The Zoning System

2. The Zoning System

 

2.1. Introduction

 

A SAMPLE STATE ZONING ENABLING ACT

 

 

 

 

Section 1. Grant of Power

 

 

For the purpose of promoting health, safety, morals, or the general welfare of the community, the legislative body of cities and incorporated villages is hereby empowered to regulate and restrict the height, number of stories and size of buildings and other structures, the percentage of lot that may be occupied, the size of yards, courts, and other open spaces, the density of population and the location and use of buildings, structures and land of trade, industry, residence or other purposes.

 

 

 

 

Section 2. Districts

 

 

For any or all of said purposes the local legislative body may divide the municipality into districts of such number, shape, and area as may be deemed best suited to carry out the purposes of this act; and within such districts it may regulate and restrict the erection, construction, reconstruction, alteration, repair, or use of buildings, structures , or land. All such regulations shall be uniform for each class or kind of building throughout each district, but the regulations in one district may differ from those n other districts.

 

 

 

 

Section 3. Purposes in View

 

 

Such regulations shall be made in accordance with a comprehensive plan and designed to lessen congestion in the streets; to secure safety from fire, panic, and other dangers; to promote health and the general welfare; to provide adequate light and air; to prevent the overcrowding of land; to avoid undue concentration of population; to facilitate the adequate provision of transportation, water, sewerage, schools, parks, and other public requirements, Such regulations shall be made with reasonable consideration, among other things, to the character of the district and its peculiar suitability for particular uses, and with a view to conserving the value of buildings and encouraging the most appropriate use of land throughout such municipality.

 

 

 

 

Section 4. Method of Procedure

 

 

The legislative body of such municipality shall provide for the manner in which such regulations and restrictions and the boundaries of such districts shall be determined, established, and enforced, and from time to time amended, supplemented, or changed. However, no such regulation, restriction, or boundary shall become effective until after a public hearing in relation thereto, at which parties in interest and citizens shall have an opportunity to be heard. At least 15 days’ notice of the time and place of such hearing shall be published in an official paper, or a paper of general circulation, in such municipality.

 

 

 

 

Section 5. Changes

 

 

Such regulations, restrictions, and boundaries may from time to time be amended, supplemented, changed, modified, or repealed. In case, however, of a protest against such change, signed by the owners of 20 per cent or more either of the area of the lots included in such proposed change, or of those immediately adjacent in the rear thereof extending ______ feet there from, or of those directly opposite thereto extending ______ feet from the street frontage of such opposite lots, such amendment shall not become effective except by the favorable vote of three-fourths of all the members of the legislative body of such municipality. The provisions of the previous section relative to public hearings and official notice shall apply equally to all changes or amendments.

 

 

 

 

Section. 6. Zoning Commission

 

 

In order to avail itself of the powers conferred by this act, such legislative body shall appoint a commission, to be known as the zoning commission, to recommend the boundaries of the various original districts and appropriate regulations to be enforced therein. Such commission shall make a preliminary report and hold public hearings thereon before submitting its final report, and such legislative body shall not hold its public hearings or take action until it has received the final report of such commission. Where a city plan commission already exists, it may be appointed as the zoning commission.

 

 

 

 

Section 7. Board of Adjustments

 

 

Such local legislative body may provide for the appointment of a board of adjustment, and in the regulations and restrictions adopted pursuant to the authority of this act may provide that the said board of adjustment may, in appropriate cases and subject to appropriate conditions and safeguards, make special exceptions to the terms of the ordinance in harmony with its general purpose and intent and in accordance with general or specific rules therein contained.

 

The board of adjustment shall consist of five members, each to be appointed for a term of three years and removable for cause by the appointing authority upon written charges and after public hearing. Vacancies shall be filled for the unexpired term of any member whose term becomes vacant.

