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Thread: Can cities rezone land without owner consent?

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    Cyburbian Streck's avatar
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    Can cities rezone land without owner consent?

    Do cities have the authority to rezone land without the owner's consent?

  2. #2
    Cyburbian Tarf's avatar
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    I dunno about all states in the US, but I can speak for California.

    If the rezone is consistent with the General Plan land use designation(s), then yes, the city/county can rezone without the owners' permission (as part of a duly noticed public hearing and following relevant procedures, of course).

    The rezone is simply implementing the GP land use designations, and state law requires zoning and GP land uses to be consistent.
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    Cyburbian Richmond Jake's avatar
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    Quote Originally posted by Streck View post
    Do cities have the authority to rezone land without the owner's consent?
    It all depends. Talk to your city/county attorney.
    Annoyingly insensitive

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    Cyburbian Cardinal's avatar
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    Quote Originally posted by RichmondJake View post
    It all depends. Talk to your city/county attorney.
    This is the correct answer. But yes, they often can.
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    OH....IO Hink's avatar
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    Yes, most often it is spelled out in regulation. Locally, we can't spot zone without consent, but you can rezone large areas if it is consistent with your comprehensive plan.
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    Cyburbian Plus JNA's avatar
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    Only a limited example - when agricultural zoned land is annexed into our city it becomes R-1.
    other zoning classes remain the same.
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    Unfrozen Caveman Planner mendelman's avatar
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    In my experience in Ohio and Illinois - yes. But it's typically a political issue, so you need to have alot of pubglic discussion before and during the rezoning especially for a built out area with diverse ownership.
    I'm sorry. Is my bias showing?

    The ends can justify the means.

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    Cyburbian fringe's avatar
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    I live adjacent to a big college town, where large neighborhoods near the sprawling campus were low to mod owner occupied. Block grant funded housing rehab struggled during the 80's, but failed, mostly due to lack of funding, to keep enough of it viable. Gentrification pressures built and built, until a mass rezone was voted in, affectin 400+ parcels. It paved the way for parcel recombos and demo/rebuilds that resulted in a huge population shift from town to gown.

  9. #9
    Cyburbian Planit's avatar
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    In NC the jurisdiction can rezone the property without the owners consent, but like other places the new zone should conform with the land use/comprehensive plan(s).

    The are some state leg bills being kicked about that may change this or allow alot more "free use of land" - thank goodness they are stuck in committee at this time.
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    Cyburbian ColoGI's avatar
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    Quote Originally posted by Cardinal View post
    This is the correct answer. But yes, they often can.
    My reply as well.

  11. #11
    Cyburbian Raf's avatar
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    Quote Originally posted by Streck View post
    Do cities have the authority to rezone land without the owner's consent?
    Of course. And the owner has the legal right to sue after exhausting all reasonable avenues i.e. public hearings, etc.
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  12. #12
    Yes. As mentioned earlier, check with your city attorney's office, but we've done it several times before. The largest scale re-zoning we did was re-zoning the entire downtown district from conventional zoning to SmartCode transects. We did lots of public outreach on this so it wasn't a huge shock to most property owners. The most recent one was when we re-zoned several parcels from Industrial to Commercial, per the future land use map. The property owners were OK with it, for the most part, as that area was developing as commercial/retail anyway.

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    Cyburbian
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    In my previous job (in Arkansas), we rezoned an entire neighborhood to a new transect-based zoning scheme. Of course, this followed months of well-publicized neighborhood meetings.

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    Cyburbian natski's avatar
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    Here in NSW councils rezone without owners consent, as it is not required. Under our legislation land use zoning with a local environmental plan can be changed by Council, but under goes due process, such as required studies, minimum standards of public consultation etc.

    Owners cannot appeal rezoning decisions made by the consent authority, but can appeal the process- i.e. following the legislation correctly when rezoning land.
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    Cyburbian michaelskis's avatar
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    In MI, they can, however it needs to be consistent with the master plan, public notification needs to be posted in a paper of general circulation, and a public hearing must be held.
    "A long habit of not thinking a thing wrong, gives it a superficial appearance of being right, and raises at first a formidable outcry in defense of custom. Time makes more converts than reason." - Thomas Paine Common Sense.

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    Cyburbian
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    Again, the right answer is to check with the attorney, but zoning is a legislative act in all 50 states, delegated to municipal governing bodies under the State's "police powers" and, as such, does not require consent in any context that I am aware of. If everyone had to consent to it, zoning regulations would represent unanimous public opinion and wouldn't be necessary. Zoning exists because this is never the case.

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    Cyburbian
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    ^ I should also add that, if a developer has invested substantial money into a project in reliance on a particular zoning classification, and that classification is changed, he or she may have "vested rights" in their project under the previous classification. But this still doesn't require "consent" of the landowner, and is something that an attorney should assist you with if you want reliable information in your jurisdiction.

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    Cyburbian Linda_D's avatar
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    In NYS, zoning changes don't require owner consent. They are generally dealt with on a town or village/city level, and most properties that don't conform to the new zoning are grandfathered.

