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Thread: Legal question / property rights

  1. #1

    Registered
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    Charleston, West Virginia
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    Legal question / property rights

    My City council rezones property to specific uses. I am relatively new to my position as Planning Director but I have never experienced this. For example, an applicant will petition to rezone a property to C-6 (Community Commercial) and they will decide that all the uses allowed under the C-6 are not appropriate and amend the bill to rezone to the particular use the applicant is requesting the rezoning for. We have several attorney's on Council and they feel if the applicant agrees in public to this then it is not challengeable. Does anyone have any case law on this? Advice?

  2. #2
    Cyburbian Emeritus Chet's avatar
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    Well I'm not an attorney....

    ....but our Council does basically the same thing, only approving rezonings when the see the site plan and operation detials of the establishment. Even if the use is consistent with our Plan, the specific site details must be to their liking. I've never seen anything like it, but I'm convinced I can't change their ways....

  3. #3
    Cyburbian mike gurnee's avatar
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    That situation is called contract zoning, and it is unconstitutional. But you more than likely will not see a change. Good luck keeping your sanity.

  4. #4
    Cyburbian Emeritus Chet's avatar
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    nope...

    Per our legal counsel its not contract zoning if there's no developers agreement. Council has sole authority over rezonings and even if the use matches the comp plan, they can deny for cause.

  5. #5
    Cyburbian mike gurnee's avatar
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    My response was to Beth. It sounds as though the council make a zone change--limited to a specific use. If the zoning goes to C-6 (her example) does the governing body have the right to further limit the permitted uses in that district? And further, does an oral comittment from the current developer survive a title change?

    bturk, your group is doing right IMO. The governing body can deny a zone change for any valid reason. And if site plan review is written in as part of the process, such details can and should be part of the process. I think we are better off, however, if site details are separated from the zoning issue.

    But I am not an attorney...

  6. #6

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    They usually do not review plans and quite often the zone change is contrary to our Comprehensive Plan. It is usually a spot zoning. They do this to justify spot zoning. As a result we have all of these little spot zones throughout the City. Talk about an administrative headache.

  7. #7
    Cyburbian Emeritus Chet's avatar
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    OK Beth---

    Who on your Board is related to the petitioner!

  8. #8

    Registered
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    Charleston, West Virginia
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    We are a small city in West Virginia--everyone is related!

  9. #9

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    Charleston, West Virginia
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    I am kidding. No one is related.

  10. #10
    It is the same as contract zoning without the contract. It would be called prior restraint in court if it ever got to that. As policy it is an unweildy mess. You would need to record the restrictions with the clerks office, just as deed restrictions.

    It would mean that any change to the zoning development plan would require a full zone change process and that is just too much bureacracy to put on development. You might offer a lst of things that could be restricted, or allowed, that would narrow the permitted uses that would be the same performance-wise, but would not require a zone change hearing. Work with the applicant on the list and let them say no to the council. If they then get turned down they have cause for appeal.

  11. #11

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    The Idaho zoning enabling legislation specifically allows 'contract zoning.' We call it a development agreement. The relevant part of Idaho Code reads:
    "67-6511A. DEVELOPMENT AGREEMENTS. Each governing board may, by ordinance adopted or amended in accordance with the notice and hearing provisions provided under section 67-6509, Idaho Code, require or permit as a condition of rezoning that an owner or developer make a written commitment concerning the use or development of the subject parcel. " The rest of the Code section is here: http://www3.state.id.us/cgi-bin/newi...d=670650011A.K

    Typically, a developer or property owner will request a rezoning to a commercial district in an area adjacent to residential development. A development agreement will be negotiated that would eliminate uses that would otherwise be allowable in the commercial zone. For example, your C-6 district might allow both professional offices and gas stations (among other things). Because the developer just wants to build offices, and a gas station might be detrimental to the neighborhood, a development agreement would eliminate gas stations as a permitted use. The development agreement is recorded with the County Recorder and is binding on all future owners. The only way to remove the restrictions is to go through the rezoning process again.

    In theory, development agreements are useful, because you can "negotiate away" objectionable uses. In practice, they are an administrative nightmare.