 

The board shall adopt rules in accordance with the provisions of any ordinance adopted pursuant to this act. Meetings of the board shall be held at the call of the chairman and at such other times as the board may determine. Such chairman, or in his absence the acting chairman, may administer oaths and compel the attendance of witnesses. All meetings of the board shall be open to the public. The board shall keep minutes of its proceedings, showing the vote of each member upon each question, or, if absent or failing to vote, indicating such fact, and shall keep records of its examinations and other official actions, all of which shall be immediately filed in the office of the board and shall be a public record.

 

Appeals to the board of adjustment may be taken by any person aggrieved or by any officer, department, board, or bureau of the municipality affected by any decision of the administrative officer. Such appeal shall be taken within a reasonable time, as provided by the rules of the board, by filing with the officer from whom the appeal is taken and with the board of adjustment a notice of appeal specifying the grounds thereof. The officer from whom the appeal is taken shall forthwith transmit to the board all the papers constituting the record upon which the action appealed from was taken.

 

An appeal stays all proceedings in furtherance of the action appealed from, unless the officer from whom the appeal is taken certifies to the board of adjustment after the notice of appeal shall have been filed with him that by reason of facts stated in the certificate a stay would, in his opinion, cause imminent peril to life or property. In such case proceedings shall not be stayed otherwise than by a restraining order which may be granted by the board of adjustment or by a court of record on application on notice to the officer from whom the appeal is taken and on due cause shown.

 

The board of adjustment shall fix a reasonable time for the hearing of the appeal, give public notice thereof, as well as due notice to the parties in interest, and decide the same within a reasonable time. Upon the hearing any party may appear in person or by agent or by attorney. The board of adjustment shall have the following powers:

 

    1. To hear and decide appeals where it is alleged there is error in any order, requirement, decision, or determination made by an administrative official in the enforcement of this act or of any ordinance adopted pursuant thereto.

       

 

    1. To hear and decide special exceptions to the terms of the ordinance upon which such board is required to pass under such ordinance.

       

 

    1. To authorize upon appeal in specific cases such variance from the terms of the ordinance as will not be contrary to the public interest, where, owing to special conditions, a literal enforcement of the provisions of the ordinance will result in unnecessary hardship, and so that the spirit of the ordinance shall be observed and substantial justice done.

       

 

 

 

In exercising the above-mentioned powers such board may, in conformity with the provisions of this act, reverse or affirm, wholly or partly, or may modify the order, requirement, decision, or determination appealed from and may make such order, requirement, decision, or determination as ought to be made, and to that end shall have all the powers of the officer from whom the appeal is taken.

 

The concurring vote of four members of the board shall be necessary to reverse any order, requirement, decision, or determination of any such administrative official, or to decide in favor of the applicant on any matter upon which it is required to pass under any such ordinance, or to effect any variation in such ordinance.

 

Any person or persons, jointly or severally, aggrieved by any decision of the board of adjustment, or any taxpayer, or any officer, department, board, or bureau of the municipality, may present to a court of record a petition, duly verified, setting forth that such decision is illegal, in whole or in part, specifying the grounds of the illegality. Such petition shall be presented to the court within 30 days after the filing of the decision in the office of the board. Upon the presentation of such petition the court may allow a writ of certiorari directed to the board of adjustment to review such decision of the board of adjustment and shall prescribe therein the time within which a return thereto must be made and served upon the realtor’s attorney, which shall not be less than 10 days and may be extended by the court. The allowance of the writ shall not stay proceedings upon the decision appealed from, but the court may, on application, on notice to the board and on due cause shown, grant a restraining order.

 

The board of adjustment shall not be required to return the original papers acted upon by it, but it shall be sufficient to return certified or sworn copies thereof or of such portions thereof as may be called for by such writ. The return shall concisely set forth such other facts as may be pertinent and material to show the grounds of the decision appealed from and shall be verified.

 

If, upon the hearing, it shall appear to the court that testimony is necessary for the proper disposition of the matter, it may take evidence or appoint a referee to take such evidence as it may direct and report the same to the court with his findings of fact and conclusions of law, which shall constitute apart of the proceedings upon which the determination of the court shall be made. The court may reverse or affirm, wholly or partly, or may modify the decision brought up for review.

