Daily Development for Wednesday, December 17, 2003 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; REVIEW; STANDARDS; "HEALTH AND WELFARE." The Court will only reverse a Planning Commission's decision if the evidence, viewed as a whole, demonstrates that the Commission's conclusions of fact are clearly erroneous, but court may make its own determination as to whether the commission made considered followed the appropriate decision making practice, including whether the ordinance sets forth sufficient specific standards. Decisions based upon "public health, safety and general welfare" are not acceptable because they provide no basis for review. Van Vactor Farms, Inc. v. Marshall County Plan Commission, 793 N.E. 2d 1136 (Ind. App. 2003). Van actor filed its original application for a preliminary plat approval of a subdivision to be named "Prairie Meadows". The subdivision was to be located on farmland owned by Van Vactor, which was zoned agricultural with a provision allowing single family dwellings to be built. The subdivision was to be located on land situated in the countryside of Marshall County and adjacent to Olive Trail, which runs north and south on the east side of the land, and Twelfth Road, which runs east and west on the south side of the land. Both roads are two-lane, rural roads used frequently by farmers to transport farm machinery and which provide the only access to the proposed subdivision. Several lakes, including Myers Lake and Lawrence Lake, are located on the south side of Twelfth Road, directly opposite the proposed subdivision site. The Commission conducted several hearings and was concerned that the roadways could not safely accommodate additional traffic, that a risk of ground water contamination existed due to septic tank use, and that there were risks associated with the application of wastewater sludge on the farmland for many years. As a result, the Commission denied the application. Van Vactor appealed to the Trial Court for a writ of certiorari. The Trial Court denied relief and Van Vactor appealed to the Court of Appeals of Indiana raising the following issues: (1) whether the reasons relied upon by the Commission to deny the preliminary plat approval were and based upon sufficiently specific and concrete provisions of the subdivision ordinance so as to provide Van Vactor fair notice of what would be required for the parcel of land to be subdivided; (2) whether the evidence was sufficient to support the Commission's determination; and (3) whether the Commission's decision was illegal, arbitrary and capricious. The Court stated that it would only reverse the Commission's decision if the evidence, viewed as a whole, demonstrated that the Commission's conclusions were clearly erroneous. If, however, the party alleges that the Commission committed an error of law, deference would not be afforded and reversal would be appropriate if an error of law is demonstrated. In considering Van Vactor's allegation that the Commission's findings of fact and conclusions did not refer to any of the specific and concrete standards contained in the Ordinance and relied upon standards extrinsic to the Ordinance, the Court noted that while the Commission's only task in reviewing an application for preliminary plat approval was to determine whether the proposed plat complied with the concrete standard set forth in the subdivision control ordinance, it agreed with Van Vactor that the Ordinance set forth only general principals and standards that could not support the Commission's denial of a preliminary plat approval. Accordingly, to the extent that the Commission's findings of fact and conclusions concerned the on-site septic systems and the waste water sludge, which were decided by the Commission under a section of the Ordinance setting forth only general principals and standards, that the Commission did not rely upon concrete and specific standards in denying plat approval. The Court found that mere reliance by the Commission upon public health, safety, and general welfare was too indefinite to provide Van Vactor with notice of the nature in which its plat did not comply with the requirements of the Ordinance. The Court did find, however, that the Commission's decision with respect to the roadways and traffic were based upon concrete and specific provisions of the Ordinance requiring certain design specifications for the bordering roads. The Commission's findings and conclusions concerning the roadways and traffic related to specific provisions of the Ordinance in a way that provided fair notice to Van Vactor. In considering Van Vactor's argument that the Commission's findings and conclusions were not supported by sufficient evidence, the Court concluded that the Commission was presented with confident and sufficient evidence, the Court concluded that the Commission was presented with confident and sufficient evidence from which it could base its decision. The Court concluded that Van Vactor's final argument that the Commission's decision was illegal, arbitrary, and capricious, failed because Van Vactor had not established that the Commission's comments satisfied this heightened burden. As a result, the Court affirmed. Comment: For cases suggesting a broader notion of permitted bases for local zoning decisions, see City of Colorado Springs v. SecurCare Self Storage, Inc., 10 P.3d 1244 (Colo. 2000) (the DIRT DD for 12/21/01) (Zoning agency may provide that certain uses within an identified district are "permitted" but nevertheless retain the right to review each proposed use on the basis of "neighborhood compatibility."); Marina, LLC v. City of Destin, 743 So. 2d 635 (Fla. 1st DCA 1999) (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.)