I checked the zoning regs and was convinced that it did not. I filed for injunctive relief but it was ruled that only the city could enforce its own zoning. Not only did they not enforce the zoning but the extra (3) buildings are not on the property tax rolls.

    I was criminally prosecuted for sending emails to the city council complaining about my neighbor's extra buildings. The S.C. of CO recognizes an adjoining neighbor's right to rely on the zoning but the locals did not.

    I was pursued and harassed for requesting that the zoning be enforced. I sold my property and moved away and filed a retaliation claim in federal court. That was dismissed but they wouldn't tell me why. I was imprisoned for attempting to get a hearing in another court.

    This continued to really affect me even though we moved away. Since I have a degree in city planning, it affects my employability and reputation. It really makes me look weird to claim that there are buildings there (visible on Google.maps) that the city and county don't recognize. These three buildings have foundations, one is two stories, and two have central heating and plumbing.

    I was very enamored with the subject of regional and city planning. I really cared a lot about it. My friends and family think that I should just resign myself to the idea that government is crooked and stop being so naive.

    Recently a man burned to death six blocks away in a housing unit without permits.

    Should I just forget about this all or what should I do?

    This is all very disorienting to me. I feel that my years of studying city planning was a total waste of time. In fact, it hurt me because if I hadn't studied city planning, I would have adopted the worldly view, that local government officials are crooks.

  2. #2
    Cyburbian mike gurnee's avatar
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    Google "kay sieverding" before responding to her post.

  3. #3
    Cyburbian Raf's avatar
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    Kay seems to be a great example of why our nation needs tort reforms.
    follow me on the twitter @rcplans

  4. #4
    Cyburbian Plus JNA's avatar
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    Heed mike gurnee warning.


    Her posting here in Cyburbia was on pg 5 #42 (on my computer) when one googles her name.
    Oddball
    Why don't you knock it off with them negative waves?
    Why don't you dig how beautiful it is out here?
    Why don't you say something righteous and hopeful for a change?
    From Kelly's Heroes (1970)


    Are you sure you're not hurt ?
    No. Just some parts wake up faster than others.
    Broke parts take a little longer, though.
    From Electric Horseman (1979)

  5. #5

    My litigation was an example of 42 USC Section 1983 claims

    In Colorado, the S.C. recognized that adjoining property owners have a right to enforcement of the zoning. Mine was denied and that devalued my property. I was injured in my person and I have claims for that. I sued also under diversity. If they disagreed with my facts or my claims, we should have gone to a jury.

    Why don't you just build up your land and ignore the zoning? Basically I had a boundary dispute with the local chief. I claimed statutory rights.

    It's one thing to just build whatever if you choose to buy in an unregulated area. The City of Steamboat Springs last month had 14 full time employees in their planning services department, plus there is a separate combined county-city building department. I calculated they were spending more than $100 per person per year on planning services. They wanted to regulate my flowers and then they let my neighbor add a cabin and almost everything needed for a garage apartment. I looked up on the city web site recently for addressing and it lists the types of buildings it acknowledges. Cabins, guest houses, and garage apartments are not among them. My former neighbor's zone entitled him to a duplex or triplex. Former city planning director Ann Muhme wrote a memo emphasizing that "accessory space" does not mean extra dwelling unit. I wrote to the city and asked if I could build something similar to what he built, as was told no, as were many other people. The fact that the buildings aren't are the property tax rolls, to me, proves bad faith. I wasn't out there complaining that it was 6 inches off, we are talking entire buildings suitable as residences. The plan at the time, as I heard it, was to build a bed and breakfast with an ability for people to bring their horses. This would have really impacted my property.

    As I understand it, the buildings ended up being barely used. It was a Pandora's Box. If time could go backwards, I just don't know what I would have done differently. I relied on the written law.

