Daily Development for
Tuesday, October 13, 1998
by: Patrick A. Randolph, Jr.
Professor of Law
UMKC School of Law
Of Counsel: Blackwell Sanders Peper Martin
Kansas City, Missouri
ZONING AND PLANNING; COMPREHENSIVE PLAN; REFERENDUM: A rezoning of residential property pursuant to a municipality's general land plan is a legislative act subject to referendum.
Fritz v. City of Kingman, 957 P.2d 337 (Ariz. 1998).
The City of Kingman ("Kingman") adopted the Kingman General Plan on May 4, 1992 ("Plan") after holding public hearings and receiving citizen input. The Plan showed plaintiff's property to be in an area where densities could range from one to four dwelling units per acre. At the time the Plan was adopted, plaintiff's property was zoned to allow only one dwelling unit per acre. In 1997, upon plaintiff's request, Kingman adopted a zoning ordinance which changed the classification of plaintiff's property to allow up to four dwelling units per acre. A citizen group opposing the rezoning filed petitions with Kingman to refer the rezoning to a referendum. Kingman moved for summary judgment, arguing that the rezoning of plaintiff's property was done pursuant to the Plan, which it argued was legislation, and that the rezoning was thus an administrative act.
The Supreme Court of Arizona found that the rezoning was a legislative act. The court reasoned that the rezoning was a definite, specific act or resolution enacted by a legislative body, and that the Plan was merely a guide or statement of policies and preferences.
Comment 1: The editor is unfamiliar with whether holdings in other jurisdictions are consistent with the definition of "legislative act" here. The court cites only one decision, in Utah, and disagrees with that case. It should be noted that the General Plan in effect in Tucson in this case stated specifically that is was not determinative of any zoning issues, but merely advisory. State law in Arizona apparently does not elevate the general plan to the level of signficance it has (or at least has had) in states like Oregon.
Comment 2: A number of jurisdictions take seriously the distinction between "legislative" and "administrative" zoning activity. There can be significant procedural differences and differences as to the manner and standard of review, even Constitutional Due Process differences.
Whether a decision is "legislative" for referendum purposes may not be determinative of the question of whether it is "quasiadjudicative" for purpose of Due Process analysis, where relevant. In this case, for instance, the zoning decision apparently affected one tract of land owned by one landowner. Nevertheless, the determination here that the decision was legislative in character certainly will be something for analysts to consider when resolving other classification issues. As a decision of state Supreme Court in a case with significant growth control problems, this case is potentially an important precedent.
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 16, 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 firstname.lastname@example.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.