Daily Development for Wednesday, November 15, 2006
by: Patrick A. Randolph, Jr.
Elmer F. Pierson Professor of Law
UMKC School of Law
Of Counsel: Blackwell Sanders Peper Martin
Kansas City, Missouri

ZONING AND LAND USE; SPECIAL USE PERMITS; REVIEW: Although a zoning appeals board interprets its list of special exceptions to encompass a new use not contemplated by the original drafters of the ordinance, its interpretation is a permissible exercise of its delegated authority and not impermissible “legislation” if its purpose is to resolve an existing controversy and its interpretation has the effect of determining the legal rights at stake.

Green v. Hancock County Board of Zoning Appeals, 851 N.E.2d 962 (Ind. Ct. App. 2006). 

Neighbors sought judicial review of the decision of a county board of zoning appeals (“BZA”) that granted Holmea, a  property owner, a special exception to construct a banquet hall/wedding reception facility on her property, which was located  in an agricultural zoning district. 

The primary issue raised on appeal was whether the trial court erred in concluding that the BZA properly interpreted its zoning ordinance by determining that defendant Holmes’ proposed banquet hall/wedding reception facility fell within the special exception of “commercial recreational use,” as provided for in the Hancock County zoning ordinance.  The ordinance stated that only activities listed as permitted “special exceptions” could be considered by the BZA.  The neighbors argued that in interpreting the ordinance to mean that a banquet hall/wedding reception facility was a “commercial recreational use,” the BZA created, in essence, a new exception not contemplated by the drafters of the ordinance. 

More specifically, the neighbor appellants argued that (1) by its interpretation the BZA was acting unconstitutionally as a quasi-legislative body, and (2) even if such an interpretative method is allowed, the interpretation here was unreasonably broad. 

The Court of Appeals of Indiana first found that a zoning board of appeals may properly determine that a particular use that was not contemplated by an enumerated list of special exceptions may nonetheless fit within one of those enumerated exceptions.  The court said that this form of decision-making is analogous to what a court does when it attempts to give effect to a statute’s underlying purpose when presented with specific questions that were not contemplated when the statute was enacted.  Thus, the BZA had the authority to interpret its own zoning ordinance in its role as a quasi-judicial body.

Second, the BZA provided sufficient evidence that it had properly established that defendant Holmes’ proposed use complied with the statutory criteria for special exceptions, and fit within the enumerated category of “commercial recreational use.”  In so finding, and consistent with its analysis on the first point, the court applied the same rules as those employed for the construction of statutes.  It concluded that such a  “general and prospective” decision of a board of zoning appeals is not an abuse of discretion if its purpose is to resolve an existing controversy and its interpretation has the effect of determining the legal right.

Since the BZA was found to have acted within its authority as a quasi-judicial body, and complied with all applicable statutory criteria in ruling on defendant Holmes’ application for a special exception, the court affirmed the judgment of the trial court.

Comment 1: It’s all a matter of degree, of course.  But where the drafters of the ordinance use such a broad description as “commercial recreation facility” to describe what uses can be granted special exceptions, those affected by the ordinance must anticipate that the BZA is authorized to consider many varied activities.  Note that the nature of the use is only the first step, and the BZA then is instructed to evaluate measures by which the impact of the proposed use on the balance of the agriculturally zoned property in the area can be mitigated.

Even though those drafting the ordinance might not have thought of banquet halls, there are many other “commercial recreation facilities” - such as stock car racing, soccer stadiums, and a legion of other activities that the neighbors would have found far less desirable that would have fit easily within the definition.  They should consider themselves lucky that all they have to contend with is a few drunken wedding guests.

Comment 2: The real question, probably, is whether it is permissible for a legislative organ to delegate to a subordinate appointed agency the power to “fill in” such a broad definition of permitted uses.  In short, although the BZA properly fulfilled its assignment here, was the assignment in fact too broad?  The court didn’t really address this issue, and likely it would have been a loser anyway, given the need to coordinate the myriad demands of the society within a land use scheme.  The use of a board that regularly reviews the question of impacts and propriety of use through a broad delegation of authority makes practical sense, even if it is somewhat inconsistent with the notion of elected leaders making policy.  It’s the nature of the beast.  

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