  6. #6

    607 Standing and Intervention

    (3) any person owning or legally occupying property abutting or confronting a property which is the subject of the land-use decision;

    That was me

    I filed a writ of mandamus to have the zoning enforced. Just like the Act suggests

    614 Standards for Granting Relief
    (1) The court shall reverse or remand the land-use decision under review if the court finds the local government:
    (d) Improperly applied the land development regulations or other applicable laws; or
    (e) Made an unconstitutional decision;
    [(f) Made a land-use decision that is not consistent with the local comprehensive plan as it existed at the time of the development application; or
    (g) Made a decision that is arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.

    However, instead the court ruled that only the local government could enforce its own zoning and that I did not have standing even though I was an adjoining neighbor.

    What should I have done? My lawyer at the time advised me that an appeal was hopeless because of the rapid pace of construction. He said they were unlikely to order a tear down once it was built even if it clearly violated the zoning.

    Here is the latest model code for enabling legislation and it simply does not address the situation of deliberate refusal to enforce the zoning as written. Granted, my situation involved only one street but I've heard about other situations also in which the planners and government officials lie and the courts back up lies. I heard about something similar to my situation involving power plants instead of cabins. How does this enabling legislation address the issues of basically obstruction of land use laws?

    How effective do you think that AICP ethics regulation is?

  7. #7
    Cyburbian Raf's avatar
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    Takin the Bait...oy...

    I am no land use lawyer, and each state is different with there regs, and i know i am egging a troller on, but oh well.. knowing is half the battle right?

    Quote Originally posted by kay sieverding View post
    The neighbor's property was zoned to allow him more than one dwelling unit, but only if they were attached. Instead he added two detached dwelling units--a cabin/guest house and an apartment over a garage. This was in Colorado.
    Does the zoning regulation specificaly say "attached unit" or does it say (like most typical SFR, well at least here in california) "secondary unit". There is a difference. In this case, i am siding with "secondary unit" and probably why it was allowed because guest cabin would be considered the secondary unit and the the additional room or "apartment over a garage" would be considered an additional room since the garage was an existing structure. If it was interpreted this way, completely legal, and well, allowable under zoning law, so you got nothing. Take your NIMBY case away with ya and you have no recourse. Just move away.

    Quote Originally posted by kay sieverding View post
    I complained about the construction when it was underway but was told that it complied with the zoning. I checked the zoning regs and was convinced that it did not. I filed for injunctive relief but it was ruled that only the city could enforce its own zoning. Not only did they not enforce the zoning but the extra (3) buildings are not on the property tax rolls.
    Ok, well, obviously you can be convinced otherwise, but the decision makers thought differently. Was this act an ministerial act (of just pulling the permits if found consistent with zoning law) or was it a discretionary decision (as in a governing body heard an application and rendered a decision? If it was discretionary, you usually (again in ca, may be different elsewhere) have to exhaust all your options first (this includes appeals to City Council/BOS). You obviously were a little late to the game. As for not on the property tax rolls, well has it been even assesed yet? That has nothing to do with the case at hand.

    Quote Originally posted by kay sieverding View post
    I was criminally prosecuted for sending emails to the city council complaining about my neighbor's extra buildings. The S.C. of CO recognizes an adjoining neighbor's right to rely on the zoning but the locals did not.
    Zoning didn't fail you. Your misinterpretation did. Have you even spoke to a planner about how the interpret it?

    Quote Originally posted by kay sieverding View post
    This is all very disorienting to me. I feel that my years of studying city planning was a total waste of time. In fact, it hurt me because if I hadn't studied city planning, I would have adopted the worldly view, that local government officials are crooks.
    Or maybe resign yourself that you misinterpreted the code and evening zoning law. Obviously your years of study haven't really served much if you can't interpret a damn code and basis your facts on plumbing and central heat and air. For Gods sakes, do you think a conversion of a garage is and additional unit? Heaven Help you as a planner.

