Agenda - Planning Commission - 09/02/1997

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~ JULY 1997 ~ AMERICAN PLANNING ASSOCIATION II ",:f " ,..;. Neighborhood Character and Rezoning By Mark S. Dennison When does the existing use classification of a parcel of land no longer make sense? A change in the character of the neighborhood surrounding it since the original zoning ordinance or latest amendment may be a good indicator. A local zoning authority, either on its own initiative or at a landowner's request, may consider a rezoning to accommodate changed conditions in an area. Because communities grow and change, zoning cannot remain static. As many courts have observed, "changed conditions call for changed plans." [See Kravetz v. Plenge, 446 N.Y.S.2d 807 (App. Div. 1982).] By nature, rezonings affect the competing interests of individual landowners who expect to benefit and others who view them as detrimental to the use and value of their property. As a general rule, property owners have no legal right to retain an existing zoning classification with respect to either their own or nearby property. Because owners hold property subject to the government's general police power, they can expect only that zoning changes will be reasonably related to legitimat<: public interests. Thus, local zoning ordinances may be amended to further the public welfare where necessary to account for a substantial change in neighborhood character. [See Kozesnik v. Montgomery Township, 131 A.2d 1 (N.J. 1951).] Judicial Review Most states consider rezonings to be legislative decisions. The logic is that the enactment of a zoning ordinance is clearly legislative and sets policy, so amendments should be deemed legislative as well. As such, the approval or denial of a rezoning will not be invalidated unless the zoning board's decision is clearly shown to be "arbitrary and capricious," "an abuse of discretion," or "totally lacking in relationship to the public health, safety, and welfare." The burden is on the challenger to overcome the presumption that a rezoning decision is reasonable. Some states employ an important variation on this standard of judicial review, known as the "fairly debatable" rule. Under this standard, if a zoning decision is supported by any substantial evidence, then the matter before it was fairly debatable and the court will not substitute its judgment for that of the zoning body. On the other hand, if the decision is not supported by any substantial evidence, the zoning board's action was arbitrary and capricious and should be invalidated. It is important to note that a few of those states (most notably Maryland and Mississippi) that apply the "fairly debatable" rule do not attach a presumption of validity to rezoning decisions, although they still consider them to be legislative acts. The courts in these states apply a "change or mistake" rule to rezonings, under which the existing zoning is presumed valid until proponents of the rezoning rebut the presumption with evidence of a mistake in the zoning ordinance or a substantial change in conditions since its adoption or latest amendment. [See Cardon 10 Investments v. Town of New Market, 485 A.2d 678 (Md. 1984).] If sufficient evidence is put forth to make the issue of change or mistake fairly debatable, then the presumption of validity attaches to the rezoning with its customaty effect. [See Luter v. Hammon; citations appear in box.] Compatibility of Rezoning with Comprehensive Plan Rezoning decisions frequently are challenged on grounds that the zoning body failed to consider properly the policies and goals of the comprehensive plan. [See Miller v. Town of Tilton.] The comprehensive plan, whether inherent in the zoning ordinance or a separate written document; should be designed to reHect current and future regulation of land uses. "Properly designed, the comprehensive plan contemplates a dynamic community. It recognizes the inevitability of change. Its goal is orderly change, balancing the community's growth needs and the individual's interest in using his property as he sees fit." [Woodland Hills Conservation Ass'n, Inc. v. City of Jackson.} Courts generally have stated that neighboring land uses must be considered in order for a zoning change to meet the requirement that it was done in accordance with a comprehensive plan. [See Montgomery v. Bremer County Bd. of Supervisors, 299 N.W.2d 687 (Iowa 1980).] A change in ,'.:~ ,:.# " '.n .:.:~( . .~"'i1;; .;:~: ~ _: ~ .l.~f -,H'" n~ ,~*~ .:..!f. ;~.>;" u , ,:-~, .:~~ :~ <~:. ..~. . : .. ... :. .:. Scenario One ~. The local zoning body approves an upzoning of land to a ':i less restrictive use classification, and neighborhood ~j residents challenge the reasonableness of the rezoning. ~ Coleman v. Gormley, 748 P.2d361 (Colo. App. 1987) ~ (changed conditions justified rezoning from I residential to planned unit development use ~ classification) ,:jl Palisades Citizens Assoc., Inc. v. District of Columbia :1;1 Zoning Commission, 368 A.2d 1143 (D.C. App. 1977) (sufficient evidence of change to justifY rezoning from single-family to multifamily residential use) Luter v. Hammon, 529 So.2d 625' (Miss. 1988) (changed conditions warranted rezoning from residential to commercial) Woodland Hills Conservation Ass'n, Inc. v. City of Jackson, 443 So.2d 1173 (Miss. 1983) (rezoning from limited residential to general commercial supported by change in character of neighborhood) Bassani v. Board of County Commissioners fOr Yakima COUNty, 853 P.2d 945 (Wash. App. 1993) (changed circumstances justified rezoning from general rural to light industrial) .~i~. ';.~f. ~~"-:'- -~. :1;. I~ j1:: .- 't":::: ~)-'~..-; (continued on page 3)