 

Costs shall not be allowed against the board unless it shall appear to the court that it acted with gross negligence, or in bad faith, or with malice in making the decision appealed from.

 

All issues in any proceeding under this section shall have preference over all other civil actions and proceedings.

 

 

 

 

Section 8. Enforcement and Remedies

 

 

The local legislative body may provide by ordinance for the enforcement of this act and of any ordinance or regulation made there under. A violation of this act or of such ordinance or regulation is hereby declared to be a misdemeanor, and such local legislative body may provide for the punishment thereof by fine or imprisonment or both. It is also empowered to provide civil penalties for such violation.

 

In case any building or structure is erected, constructed, reconstructed, altered, repaired, converted, or maintained, or any building, structure, or land is used in violation of this act or of any ordinance or other regulation made under authority conferred hereby, the proper local authorities of the municipality, in addition to other remedies, may institute any appropriate action or proceedings to prevent such unlawful erection, construction, reconstruction, alteration, repair, conversion, maintenance, or use, to restrain, correct, or abate such violation, to prevent the occupancy of said building, structure, or land, or to prevent any illegal act, conduct, business, or use in or about such premises.

 

 

 

Sec. 9. Conflict with other Laws

 

Wherever the regulations made under authority of this act require a greater width or size of yards, courts, or other open spaces, or require a lower height of building or less number of stories, or require a greater percentage of lot to be left unoccupied, or impose other higher standards than are required in any other statute or local ordinance or regulation, the provisions of the regulations made under authority of this act shall govern. Wherever the provisions of any other statute or local ordinance or regulation require a greater width or size of yards, courts, or other open spaces, or require a lower height of building or a less number of stories, or require a greater percentage of lot to be left unoccupied, or impose other higher standards than are required by the regulations made under authority of this act, the provisions of such statute or local ordinance or regulation shall govern.

 

 

 

Villiage of Euclid, Ohio, et al. v. Ambler Realty Co.,

272 U.S. 365 (1926).

 

 

 

Mr. James Metzenbaum, of Cleveland, Ohio, for appellants.

 

Messrs. Newton D. Baker and Robert M. Morgan, both of Cleveland, Ohio, for appellee.

 

 

 

Mr. Justice Sutherland delivered the opinion of the Court.

 

The village of Euclid is an Ohio municipal corporation. It adjoins and practically is a suburb of the city of Cleveland. Its estimated population is between 5,000 and 10,000, and its area from 12 to 14 square miles, the greater part of which is farm lands or unimproved acreage. It lies, roughly, in the form of a parallelogram measuring approximately 3 1/2 miles each way. East and west it is traversed by three principal highways: Euclid avenue, through the southerly border, St. Clair avenue, through the central portion, and Lake Shore boulevard, through the northerly border, in close proximity to the shore of Lake Erie. The Nickel Plate Railroad lies from 1,500 to 1,800 feet north of Euclid avenue, and the Lake Shore Railroad 1,600 feet farther to the north. The three highways and the two railroads are substantially parallel.

 

Appellee is the owner of a tract of land containing 68 acres, situated in the westerly end of the village, abutting on Euclid avenue to the south and the Nickel Plate Railroad to the north. Adjoining this tract, both on the east and on the west, there have been laid out restricted residential plats upon which residences have been erected.

 

On November 13, 1922, an ordinance was adopted by the village council, establishing a comprehensive zoning plan for regulating and restricting the location of trades, industries, apartment houses, two-family houses, single family houses, etc., the lot area to be built upon, the size and height of buildings, etc.