(the DIRT DD for 8/10/00, which also discusses the lower court decision in Securcare). ZONING AND LAND USE; VARIANCES; REVIEW: Reviewing court must defer to judgment of local planners on aesthetics, must affirm denial of variance even if the primary basis for denial is aesthetic. Britton v. Zoning Board of Appeals of Gloucester, 794 N.E.2d 1198 (Mass. App. Ct. 2003). Plaintiffs applied for a special permit to build an addition to their nonconforming single-family house on their nonconforming lot. The plaintiff's application sought permission to erect an 8-foot high second story addition on the landlord-half of the house. The addition would accommodate a new master bedroom, a full bath, a small alcove and a new stairway in an exterior shaft. The shaft would extend beyond the current footprint of the house in the right yard setback but not farther than another portion of the house already extends. The Zoning Board of Appeals denied the plaintiff's application based on concerns about precedent and aesthetics. The plaintiffs appealed to Superior Court. The Trial Judge found that the expansion would "not create any additional noises [or] odors and will not interfere with the air, light and breezes currently enjoyed by neighbors." The Judge found that there was nothing about the addition which would have a detrimental impact on the neighborhood and disagreed with the Board's determination that the proposed addition would be "substantially more detrimental than the existing nonconforming structure . . . to the neighborhood." On the basis of her findings, the Judge ordered the judgment enter annulling the Board's decision and granting the plaintiff's permit application. On appeal: Held: Reversed: The Appeals Court of Massachusetts observed that expansion of nonconforming uses and structures is governed by G.L. c. 40A, 6 which requires a 2-step analysis. The first step focused on whether the proposed addition or expansion would increase the structure's non- conforming nature. If the answer is no, the applicant is entitled to build. If the answer is yes, the applicant may build only if he or she attains a special permit issued by the Special Permit Granting Authority upon a finding that the proposed addition will not be substantially more detrimental to the neighborhood than the existing nonconforming structure. Because, in this case, on the basis of the application of step one, it was clear that the proposed addition would increase the nonconforming nature of the house, the Court focused on the question of substantial detriment. The court concluded that the trial court should have affirmed the Board's decision unless it found that denial of the application was "based on a legally untenable ground or [was] unreasonable, whimsical, capricious or arbitrary." More specifically, when reviewing a denial of an application for a permit governed by G.L. c. 40A, 6, the question for the court was whether, on the facts the judge had found, any rational board could conclude that the addition or alteration the applicants proposed would be substantially more detrimental to the neighborhood than the existing structure. The Court found that while the Board's concern regarding the precedential effect of granting the plaintiff's permit application was not entitled to deference, the Board's concern for aesthetics was. In assessing the addition's aesthetic impact, the Court noted that while the trial judge found it would not create any additional noises or odors and would not interfere with the air, light and breezes currently enjoyed by the neighbors, it was the Board's evaluation of the seriousness of the problem, not the trial judge's which should have been controlling. Accordingly, the Court found that the deference owed to the Board regarding the seriousness or the adverse aesthetic impact the plaintiff's addition would produce should not have been overridden. Comment: Note that if variance decisions are based entirely on aesthetics, as this one appears to have been, there are few denials of variance that will, as a practical matter, be reviewable. When we're talking about variances, this may be appropriate. A variance is always a judgment call, and necessarily the local officials are closest to the problem. We just have to pretend that parochialism and local politics won't unduly affect the outcome. Compare: Van Vactor Farms, Inc. v. Marshall County Plan Commission, 793 N.E. 2d 1136 (Ind. App. 2003), discussed above, where an Indiana court concluded that an ordinance providing for subdivision approval must provide sufficient concrete standards to establish a basis for review. Would "aesthetics" provide such a basis? 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