Daily Development for Friday, December 21, 2001

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

ZONING AND LAND USE; REVIEW; AGENCY DISCRETION:

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."

City of Colorado Springs v. SecurCare Self Storage, Inc., 10 P.3d 1244 (Colo. 2000).

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. It noted that its Zoning Code expressly provided as a standard whether the "proposed land uses [will] be compatible 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.

On appeal: Held: Reversed.

The Colorado Supreme Court noted that the zoning ordinance stated that one of the purposes for the development plan requirement was to deal with the fact that "[a]ll combination of permitted uses and development standards in a zoning district may not be appropriate at a particular location." Consequently, it concluded that the city had delineated in its ordinance a discretionary function regarding every development plan that overrode the specific "permitted use" designation.

As to the distinction between conditional uses and permitted uses, the court accepted the City's explanation that there were other distinctions in the code that still existed. Readers are free to examine this language themselves to determine whether they view these distinctions as significant. In the editor's view, the court didn't really feel that the issues here turned upon whether there were remaining distinctions between the two types of uses. Rather, it felt that the City had reserved discretion over development plans, and that was that.

The real problem for the court lay in prior decisions of the Colorado Supreme Court and Court of Appeals that suggested that the "neighborhood compatibility" standard conferred more discretion than was permitted by the state's zoning enabling statute. In a 1973 decision, the court had said that if the Code had established that a use was a permitted use under discrete criteria, then it could not be rejected on the generalized grounds of neighborhood compatibility, and a County zoning ordinance providing for such discretion was found to be invalid as not enabled by Colorado statutes.

The court here distinguished the prior case by pointing out that Colorado Springs, a charter city, has broader zoning powers than those conferred by the enabling act, and is free to reserve to itself broader discretion. The court cited no authority for this proposition nor did it demonstrate where precisely the state Constitution conferred this broader authority.

A dissenting opinion from two members of the court challenged the conclusion that zoning authorities properly should have such broadly defined discretionary authority:

"Land use regulation in general represents an uneasy compromise between private landowner rights and community interests . . . Zoning identifies the permissible and impermissible uses of specific parcels of property, and is accomplished through a formal process involving notice and opportunity to protest. . . If a permitted use becomes incompatible either through an environmental concern or a change of circumstances . . . the proper procedure is to amend the zoning resolution."

Comment 1: In the editor's view, this decision pins squarely to the table, despite efforts to squirm away, the unavoidable conflict between planners and property owners. Planners in the modern society conclude that the market moves too quickly to regulate by explicit and concrete use identifiers, and impacts are always relative - leading to a need for ad hoc balancing of impacts to insure the best outcome.

The property owners would probably concede that expert planners, acting always with complete integrity, likely could better short term results with "micro-planning" based upon broad discretion. But they would contend that broader market-based processes, if permitted to operate, will bring about the most desirable combination of uses in the long run in any event. Thus, they would argue that the flexibility that planners demand is less critical to good land use decision making than might first appear.

The landowners then would go on to point out that the assumptions that planners are always expert and always act with integrity are demonstrably invalid. In matters as critical to the sense of freedom in society as controlling land use, the political process must be perceived of as fair and open to broad community participation. This can only happen if standards are adopted in a participatory process and applied in an even handed fashion.

In short, it's the pinheads versus the cowboys. Where does the editor stand? Yahoo!!!!

Comment 2: Having uttered his whoop, the editor backs away from necessarily viewing this case as the final battleground. The case does *not* stand for the proposition that zoning can be carried out exclusively on case by case judgments as to neighborhood compatibility of proposed uses. The zoning ordinance provides a process for clearing uses as permitted or conditionally permitted, and the zoning authority doesn't even exercise its review for compatibility until the development plan has been distilled through a number of regulatory filters. Each of these filters provides for some public and political participation.

As a planning technique, the editor does not see this process as necessarily unworkable, providing that the ultimate analysis of compatibility honors the intent of the planning process so that proposed plans typically are approved and rejection occurs only in extraordinary circumstances where the incompatibility is patent, despite efforts to reduce such conflicts by classifying uses.

As a politically acceptable standard for zoning decisions, however, the editor has some concerns. Lawyers in the trenches know very well that broad discretion in these planning bodies often results in planning decisions that are unprincipled, if not downright corrupt (or at least would raise a reasonable suspicion of corruption.) Human beings are fallible and corruptible, and regulatory systems should involve methods of making important decisions that provide some protection these weaknesses. Of equal importance, the public must, by access to transparent decision making processes, be able to see for itself that the protection works. Does the Colorado Springs process meet that standard? Yes (5-2). Editor's vote didn't count.

Comment 3: For a view supporting the court's here, see Windward 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.)

Readers are urged to respond, comment, and argue with the daily development or the editor's comments about it.

Items in the Daily Development section generally are extracted from the Quarterly Report on Developments in Real Estate Law, published by the ABA Section on Real Property, Probate & Trust Law. Subscriptions to the Quarterly Report are available to Section members only. The cost is nominal. For the last six years, these Reports have been collated, updated, indexed and bound into an Annual Survey of Developments in Real Estate Law, volumes 1‑6, published by the ABA Press. The Annual Survey volumes are available for sale to the public. For the Report or the Survey, contact Maria Tabor at the ABA. (312) 988 5590 or mtabor@staff.abanet.org

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