 

The entire area of the village is divided by the ordinance into six classes of use districts, denominated U-1 to U-6, inclusive; three classes of height districts, denominated H-1 to H-3, inclusive; and four classes of area districts, denominated A-1 to A-4, inclusive. The use districts are classified in respect of the buildings which may be erected within their respective limits, as follows: U-1 is restricted to single family dwellings, public parks, water towers and reservoirs, suburban and interurban electric railway passenger stations and rights of way, and farming, non-commercial greenhouse nurseries, and truck gardening; U-2 is extended to include two-family dwellings; U-3 is further extended to include apartment houses, hotels, churches, schools, public libraries, museums, private clubs, community center buildings, hospitals, sanitariums, public playgrounds, and recreation buildings, and a city hall and courthouse; U-4 is further extended to include banks, offices, studios, … [etc.] U-6 is further extended to include plants for sewage disposal and for producing gas, garbage and refuse incineration, scrap iron, junk, scrap paper, and rag storage, aviation fields, cemeteries, crematories, penal and correctional institutions, insane and feeble-minded institutions, storage of oil and gasoline (not to exceed 25,000 gallons), and manufacturing and industrial operations of any kind other than, and any public utility not included in, a class U-1, U-2, U-3, U-4, or U-5 use. There is a seventh class of uses which is prohibited altogether.

 

Class U-1 is the only district in which buildings are restricted to those enumerated. In the other classes the uses are cumulative-that is to say, uses in class U-2 include those enumerated in the preceding class U-1; class U-3 includes uses enumerated in the preceding classes, U-2, and U-1; and so on. In addition to the enumerated uses, the ordinance provides for accessory uses; that is, for uses customarily incident to the principal use, such as private garages. Many regulations are provided in respect of such accessory uses.

 

The height districts are classified as follows: In class H-1, buildings are limited to a height of 2 1/2 stories, or 35 feet… . To all of these, certain exceptions are made, as in the case of church spires, water tanks, etc.

 

The classification of area districts is: In A-1 districts, dwellings or apartment houses to accommodate more than one family must have at least 5,000 square feet for interior lots and at least 4,000 square feet for corner lots; … . The ordinance contains, in great variety and detail, provisions in respect of width of lots, front, side, and rear yards, and other matters, including restrictions and regulations as to the use of billboards, signboards, and advertising signs.

 

A single family dwelling consists of a basement and not less than three rooms and a bathroom. A two-family dwelling consists of a basement and not less than four living rooms and a bathroom for each family, and is further described as a detached dwelling for the occupation of two families, one having its principal living rooms on the first floor and the other on the second floor.

 

Appellee’s tract of land comes under U-2, U-3 and U-6. The first strip of 620 feet immediately north of Euclid avenue falls in class U-2, the next 130 feet to the north, in U-3, and the remainder in U-6. The uses of the first 620 feet, therefore, do not include apartment houses, hotels, churches, schools, or other public and semipublic buildings, or other uses enumerated in respect of U-3 to U-6, inclusive. The uses of the next 130 feet include all of these, but exclude industries, theaters, banks, shops, and the various other uses set forth in respect of U-4 to U-6, inclusive.1

 

Annexed to the ordinance, and made a part of it, is a zone map, showing the location and limits of the various use, height, and area districts, from which it appears that the three classes overlap one another; that is to say, for example, both U-5 and U-6 use districts are in A-4 area district, but the former is in H-2 and the latter in H-3 height districts. The plan is a complicated one, and can be better understood by an inspection of the map, though it does not seem necessary to reproduce it for present purposes.

 

The lands lying between the two railroads for the entire length of the village area and extending some distance on either side to the north and south, having an average width of about 1,600 feet, are left open, with slight exceptions, for industrial and all other uses. This includes the larger part of appellee’s tract. Approximately one-sixth of the area of the entire village is included in U-5 and U-6 use districts. That part of the village lying south of Euclid avenue is principally in U-1 districts. The lands lying north of Euclid avenue and bordering on the long strip just described are included in U-1, U-2, U-3, and U-4 districts, principally in U-2.

 

The enforcement of the ordinance is intrusted to the inspector of buildings, under rules and regulations of the board of zoning appeals. Meetings of the board are public, and minutes of its proceedings are kept. It is authorized to adopt rules and regulations to carry into effect provisions of the ordinance. Decisions of the inspector of buildings may be appealed to the board by any person claiming to be adversely affected by any such decision. The board is given power in specific cases of practical difficulty or unnecessary hardship to interpret the ordinance in harmony with its general purpose and intent, so that the public health, safety and general welfare may be secure and substantial justice done. Penalties are prescribed for violations, and it is provided that the various provisions are to be regarded as independent and the holding of any provision to be unconstitutional, void or ineffective shall not affect any of the others.

