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

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

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

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

Readers are encouraged to respond to or criticize this posting.

Items reported on DIRT and in the ABA publications related to it  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 provided and opinions expressed  by the DIRT editor 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


DIRT is an internet discussion group for serious
real estate professionals. Message volume varies,
but commonly runs 5 - 15 messages per work day.

Daily Developments are posted every work day.  To
subscribe, send the message

subscribe Dirt [your name]



To cancel your subscription, send the message
signoff DIRT to the address:


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 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 the message

subscribe BrokerDIRT [your name]



To cancel your subscription to BrokerDIRT, send the message
signoff BrokerDIRT to the address:


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:

Members of the ABA Section on Real Property, Probate
and Trust Law or of the National Association of Realtors can subscribe to a quarterly hardcopy report that includes all DIRT Daily Developments, many other cases, and periodic reviews of real estate oriented literature and state legislation by contacting Antonette Smith at (312) 988 5260 or asmith4@staff.abanet.org