Agenda - Planning Commission - 01/07/1997

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The city tried to apply its landmark ordinance to block any alteration or expansion. Although the trial court ruled RFP_A_ unconstitutional, the Fifth Circuit reversed. The outcome of this case probably will have to wait until next spring. But it seems likely that the disposition of zoning issues will remain mixed, much as it does with other First Amendment issues, simply because some local governments will go too far and others will regulate appropriately within established constitutional constraints. As with other First Amendment issues such as adult uses, signage, and the right of assembly, the burden is on government to document the validity of its regulatigns in furthering a legitimate and compelling public interest. Most of the serious concerns raised by megachurches involve impacts that have been addressed adequately in other contexts--traffic, noise, lighting, signage, access, and parking. It is clear that many of these impacts raise doubts about the appropriateness of permitting these uses by right in residential zones, but that does not mean that they can or should be excluded from a community entirely, or even excluded from residential areas under all circumstances. In reality, many rapidly growing but struggling new congregations find nonresidential areas more inviting simply because land prices may be lower. The bottom line is to document that local regulations are not bans on constitutionally sanctioned religious activity but reasonable restrictions concerning time, place, and manner of expression--and to follow the bouncing ball of recent decisions in the courts and Congress. Abortion and Zoning Meet in Wichita A single-family residence that an antiabortion group sought to turn into a counseling clinic set offa long-running Wichita controversy that the city council finally resolved this spring. The home, now owned by Serving Women in Crisis, Inc. (SWC), is next to an abortion clinic operated by Dr. George Tiller. On April 2, the Wichita city council cleared the way for a contentious zoning change to allow SWC to proceed with its plans when it voted to drop an appeal it had filed with the Kansas Court of Appeals. The council had previously denied the zoning change, causing SWC to file suit. The trial court summarily found the council's actions to be arbitrary and discriminatory, and the council appealed. Between the appeal and this spring's vote, however, the council changed from Democratic to Republican hands. Tiller's clinic has been the target of massive protests in recent years, and when SWC bought the home in early 1994, controversy ensued. SWC requested a zoning change from "A" residential to "LC" light commercial to allow its clinic to operate, and the Wichita Metropolitan Area Planning Department recommended approval. In February 1994, however, the Metropolitan Area Planning Commission (MAPC) denied the change on the bases of increased traffic, deterioration of available parking, and the noise nuisance caused by antiabortion protesters. MAPC sent the case to the city council, which in turn remanded it on March 8 for reconsideration. MAPC approved the change, sending it back to the council, which then denied it. SWC filed suit on May 11, and on January 6, 1995, the Kansas district court sided with SWC. The council appealed that decision, but later dropped the appeal, clearing the way for the zoning change and the new clinic. In his ruling, Judge Carl Friedel 'made it clear that the issues facing the court were not the morality of abortion or the rights of protesters to picket Tiller's clinic. Instead, he noted, "iT]he sole issue to be decided by the court is whether the city's denial of plaintiff's rezoning application was reasonable as a matter of law." Friedel attacked every point the council had used as a basis for its judgment. Neighborhood opposition was deemed noteworthy, but not "legally sufficient" to obstruct the zoning change because the decision should be guided by the benefit or harm to the community at large. Additionally, concerning neighbors' opposition based on nuisance, the court observed that the presence or absence of the counseling center would not affect the protesters who were already at Tiller's clinic. Because the uses on the same block were moving from residential to commercial, the court saw opposition based on changes in neighborhood character as a moot point. The court went so far as to note that denying the change based on the contiguity of commercial and residential uses would "condemn". similar previous changes. Potentially the most important point in terms of zoning law revolves around use. The court noted that there was no substantial evidence of any "nexus" between the proposed use and detriment to the community at large. The change could not be denied based on use when there were no substantive factors lending themselves to this decision. By summer, SWC had not yet made any changes to the property or begun any activity. Aaron B. ShafiCey ZoningNews is a monthly newsletter published by the American Planning Association. Subscriptions are available for $50 (U.S.) and $65 (foreign). Frank S. So, Executive Director; William R. Klein, Director of Research. S?wnb~g Ntw: is produced at APA. Jim Schwab, Editor; Chris Burke, Fa)' Dolnick, Michelle Gregory, Sanjay Jeer, Megan Lewis, Doug Martin, Marya Morris, Martin Roupe, Aaron Sheffey, Laura Thompson, Reporters; Cynthia Cheski, Assistant Editor; Lisa Bar£on, Design and Production. Copyright ©1996 by American Planning Association, 122 S. Michigan Ave., Suite 1600, Chicago, IL 60603. The American Planning Association has headquarters offices at 1776 Massachusetts Ave., N,W., Washington, DC 20036. All rights reserved. No part of this publication may be reproduced or utilized in any form or by any means, electronic or mechanical, including photocopying, recording, or by any information storage and retrieval system, without permission in writing from the American Planning Association. Printed on recycled paper, including 50-70% recycled fiber and 10% postconsumer waste, il~ Chicago Reins in Yard Sales Garage and yard sales are causing more consternation than in the past among Chicago-area residents, many of whom no longer are tolerant of their neighbors' penchant for selling odds and ends. Chicago recently joined many of its neighboring suburbs, which have passed a variety of restrictions over the years, by enacting an ordinance limiting homeowners to two such sales a year, for which they must obtain permits. The measure, which took effect on October 1, sets fines of $50 to $500 per violation. The permits themselves are free from the city's Department of Streets and Sanitation. tim Schwab