  12. #12
    Member
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    REZONING BY SPECIFIC USE

    What you describe is contract zoning pure and plain.
    It is illegal, regardless if the aplicant agrees to the council exclusions at a public hearing. The applicant cannot bind a future purchaser of the property to the exclusions imposed by your city council.
    A better vehicle for this type of thing is to adopt a Planned Unit Development ordinance. Within such an ordinance, your council can limit uses, impose design standards to be met by the applicant/developer, and a host of other pseudo-illegal matters because the PUD is basically a contract for zoning with the applicant giving more City control and review for the right to do something extraordinary.
    I am sure you are not going to change anyone's mind locally, however, so just keep going with the flow if you want to stay put for awhile
    Augie Fragala

  13. #13
    Cyburbian Plus PlannerGirl's avatar
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    Greensboro did something like this and it was called "conditional use". Whne there was a rezoning the property had "conditions" put on it and sometimes they would ONLY allow a set use to be on that tract.

    I thought it was bad news in the legal end but it made ajoining property owners happy i.e. knowing the new comercial zoing going it would ONLY allow for a day care and not some night club or other NIMBY thing.

    It worked to keep folks happy but...

    Danie

  14. #14
    Cyburbian Cardinal's avatar
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    Quote Originally posted by ck.richards
    My state allows 3 pets per single residetial unit. Please define single residential unit. I own a three bedroom house, what is the unit description for this? Thanks, CKR
    A residential unit is, in layman's terms, a house, apartment, or condo. The number of bedrooms is irrelevant. One house, three pets.
    Anyone want to adopt a dog?

  15. #15
    moderator in moderation Suburb Repairman's avatar
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    Without a doubt contract zoning and is a no-no around here. My Town Next Door routinely engages in exactly what you are referring to. Their City Attorney has tried to get them to stop, but they are a stubborn bunch with a spineless planning director (can't say that I blame him though--their last one got canned for pushing change too much). The attorney was smart enough to do a CYA memo to his personnel file though.

    It sounds like you need a PUD district in the worst way. Also, you need to reevaluate the uses listed in each district--are their incompatible uses within a district? You might also look at some buffering requirements between districts/uses similar to what you see in performance zoning.

    Sounds like you have a hell of a job on your hands... go get yourself a bottle of that West Virginia moonshine!

    "Oh, that is all well and good, but, voice or no voice, the people can always be brought to the bidding of the leaders. That is easy. All you have to do is tell them they are being attacked and denounce the pacifists for lack of patriotism and exposing the country to danger. It works the same way in any country."

    - Herman Göring at the Nuremburg trials (thoughts on democracy)

  16. #16
    Cyburbian btrage's avatar
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    Michigan

    The state of Michigan recently passed legislation that allows for contract zoning. However, it referred to as "conditional rezoning". It is allowable only if offered by the applicant that is initiating the rezoning. It was designed so that a local municipality may place further restrictions on the use of a property. This is new legislation within the past year, so the wait continues to see if this type of thing will be challenged in court.

    To me, this is very similar to PUD's, where a developer comes in with a plan and negotiates over issues with the Planning Commission, who then recommends approval for a rezoning to PUD to the council/board.

    In Michigan, the "conditional rezoning" legislation was intended to affect small parcel rezonings, whereas PUD's are typically large tracts of land. I do agree with previous posts that placing further restrictions on permitted uses causes a record keeping nightmare.

    Like I said, this legislation is not even a year old, and to my knowledge it is not being used very often. It sould be interesting to see where it is in a few years.
    "I'm very important. I have many leather-bound books and my apartment smells of rich mahogany"

  17. #17
    Cyburbian imaplanner's avatar
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    Contract zoning typically implies that there was some sort of negotiation between the developer and the jurisdiction that resulted in a favorable determination. Essentially meaning that the merits of the rezoning application were not the sole basis for the decision. I believe that if the jurisdiction requires site plan review to determine whether a rezone request is consistent with adopted regulations it would likely be considered legal so long as the decision was done through a transparent process and based upon consistently applied criteria.

  18. #18
    Cyburbian
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    In Utah, state statute allows local governemetns to place zoning conditions on a property. The zoning conditions can relate to use, density, building size, height, or setbacks. I generally think that zoning conditions are a poor way to address the problems associated with a zoning amendment, but sometimes they have been beneficial.

  19. #19
    Member
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    Private Deed Restrictions

    Does anyone know of an example of a private deed restriction being granted by Wal-Mart?

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