    Quote Originally posted by kay sieverding View post
    (3) any person owning or legally occupying property abutting or confronting a property which is the subject of the land-use decision;

    That was me

    I filed a writ of mandamus to have the zoning enforced. Just like the Act suggests

    614 Standards for Granting Relief
    (1) The court shall reverse or remand the land-use decision under review if the court finds the local government:
    (d) Improperly applied the land development regulations or other applicable laws; or
    (e) Made an unconstitutional decision;
    [(f) Made a land-use decision that is not consistent with the local comprehensive plan as it existed at the time of the development application; or
    (g) Made a decision that is arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.
    Again, was this act ministerial versus discretionary? Obviously check your code..durr

    Quote Originally posted by kay sieverding View post
    Here is the latest model code for enabling legislation and it simply does not address the situation of deliberate refusal to enforce the zoning as written. Granted, my situation involved only one street but I've heard about other situations also in which the planners and government officials lie and the courts back up lies. I heard about something similar to my situation involving power plants instead of cabins. How does this enabling legislation address the issues of basically obstruction of land use laws?
    And i heard Angelina Jolie's lips aren't real? Gotta love your Hersay. Yes, the sky is falling and planners are all crooks. Look, if you didn't follow the appeal process that is outlined in your muni's zoning code, tough S*it. Call it a life lesson. I am not saying that some crooked things don't happen, but to basically assume it happens everywhere? Come on, you serious? You a planner right? Again, you have to legally exhaust all you avenues, just dont think you can swoop in at 11:55 and think you will stop the wrecking ball from coming down. Due you due diligence, know your codes, etc.


    Quote Originally posted by kay sieverding View post
    How effective do you think that AICP ethics regulation is?
    What regulation? It is a code, you either professionally abide by it or you don't. And it doesn't apply to all planners, only those that are AICP certified, and we take that oath upon certification. Yea, it is something to strive for but really, you think everyone abides by the 10 commandments? rules of the roads? Umm no.
    Last edited by Gedunker; 17 Mar 2009 at 8:17 AM.
    follow me on the twitter @rcplans

  8. #8
    The model code has to do with enforcement. I was addressing the difficulty of getting enforcement and the ways in which the ABA code is inadequate. I did not bring up my lawsuit. The history of the buildings my neighbor built in 2000 is on the website of the Steamboat Pilot, my neighbor's property tax description is on the Routt County web site, and the Steamboat Springs code is on Municode. They are still not on the property tax rolls 8.5 years later. My neighbor has no expectation of privacy because he was the city council president when he built the buildings. And yes, they were detached. And no, the code allowed secondary units only when they had at least 6 feet of common wall and shared a sewer connection. There was no variance application. There was no written procedure to request that the zoning regulations be followed.

    The model code states that "variances will be provided by state law". In Colorado, where my dispute arose, the cities have "home rule".

    In Steamboat Springs, the last time I checked, a variance could be obtained for no more than 10% of the requirement and required a finding of no fault.

    Here are two current controversies in Steamboat Springs:

    Current regulations limit the maximum height of buildings at the ski area base to 74 feet. The current city council president said that the council expected developers to propose taller buildings. The City is currently considering allowing some 100 feet tall buildings. (Brandon Gee "Council's Thunderhead vote confuses". Steamboat Pilot & Today 2/19/09 http://www.steamboatpilot.com/news/2...vote_confuses/)

    At Clocktower Square, zoning statutes allow a 63 feet height. All 4 buildings proposed and most building components proposed were taller than the 63 feet height allowed by law and some were 126 feet. (Brandon Gee "Clocktower proposal debated" 3/28/2008 http://www.steamboatpilot.com/news/2...posal_debated/)

    So we are looking at possible variances of more than 10% and which benefit the property owner only. There are adjoining neighbors with two story homes that will be put in shadow or their view blocked.

    Doesn't the ABA code we are discussing here recognize a constitutional right to zoning enforcement?
    Last edited by Gedunker; 17 Mar 2009 at 11:17 AM. Reason: seq. replies

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