[DIRT] DD 4/06/07 Six big variances? Whoops!!! Illegal Spot Zoning.

Daily Development for Thursday, April 6, 2007
by: Patrick A. Randolph, Jr.
Elmer F. Pierson Professor of Law
UMKC School of Law
Of Counsel: Blackwell Sanders Peper Martin
Kansas City, Missouri
dirt@umkc.edu



ZONING AND LAND USE; SPOT ZONING:    Six significant variances creating a use wholly inconsistent with existing zoning for the subject property constitute spot zoning, and will not be reviewed by the standards applicable to variances.

Drews v. City of Hattiesburg, 904 So. 2d 138 (Miss. 2005)

The lots in question, presently used for single family residential purposes, were zoned B-1 - professional business district.  The proposal was to approve the use of the lots for the construction of a 60,000 square foot medical office building, much of which would be used by the adjacent hospital.

The requested variances permitted significant departures from setback requirements, cut back, parking requirements by two thirds, increased height limit more than four times, and, perhaps most importantly, permitted the construction of 60,000 square feet under one roof, instead of the permitted 10,000 square feet.

The City’s zoning ordinance described a “variance” as:

“A modification of the literal provisions of this code which the . . . City Council is permitted to grant when strict enforcement of said provisions would cause undue hardship(such hardship cannot be self created or of an economic nature) owing to circumstances unique to the individual property on which the variance is sought.”

Although the court stated that courts defer to local government’s discretion in reviewing zoning decisions, it did not appear to evaluate whether the city properly determined whether a hardship existed justifying these variances or whether the variances were a proper response to the hardship, although at one point, totally without analysis, it does say that there was no proof of hardship. 

Instead, the court held that, in effect, the City had authorized an entirely different use on the property - in effect rezoning the property from B-1 to B-3.  This is was free to do if it went through the proper procedures and a foundation existed for doing it, but the city was not free to circumvent the zone change requirements by resorting to the far less formal process of awarding variances. 

Comment 1: As the court of appeals had commented when it reached a similar conclusion, it really didn’t matter whether the ultimate decision made by the City was best for the City.  The question was procedural first, and only then could ths substantive issues be reached.

Whether the City in fact also set its own procedure may be questionable.  Many states have express zoning enabling provisions that also set forth basic procedures.  Often charter cities and counties aren’t bound by these requirements, and the requirements themselves often leave a lot of latitude for cities to establish their own procedures.

Comment 2:   But don’t be mislead by the court’s approach to this case - that the defect was choosing the wrong procedure.  The concept of “spot zoning” is a sort of “common law of zoning” concept that often goes beyond issues that courts permit legislative bodies to address.  The question is whether there is a transparent process for land use de3cisions that insures clarity of purpose and uniformity of treatment.  If these things don’t exist, then it is quite possible that no amount of “dressing up” or rationalizing will prevent the court from striking down a decision like this as spot zoning. 

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