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    Cyburbian Brocktoon's avatar
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    In Arizona a city/county cannot rezone without owner consent. Furthermore, Prop 207 passed by voters in 2006 requires the government to reimburse land owners when regulations result in a decrease in the property's value. Every planner in AZ is very farmiliar with the Prop 207 waiver form.
    "If you don't like change, you're going to like irrelevance even less" General Eric Shinseki

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    Cyburbian ColoGI's avatar
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    Quote Originally posted by Brocktoon View post
    In Arizona a city/county cannot rezone without owner consent. Furthermore, Prop 207 passed by voters in 2006 requires the government to reimburse land owners when regulations result in a decrease in the property's value. Every planner in AZ is very farmiliar with the Prop 207 waiver form.
    Aside, but related: those of us who worked against the Koch Private Property Rights initiatives watched the AZ voting with interest, as this was bundled on the back of the Eminent Domain question - the only PPR initiative that was not stand-alone. Many of us are still watching the outcomes play out - what Brocktoon describes is an expected result of a very narrow worldview where the only consideration is 'exchange value'.

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    Cyburbian Brocktoon's avatar
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    Quote Originally posted by ColoGI View post
    Aside, but related: those of us who worked against the Koch Private Property Rights initiatives watched the AZ voting with interest, as this was bundled on the back of the Eminent Domain question - the only PPR initiative that was not stand-alone. Many of us are still watching the outcomes play out - what Brocktoon describes is an expected result of a very narrow worldview where the only consideration is 'exchange value'.
    You are correct that it was sold as an anti-eminent domain bill in the wake of the New London CT taking case. Most cities and counties are so afraid of even redoing zoning classifications they just keep creating more to avoid any potential lawsuit. The law has not been challenged in court but the spectre of it has definately influenced decisions. Flagstaff was looking to set up a historic district and the threat of a 207 challenge ended the discussion.
    "If you don't like change, you're going to like irrelevance even less" General Eric Shinseki

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    Cyburbian Tarf's avatar
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    Quote Originally posted by Brocktoon View post
    You are correct that it was sold as an anti-eminent domain bill in the wake of the New London CT taking case. Most cities and counties are so afraid of even redoing zoning classifications they just keep creating more to avoid any potential lawsuit. The law has not been challenged in court but the spectre of it has definately influenced decisions. Flagstaff was looking to set up a historic district and the threat of a 207 challenge ended the discussion.

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  23. #23
    Cyburbian
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    Quote Originally posted by Brocktoon View post
    In Arizona a city/county cannot rezone without owner consent. Furthermore, Prop 207 passed by voters in 2006 requires the government to reimburse land owners when regulations result in a decrease in the property's value. Every planner in AZ is very farmiliar with the Prop 207 waiver form.
    Sounds like a very property rights driven place. This is a good example of why it is good to check with the local attorneys first, because places vary so much. There was a measure passed in Oregon that I think was similar (in response to urban growth boundaries), but I think that may have been repealed or amended in whole or in part.

    To me, the idea of consent to rezoning is absurd, but that is not to say it isn't required everywhere (as Arizona shows, thanks for bringing my attention to that). Land use laws are local. That was the first thing we learned in law school when studying this area.

    Are you saying a county cannot rezone at all, or just in a more restrictive sense?

  24. #24
    Cyburbian Brocktoon's avatar
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    Quote Originally posted by landplanninglaw View post
    Sounds like a very property rights driven place. This is a good example of why it is good to check with the local attorneys first, because places vary so much. There was a measure passed in Oregon that I think was similar (in response to urban growth boundaries), but I think that may have been repealed or amended in whole or in part.

    To me, the idea of consent to rezoning is absurd, but that is not to say it isn't required everywhere (as Arizona shows, thanks for bringing my attention to that). Land use laws are local. That was the first thing we learned in law school when studying this area.

    Are you saying a county cannot rezone at all, or just in a more restrictive sense?
    Counties land use is very similiar to cities. In Arizona if the land is not in a city then int in the unicorporated portion of the county which has jurisdiction. There are no townships in AZ. When land gets annexed from the county to a city its zoning must be the closest zoning equivilant in the city.Many cities require as part of the annexation agreement that the landowner agrees to rezone to match the land use at the same council meeting as the annexation.
    "If you don't like change, you're going to like irrelevance even less" General Eric Shinseki

  25. #25
    Cyburbian
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    Yes of course a city can rezone without consent. Just like any other law can be changed without the consent of those it governs. Your consent is given through the democratic process of representation on your city legislature. That's why it is important to vote. The power to zone is intended to overcome the problem of collective action wherein individually rational actions result in collective detriment, and it stems from the residuum of power left over to the states in the 10th Amendment (police power) to protect the public health, welfare, and safety. It is only locally administrated through a grant from the state to the cities through state law enabling statutes (or in some cases home rule authority in the state constitution, which allows any power not otherwise proscribed). Some places have tried to introduce referenda to the land regulation arena, wherein the consent of a majority of people in the neighborhood is needed to approve a project, but I am not aware of any case where consent of a landowner is needed to change zoning of that parcel. In fact, an easier way to think about it is this: zoning is a form of law (local regulatory law), and laws can only be made by a legislative branch. To subject a law to the consent of the person it purports to govern is to in effect allow that person, rather than the legislature, to make law. You see the oddness of this--laws exist precisely because individuals cannot agree on collective good. Imagine if the legality of "no-stealing" laws depended on the consent of thieves. Cities change zoning all the time without the consent of landowners (although there is a public process during which landowners can express their views, even if the legislature disregards them as not representative of the majority). The theory of vested rights, boiled down, says that a zoning classification pursuant to which a developer has expended substantial money and time and pre construction work in creating a project, cannot usually be changed because the right to develop under that designation has "vested" from those actions (it would be inequitable to reverse those rights when someone has acted in reliance on them if to do so would cause that person a detriment). The very fact that vested rights exists as a theory suggests that the simple answer to your question is: yes.

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