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Daily Development for Friday, May 9, 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; REZONING; REVIEW: When a
zoning
authority approves the rezoning of
one parcel of land, but fails to approve
the rezoning of other property similarly situated, a court may
reverse the
determination on the basis
that the zoning authority has acted in an
arbitrary and capricious manner, even when there is some
arguable
support for the decision not to
rezone in the abstract.
Board of Commissioners v. Parker, 88 S.W.3d 916 (Tenn
Ct. App.
2002) (appeal
denied).
Plaintiffs owned a nine-acre parcel of property on
which they housed a
tiger. This
activity was permitted by the A-1 zoning classification of the
plaintiffs' property. Apparently in response to
neighborhood alarm about
the tiger, the
zoning Board enacted a zoning ordinance which established
a new zoning district, A-2 Special Agricultural
District. The A-2 zoning
district
was created for agricultural uses that might be a threat to
the
health, safety and welfare of county
residents, and included a number of
special requirements.
Interestingly, though tangential to this case,
plaintiffs never rezoned their
original
tract, since no amendment was made to restrict the keeping of
exotic pets as a permitted special use. In
fact, plaintiffs considerably
expanded
their use from one tiger to over 50 "class one" animals -
(apparently these are the big, mean kind) including
lots of lions and
tigers.
Although the Board never heard from the plaintiffs
concerning rezoning,
it did get a
rezoning petition for an A-2 zone from another landowner,
who indicated that her primary use would be to house
small animals,
although she indicated
that she might take some larger zoo animals who
were rehabilitating. The Board granted the rezoning, although
the
landowner in fact never undertook to
keep any dangerous animals on the
property.
Later, plaintiffs acquired several properties
adjacent to their original
tract, and
petitioned the Board to rezone those properties A-2 so they
could also use those properties for the keeping of
exotic animals.
(Although it now appears
that these other properties, zoned A-1,
probably didn't even need to be changed, the parties assumed at the
time
that a change was
necessary.) The Board refused to grant the
rezoning,
and the trial court
affirmed.
On appeal: Held: Reversed.
The appeals court determined the Board's denial of the
plaintiff's
rezoning request was
arbitrary and capricious, in large part due to the
Board's rezoning of the prior applicant's land to
from residential to A-2.
The Court
noted that the Board could point to no reason for
discriminating between the rezoning requests of the
two property owners
and reasoned that the
plaintiffs' property was even more qualified to be
rezoned A-2, since it was already zoned agricultural
(A-1 zoning).
The Board argued that even where discrimination is
patent, if the
outcome can be based upon
some "reasonable basis, it is not forbidden.
It noted that the concern of protecting the public health and
safety was
clearly at issue here in its
reluctance to dramatically expand the area
available for plaintiffs to maintain dangerous wild animals.
Although the
court's response here is
very difficult to make out, it seems that the court
stated that even if the Board could arguably support
the refusal to grant
the zone on the
basis fo public health and safety, the fact that it had
granted the zoning to another similarly situated
party indicated that it was
in fact
making its "public safety" determinations arbitrarily, and
therefore
inappropriately. Although
the other party in fact did not intend to keep
wild animals in the same way that plaintiffs did, the zoning
category
granted to her permitted that
activity. The court also noted that the other
party actually didn't meet all the preconditions for
the special zone, since
her land abutted
a residentially zoned area, while that was not true of the
plaintiff's property.
In addition, the Court held that the creation of A-2
zoning did not in any
way limit the uses
that could be made of land zoned A-1. Consequently,
the plaintiffs did not need to have any of their
property rezoned A-2 in
order to house
exotic animals thereon.
Comment 1: Treasure this one, developer
lawyers. You won't see many
courts
looking this carefully at a denial of a zoning classification.
Essentially the court is importing "due process"
reasoning into the
analysis of a
discretionary zone change. Many other jurisdictions have
concluded that there is no property right to a zone
change, and have
stayed far away from any
substantive review of such decisions. This case
is particularly noteworthy because, as the court
appears to concede, in the
abstract the
Board might have been warranted in refusing to grant the
zone change, had it never had an application from
anyone else.
Comment 2: The case illustrates why lawyers
representing agencies really
need to be
sticklers for using the right device for any given purpose.
Often, when a landowner comes to the agency proposed
use that is
outside current zoning, but
desirable, the agency will respond with a
relatively broad alteration in rules that permits far more than
the
applicant had requested. Sometimes
this kind of activity will "bite
back"when the applicant sells to someone with a far more
aggressive
plan, but here we see another
kind of bite back - the agency gets accused
of arbitrary conduct when it refuses to provide similarly
broad
permission to others with similarly
situated property, even though their
proposed use is a lot more disturbing than that proposed in the
original
application.
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posting.
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