 

The ordinance is assailed on the grounds that it is in derogation of section 1 of the Fourteenth Amendment to the federal Constitution in that it deprives appellee of liberty and property without due process of law and denies it the equal protection of the law, and that it offends against certain provisions of the Constitution of the state of Ohio. The prayer of the bill is for an injunction restraining the enforcement of the ordinance and all attempts to impose or maintain as to appellee’s property any of the restrictions, limitations or conditions. The court below held the ordinance to be unconstitutional and void, and enjoined its enforcement, 297 F. 307.

 

Before proceeding to a consideration of the case, it is necessary to determine the scope of the inquiry. The bill alleges that the tract of land in question is vacant and has been held for years for the purpose of selling and developing it for industrial uses, for which it is especially adapted, being immediately in the path or progressive industrial development; that for such uses it has a market value of about $10,000 per acre, but if the use be limited to residential purposes the market value is not in excess of $2,500 per acre; that the first 200 feet of the parcel back from Euclid avenue, if unrestricted in respect of use, has a value of $150 per front foot, but if limited to residential uses, and ordinary mercantile business be excluded therefrom, its value is not in excess of $50 per front foot.

 

It is specifically averred that the ordinance attempts to restrict and control the lawful uses of appellee’s land, so as to confiscate and destroy a great part of its value; that it is being enforced in accordance with its terms; that prospective buyers of land for industrial, commercial, and residential uses in the metropolitan district of Cleveland are deterred from buying any part of this land because of the existence of the ordinance and the necessity thereby entailed of conducting burdensome and expensive litigation in order to vindicate the right to use the land for lawful and legitimate purposes; that the ordinance constitutes a cloud upon the land, reduces and destroys its value, and has the effect of diverting the normal industrial, commercial, and residential development thereof to other and less favorable locations.

 

The record goes no farther than to show, as the lower court found, that the normal and reasonably to be expected use and development of that part of appellee’s land adjoining Euclid avenue is for general trade and commercial purposes, particularly retail stores and like establishments, and that the normal and reasonably to be expected use and development of the residue of the land is for industrial and trade purposes. Whatever injury is inflicted by the mere existence and threatened enforcement of the ordinance is due to restrictions in respect of these and similar uses, to which perhaps should be added-if not included in the foregoing-restrictions in respect of apartment houses. Specifically there is nothing in the record to suggest that any damage results from the presence in the ordinance of those restrictions relating to churches, schools, libraries, and other public and semipublic buildings. It is neither alleged nor proved that there is or may be a demand for any part of appellee’s land for any of the last-named uses, and we cannot assume the existence of facts which would justify an injunction upon this record in respect to this class of restrictions. For present purposes the provisions of the ordinance in respect of these uses may therefore be put aside as unnecessary to be considered. It is also unnecessary to consider the effect of the restrictions in respect of U-1 districts, since none of appellee’s land falls within that class.

 

We proceed, then, to a consideration of those provisions of the ordinance to which the case as it is made relates, first disposing of a preliminary matter.

 

A motion was made in the court below to dismiss the bill on the ground that, because complainant (appellee) had made no effort to obtain a building permit or apply to the zoning board of appeals for relief, as it might have done under the terms of the ordinance, the suit was premature. The motion was properly overruled, the effect of the allegations of the bill is that the ordinance of its own force operates greatly to reduce the value of appellee’s lands and destroy their marketability for industrial, commercial and residential uses, and the attack is directed, not against any specific provision or provisions, but against the ordinance as an entirety. Assuming the premises, the existence and maintenance of the ordinance in effect constitutes a present invasion of appellee’s property rights and a threat to continue it… . .

 

It is not necessary to set forth the provisions of the Ohio Constitution which are thought to be infringed. The question is the same under both Constitutions, namely, as stated by appellee: Is the ordinance invalid, in that it violates the constitutional protection ‘to the right of property in the appellee by attempted regulations under the guise of the police power, which are unreasonable and confiscatory’?

