Agenda - Planning Commission - 09/06/2007

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August 1, 2007 I Volume 1 I No. 15 '[ion. The overlay zone, had i'[ been known, would have eHectively prohib- ited the proposed development. Under the advice of the city, Cedar Landing submitted a zone-change application to remove the overlay zone from the development. The city consolidated the zone change requesT with the initial PUD application, held hearings, and ul'[LrnaTely approved the plans. Importantly, the city did not notify the proposed zoning map amend- ment to the Depanment of Land Conservation and Development (depart- ment). All changes TO land use regulations were supposed to be reponed to the deparrment. A neighborhood coalition opposed to the development filed an action with the land use board of appeals. The coalition argued that t.he city erred in failing to provide the depart- ment proper nOTice of the proposed zoning map amendment and in aP- proving the consolidated application because, at the t'Lrne of the initial ap- plication, 7.3 acres of the property was subject to an overlay zone, which precluded the development as proposed. The city countered that notifying the department was not required in this case because it was only necessary for changes to "land use regulations." An administrative agency had ex- empted "small tract" zoning amendments from the definition of "land use regulations." The city also argued that the consolidation of the prelimi- nary PUD and zoning map amendment applications was expressly permit- ted under the city's land development code. The land use board found in favor of the coalition with regard to the issue of notice. It found that the administrative body relied upon here providing the exception to the notiLLJ.cation mandate did not have the au- thority to create such rules. However, the board sided with the city with regard to the consolida'[ion and subsequent approval of the development plan, pending notice to the department. The city appealed b1.e portion of '[he decision finding it did not have the amhority to amend the notifica'[ion regulations, and the coalition ap- pealed the decision affilming the consolidation of the applications. Decision: Both decisions affumed. With regard TO the ciTY'S appeal, the court found '[hat state law clearly provided that: "[a] proposal to amend a local government acknowledged comprehensive plan or land use regulation or to adopt a new land use regulation shall be forwarded to the DirectOr of the Department of Land Conservation and Development at leaST 45 days before the filst eviden- tiary heari.i'1g on adoption." Further, state law expressly defii'1ed land use regulations as "any local government zoning ordinance, land division ordinance..., or similar gen- eral ordinance establishi.clg standards for implementing a comprehensive plan." The language here was clear; the city should have provided notice of the change to the department. It did not have the amhority, as it ar- gued, TO create exceptions to this rule. Alternatively, the ciry claiL-ned that reversal was not necessary in this case because its failure TO notify the department did not prejudice any of its proceedings. However, the coUrt found that "[wJhere...the legislahrre 11 123