Agenda - Planning Commission - 04/07/1998

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Page 8- March 10, 1998 z.g. land and the public need for the use. Conditional use permits couldn't be approved for residential districts unless a number of conditions and standards were met. The city engineer and the city building commissioner, as well as the county planner, considered whether Kabatek's proposal met the qualifications for a conditional use permit. Finding that the proposal met all the necessary standards and conditions, all three recommended approval of the permit. As required by the city zoning code, the city held a public hearing to discuss Kabatek's proposal. Several residents who opposed the project apparently testified at the hearing. The city planning commission denied the permit, and the city council did the same. (The city council subsequently repealed the ordinance allowing cluster housing and rezoned several hundred acres, including Kabatek's, from half-acre residential to one-acre "rural residential.") Kabatek appealed to court, claiming the city council's denial of a condi- tional use permit wasn't supported by reliable and substantial evidence. ' The court affirmed the city's decision, and Kabatek appealed again. He claimed the trial court acted improperly by totally disregarding the recommendations of the city's own experts who recommended approval of his permit request. According to Kabatek, he deserved the permit because he met all the criteria for a conditional use permit in the city zoning code. The city countered that approving conditional uses was discretionary. It also argued that even if approval of conditional uses wasn't discretionary, Kabatek didn't meet all the requirements for a permit. DECISION: Reversed, in favor of Kabatek. The trial court should have reversed the city's decision. The city was right. The issuance of a conditional use permit wasn't a matter of right. Nonetheless, the city couldn't arbitrarily deny a property owner's use of land merely because the proposed use was no longer desired -- and this is what the city did. The evidence before the planning commission and the city council showed Kabatek's proposed use satisfied all the conditions set forth in the city's zoning regulations. Aside from the opinions of adjacent landowners who opposed the project, ther~ was no reliable evidence supporting the city's decision. The city engineer, the city building commissioner, and a county planner all recommended the city approve the permit. They discussed all of the conditions, and explained how they were met. That the city council's hearing was open to the public didn't transform it into a legislative public hearing with the right to receive public comment. A public hearing was where members of the general public could speak and express their views on questions of governmental, political, and policy considerations. A decision rendered solely on the basis of public opinion wasn't supported by "reliable, probative and substantial evidence." see also: hr re Rocky Point Plaza Corporation, 621 N.E. 2d 566 (1993). Gerzeny v. Richfield Township, 405 N.E.2d 1034 (1989).