 

Building zone laws are of modern origin. They began in this country about 25 years ago. Until recent years, urban life was comparatively simple; but, with the great increase and concentration of population, problems have developed, and constantly are developing, which require, and will continue to require, additional restrictions in respect of the use and occupation of private lands in urban communities. Regulations, the wisdom, necessity, and validity of which, as applied to existing conditions, are so apparent that they are now uniformly sustained, a century ago, or even half a century ago, probably would have been rejected as arbitrary and oppressive. Such regulations are sustained, under the complex conditions of our day, for reasons analogous to those which justify traffic regulations, which, before the advent of automobiles and rapid transit street railways, would have been condemned as fatally arbitrary and unreasonable. And in this there is no inconsistency, for, while the meaning of constitutional guaranties never varies, the scope of their application must expand or contract to meet the new and different conditions which are constantly coming within the field of their operation. In a changing world it is impossible that it should be otherwise. But although a degree of elasticity is thus imparted, not to the meaning, but to the application of constitutional principles, statutes and ordinances, which, after giving due weight to the new conditions, are found clearly not to conform to the Constitution, of course, must fall.

 

The ordinance now under review, and all similar laws and regulations, must find their justification in some aspect of the police power, asserted for the public welfare. The line which in this field separates the legitimate from the illegitimate assumption of power is not capable of precise delimitation. It varies with circumstances and conditions. A regulatory zoning ordinance, which would be clearly valid as applied to the great cities, might be clearly invalid as applied to rural communities. In solving doubts, the maxim ‘sic utere tuo ut alienum non laedas,’ which lies at the foundation of so much of the common low of nuisances, ordinarily will furnish a fairly helpful clew. And the law of nuisances, likewise, may be consulted, not for the purpose of controlling, but for the helpful aid of its analogies in the process of ascertaining the scope of, the power. Thus the question whether the power exists to forbid the erection of a building of a particular kind or for a particular use, like the question whether a particular thing is a nuisance, is to be determined, not by an abstract consideration of the building or of the thing considered apart, but by considering it in connection with the circumstances and the locality. Sturgis v. Bridgeman, L. R. 11 Ch. 852, 865. A nuisance may be merely a right thing in the wrong place, like a pig in the parlor instead of the barnyard. If the validity of the legislative classification for zoning purposes be fairly debatable, the legislative judgment must be allowed to control. Radice v. New York, 264 U. S. 292, 294.

 

There is no serious difference of opinion in respect of the validity of laws and regulations fixing the height of buildings within reasonable limits, the character of materials and methods of construction, and the adjoining area which must be left open, in order to minimize the danger of fire or collapse, the evils of overcrowding and the like, and excluding from residential sections offensive trades, industries and structures likely to create nuisances. [citations omitted]

 

Here, however, the exclusion is in general terms of all industrial establishments, and it may thereby happen that not only offensive or dangerous industries will be excluded, but those which are neither offensive nor dangerous will share the same fate. But this is no more than happens in respect of many practice-forbidding laws which this court has upheld, although drawn in general terms so as to include individual cases that may turn out to be innocuous in themselves. Hebe Co. v. Shaw, 248 U. S. 297, 303; Pierce Oil Corp. v. City of Hope, 248 U. S. 498, 500. The inclusion of a reasonable margin, to insure effective enforcement, will not put upon a law, otherwise valid, the stamp of invalidity. Such laws may also find their justification in the fact that, in some fields, the bad fades into the good by such insensible degrees that the two are not capable of being readily distinguished and separated in terms of legislation. In the light of these considerations, we are not prepared to say that the end in view was not sufficient to justify the general rule of the ordinance, although some industries of an innocent character might fall within the proscribed class. It cannot be said that the ordinance in this respect ‘passes the bounds of reason and assumes the character of a merely arbitrary fiat.’ Purity Extract Co. v. Lynch, 226 U. S. 192, 204. Moreover, the restrictive provisions of the ordinance in this particular may be sustained upon the principles applicable to the broader exclusion from residential districts of all business and trade structures, presently to be discussed.

