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Zoning Contingent approval of rezoning request?

gtpeach

Cyburbian
Messages
2,116
Points
21
When I went to fancy Zoning Administrator training, one of the things that was always emphasized was that all proffers placed on rezoning requests had to be voluntarily offered by the applicants. These had to be submitted in writing prior to the Board of Supervisors meeting.

A B&B owner across the street from me had requested to rezone their property to allow them to also operate a very small nano-brewery in conjunction with their B&B. I have no issues with this request, and since I used to be a fancy Zoning Administrator, the owner had asked my advice on developing some of the proffers after getting feedback from the Planning Commission (I just helped her with wording and asked questions that would help her clarify what she wanted to do with the property - no actual advice on what proffers to place or anything).

I recently asked her for an update, and she told me that the Board had voted at the most recent meeting that they would tentatively approve the rezoning request contingent upon the County Attorney's review of the proffers. I asked her why they didn't just table the vote to let the attorney review it, and she told me that the attorney HAD already reviewed it, but that no one could remember what he had said in response (he doesn't regularly attend the Board meetings). So it is back on the agenda for the upcoming meeting.

The question she asked me, and while being a former Zoning Administrator and knowing a lot about associated legalities but not being an actual attorney and never hearing about this situation ever occurring before, I didn't know the answer to, was whether they could legally deny the request at this point.

Anyone experience something like this? As non-attorneys, what are your thoughts? (I did tell her that if they rescinded the approval she should consult an attorney, but hopefully they won't!)
 

mendelman

Unfrozen Caveman Planner
Staff member
Moderator
Messages
14,033
Points
58
...she told me that the attorney HAD already reviewed it, but that no one could remember what he had said in response (he doesn't regularly attend the Board meetings). So it is back on the agenda for the upcoming meeting.
I presume in your state's nomenclature "proffer" is the procedural motion equivalent of "conditions of approval" in my experience.

With that presumed, I'd say conditions of approval/proffers should most times be mutually agreeable between the Muni and the applicant, but sometimes unilaterally imposed ones by the Muni can be valid and supported by a compelling government interest.

My larger concern is the seeming administrative problem of the Muni's law director nor the Muni record keepers already having the attorney's decision in writing. That would be a major functional problem in any community I've worked so far and somebody would have gotten 'a talking to'.
 

gtpeach

Cyburbian
Messages
2,116
Points
21
I presume in your state's nomenclature "proffer" is the procedural motion equivalent of "conditions of approval" in my experience.

With that presumed, I'd say conditions of approval/proffers should most times be mutually agreeable between the Muni and the applicant, but sometimes unilaterally imposed ones by the Muni can be valid and supported by a compelling government interest.

My larger concern is the seeming administrative problem of the Muni's law director nor the Muni record keepers already having the attorney's decision in writing. That would be a major functional problem in any community I've worked so far and somebody would have gotten 'a talking to'.

Yes, it’s basically voluntary restrictions that an applicant offers to put on the property if the zoning change is approved. The laws in the state have been very clearly communicated that the Board cannot extract these conditions during the public hearing. They must be submitted in writing and signed by the applicant prior to the Board meeting.
 
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