Daily Development for Thursday, August 10, 2000

By: Patrick A. Randolph, Jr.
Professor of Law
UMKC School of Law
Of Counsel: Blackwell Sanders Peper Martin
Kansas City, Missouri
randolphp@umkc.edu

ZONING AND PLANNING; BUILDING PERMITS; DISCRETION: City council could not deny development permit on the ground that proposed use was incompatible with neighborhood, when proposed use was expressly permitted by zoning ordinance.

SecurCare Self Storage, Inc. v. City of Colorado Springs, 987 P.2d 852 (Colo. App. 1998), pet. for cert. granted (Colo. 1999).

SecurCare owned approximately 4.4 acres of undeveloped land in Colorado Springs, which since 1972 had been zoned as a Planned Business Center ("PBC"). That classification required approval of a development plan before a building permit could be issued. SecurCare entered into an agreement with Amoco, pursuant to which one acre of the site would be sold to Amoco for the purpose of constructing a gas station, car wash, and convenience store. These uses were expressly designated as "permitted uses" in a PBC zoned district.

The City rejected Amoco's development plan on the ground that the proposed uses were incompatible with the surrounding neighborhood. The district court reversed the City's decision, holding that it was arbitrary and capricious for the City to find that an expressly permitted use was incompatible with the surrounding neighborhood. The Court of Appeals affirmed, holding that a zoning body limits its own discretion when it designates a use as one of right. To permit a zoning body to deny a proposed use that is expressly permitted by the zoning ordinance would render meaningless the distinction between a permitted use and a conditional use.

Comment: Note that the Colorado Supreme Court has granted certiorari on the very issue emphasized here the appropriateness of applying general standards in the comprehensive plan to deny zoning permission where the proposed use fits all express zoning standards. For a very different view of this issue, see Windward Marina, LLC v. City of Destin, 743 So. 2d 635 (Fla. 1st DCA 1999), discussed under the heading: "Zoning and Planning; Police Power."

ZONING AND PLANNING; POLICE POWER: Municipality has authority to deny marina permit under the general police power even though local ordinance does not specifically authorize decisions based upon impact of boat navigation on surrounding properties.

Windward Marina, LLC v. City of Destin, 743 So. 2d 635 (Fla. 1st DCA 1999).

A developer sought to construct a drydock marina near the mouth of a local harbor. The property in question had a zoning designation that permitted such uses, and all developer satisfied the specific requirements for marina use (various public permits). Nevertheless, the city council denied the development order on the basis that such construction and use would create a navigational boat hazard at the mouth of the harbor due to increased traffic.

Plaintiff argued, and the court agreed, that the city comprehensive plan and land development code did not address the fact that a development can be denied based upon the amount of boat traffic and its impact on surrounding uses.

But the plan and zoning code did contain a general provision authorizing City zoning authorities to take into account a variety of factors in evaluating whether to authorize any given activity, even when specific zoning standards were met:

     "The City shall ensure the compatibility of adjacent and   surrounding land uses. Land uses, as defined in Chapter 163, Part   II, Florida Statutes ["Growth Management Act"], includes, but is   not limited to, permitted uses, structures, and activities allowed   within the land use category or implementing zoning district.   Compatibility means a condition in which land uses or conditions   can coexist in relative proximity to each other in a stable fashion   over time such that no use or condition is unduly negatively   impacted directly or indirectly by another use or condition. The   compatibility of land uses is dependent on numerous   development characteristics which may impact adjacent or   surrounding uses. These include: type of use, density, intensity,   height, general appearance and aesthetics, odors, noise, smoke,   vibration, traffic generation, and nuisances."

The City found that the increased traffic generation would amount to a nuisance because it was incompatible with public safety concerns, and denied the permit.

The court upheld the permit denial, 21. The dissenting judge argued that to permit such broad standards for every zoning decision effectively sanctioned ad hoc decision making, as the City's discretion was so broad as to make zoning approvals into a standardless determination.  The judge noted that the determination here that a "nuisance" existed was not a finding of a common law nuisance, but rather a preference determination, and that such "preferences," where they occur should be made through clear and express standards applied generally:

     "The court today creates in effect a broad and nebulous exception   to every zoning ordinance. The new exception allows denial of   applications for building permits or other development orders   whenever municipal authorities decide on an ad hoc basis that a   use explicitly permitted by a zoning ordinance amounts to a   "nuisance." A nuisance explicitly permitted by a zoning ordinance   is a contradiction in terms. This new exception is at the very least   at odds with the proposition that, in order to assure "equality   before the law . . . regulations must be standard and criteria   reasonably certain."

The dissent noted, for instance that the record indicated that state and federal agencies expressly had found no navigational hazards in the proposed use, but that the City had concluded that such hazards existed based upon the testimony of three ship captains who already were using the harbor.

Reporter's Note: This case gives a municipality broad powers to reject developments on the basis of potential public nuisance. From speaking with plaintiffs' counsel, the subject of nuisance was never argued at any level of the litigation, but was the basis for the court upholding the denial of the permit.

Editor's Note 1: Comparing this case with SecurCare Self Storage, Inc. v. City of Colorado Springs, 987 P.2d 852 (Colo. App. 1998), pet. for cert. granted (Colo. 1999), discussed under the heading: "Zoning and Planning; Building Permits; Discretion," we find a very different attitude toward the level of discretion properly exercised by local planning authorities. This appears to be more than a mere difference in the phrasing of the laws and ordinances, but a fundamental disagreement as to the necessity for standards in zoning decision making.

Editor's Note 2: The infusion of the concept of "nuisance" into this case perhaps may relate to Constitutional concerns, as the U.S. Supreme Court has suggested in Lucas that downzoning, at least, is not compensable when it is used to combat a "common law nuisance," even when it reduces the value of the property controlled to zero. But can it be said that local planning agencies have the authority to choose between competing land uses and label the loser a "nuisance" in order to escape liability?

 

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