Daily Development for Tuesday, February 22, 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; PROCEDURE; REMEDIES; INJUNCTION: Courts are without authority to compel a county to rezone a parcel of property.

Mehlhorn v. Pima County, 978 P.2d 117 (Ariz. App. Div. 3 1998).

The Mehlhorns entered into a contract for the sale of property they owned, which sale was conditioned upon the rezoning of the property from light industrial to general industrial. The Mehlhorns applied to the Planning and Zoning Commission, which unanimously recommended rezoning to the Board of Supervisors. The Board voted against the rezoning. The Mehlhorns appealed to the trial court. The trial court entered judgment in favor of the Mehlhorns and ordered the Board to pass an ordinance allowing the rezoning. Pima County appealed the trial court's order.

On appeal, the County argued that the court was without jurisdiction to grant affirmatively a rezoning because such action would constitute a legislative function. The Court of Appeals of Arizona agreed, reasoning that it was well-settled law that the enactment of zoning ordinances is a matter reserved to the legislative branch of government, and that amendments to such zoning ordinances are therefore a legislative function as well.

The court did note that courts do have the ability to overturn zoning decisions that are arbitrary and not fairly debatable. "[I]f the value of the property rights destroyed is so great, as compared with the benefit done, that it clearly appears the ordinance is arbitrary and unreasonable, the courts will interfere, but if there can be any reasonable argument on the question the legislative will must prevail."

But, here, the court refused even to apply that generous test: "As the County points out, that "arbitrary decision" test has been invoked when landowners seeking rezoning have challenged the existing zoning, as applied to their property, as unconstitutional or unreasonable because of confiscatory or economic effect. In marked contrast to those cases, appellees here did not challenge the property's current zoning nor did they allege any taking by the state or other deprivation; indeed, at oral argument appellees' counsel conceded that the existing zoning is not unreasonable and does not vitiate their economic interests. Under these circumstances, we do not believe the fairly debatable test applies."

The court goes on to say that the review of the zoning decision in this case is totally "off the table" when there is no showing that existing zoning is unreasonable, even when the decision not to rezone is clearly wrong or even biased. "Since we hold that the decision to rezone is a legislative one, neither the motives of the [political entity] in denying the application for rezoning nor the reasons that were spread before them to induce the denial of the rezoning request are proper subjects for judicial inquiry. . .

When both the current and the proposed zoning are appropriate for the property, "the legislative body has the prerogative to choose the applicable classification, not the property owner or the courts. . . . Judicial review in zoning cases is limited to consideration of the reasonableness of existing zoning; it does not permit usurpation of the legislative prerogative to enact zoning ordinances."

Comment 1: Remember the old Oregon cases drawing a distinction between rezoning decisions that affected a wide spectrum of property and those that affected only individual parcels? In the latter case, the Oregon courts (at least in the old days), would have treated such decisions as "quasi-judicial" and subject to a different standard. The editor is not certain that such an approach would be taken for a refusal to rezone, but what's the real difference? Zoning authorities have wide discretion to categorize properties in "holding zones" that arguably are appropriate (under the wide discretion available) but which the authority frequently will rezone parcels or areas as needs arise. In such cases, where such decisions are the everyday stuff of land use permitting, shouldn't the individual decisions be subject to judicial scrutiny?

Comment 2: The decision involving an individual parcel of land may indeed involve broad policy issues, but that is true of most adjudications. The danger of injustice and even corruption affecting the decision as applied to an individual owner with a relatively small parcel is great enough that the couirts ought to exercise a review function.

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

Items reported here and in the ABA publications are for general information purposes only and should not be relied upon in the course of representation or in the forming of decisions in legal matters. The same is true of all commentary provided by contributors to the DIRT list. Accuracy of data and opinions expressed are the sole responsibility of the DIRT editor and are in no sense the publication of the ABA.

Parties posting messages to DIRT are posting to a source that is readily accessible by members of the general public, and should take that fact into account in evaluating confidentiality issues.

ABOUT DIRT:

DIRT is an Internet discussion group for serious real estate professionals. Message volume varies, but commonly runs 5 ‑ 10 messages per workday.

Daily Developments are posted every workday.

To subscribe to Dirt, send an e-mail to:

To:	ListServ@listserv.umkc.edu
Subject:	[Does not matter]
Text in body of message	Subscribe Dirt [your name]

To cancel your subscription to Dirt, send an e-mail to:

To:	ListServ@listserv.umkc.edu
Subject:	[Does not matter]
Text in body of message	Signoff Dirt

For information on other commands, send the message Help to the listserv address.

DIRT has an alternate, more extensive coverage that includes not only commercial and general real estate matters but also focuses specifically upon residential real estate matters. Because real estate brokers generally find this service more valuable, it is named “Brokerdirt.” But residential specialist attorneys, title insurers, lenders and others interested in the residential market will want to subscribe to this alternative list. If you subscribe to Brokerdirt, it is not necessary also to subscribe to DIRT, as Brokerdirt carries all DIRT traffic in addition to the residential discussions.

To subscribe to Brokerdirt, send an e-mail to:

To:	ListServ@listserv.umkc.edu
Subject:	[Does not matter]
Text in body of message	Subscribe Brokerdirt [your name]

To cancel your subscription to Brokerdirt, send an e-mail to:

To:	ListServ@listserv.umkc.edu
Subject:	[Does not matter]
Text in body of message	Signoff Brokerdirt

DIRT is a service of the American Bar Association Section on Real Property, Probate & Trust Law and the University of Missouri, Kansas City, School of Law. Daily Developments are copyrighted by Patrick A. Randolph, Jr., Professor of Law, UMKC School of Law, but Professor Randolph grants permission for copying or distribution of Daily Developments for educational purposes, including professional continuing education, provided that no charge is imposed for such distribution and that appropriate credit is given to Professor Randolph, DIRT, and its sponsors.

DIRT has a WebPage at: http://www.umkc.edu/dirt/