 

It is said that the village of Euclid is a mere suburb of the city of Cleveland; that the industrial development of that city has now reached and in some degree extended into the village, and in the obvious course of things will soon absorb the entire area for industrial enterprises; that the effect of the ordinance is to divert this natural development elsewhere, with the consequent loss of increased values to the owners of the lands within the village borders. But the village, though physically a suburb of Cleveland, is politically a separate municipality, with powers of its own and authority to govern itself as it sees fit, within the limits of the organic law of its creation and the state and federal Constitutions. Its governing authorities, presumably representing a majority of its inhabitants and voicing their will, have determined, not that industrial development shall cease at its boundaries, but that the course of such development shall proceed within definitely fixed lines. If it be a proper exercise of the police power to relegate industrial establishments to localities separated from residential sections, it is not easy to find a sufficient reason for denying the power because the effect of its exercise is to divert an industrial flow from the course which it would follow, to the injury of the residential public, if left alone, to another course where such injury will be obviated. It is not meant by this, however, to exclude the possibility of cases where the general public interest would so far outweigh the interest of the municipality that the municipality would not be allowed to stand in the way.

 

We find no difficulty in sustaining restrictions of the kind thus far reviewed. The serious question in the case arises over the provisions of the ordinance excluding from residential districts apartment houses, business houses, retail stores and shops, and other like establishments. This question involves the validity of what is really the crux of the more recent zoning legislation, namely, the creation and maintenance of residential districts, from which business and trade of every sort, including hotels and apartment houses, are excluded. Upon that question this court has not thus far spoken. The decisions of the state courts are numerous and conflicting; but those which broadly sustain the power greatly outnumber those which deny it altogether or narrowly limit it, and it is very apparent that there is a constantly increasing tendency in the direction of the broader view… . .

 

As evidence of the decided trend toward the broader view, it is significant that in some instances the state courts in later decisions have reversed their former decisions holding the other way. For example, compare State ex rel. v. Houghton, supra, sustaining the power, with State ex rel. Lachtman v. Houghton, 134 Minn. 226, State ex rel. Roerig v. City of Minneapolis, 136 Minn. 479, and Vorlander v. Hokenson, 145 Minn. 484, denying it, all of which are disapproved in the Houghton Case (page 151 (204 N. W. 569)) last decided.

 

The decisions enumerated in the first group cited above agree that the exclusion of buildings devoted to business, trade, etc., from residential districts, bears a rational relation to the health and safety of the community. Some of the grounds for this conclusion are promotion of the health and security from injury of children and others by separating dwelling houses from territory devoted to trade and industry; suppression and prevention of disorder; facilitating the extinguishment of fires, and the enforcement of street traffic regulations and other general welfare ordinances; aiding the health and safety of the community, by excluding from residential areas the confusion and danger of fire, contagion, and disorder, which in greater or less degree attach to the location of stores, shops, and factories. Another ground is that the construction and repair of streets may be rendered easier and less expensive, by confining the greater part of the heavy traffic to the streets where business is carried on.

 

The Supreme Court of Illinois, in City of Aurora v. Burns, supra, pages 93-95 (149 N. E. 788), in sustaining a comprehensive building zone ordinance dividing the city into eight districts, including exclusive residential districts for one and two family dwellings, churches, educational institutions, and schools, said:

 

 

The constantly increasing density of our urban populations, the multiplying forms of industry and the growing complexity of our civilization make it necessary for the state, either directly or through some public agency by its sanction, to limit individual activities to a greater extent than formerly. With the growth and development of the state the police power necessarily develops, within reasonable bounds, to meet the changing conditions. …

 

 

 

… The harmless may sometimes be brought within the regulation or prohibition in order to abate or destroy the harmful. The segregation of industries, commercial pursuits, and dwellings to particular districts in a city, when exercised reasonably, may bear a rational relation to the health, morals, safety, and general welfare of the community. The establishment of such districts or zones may, among other things, prevent congestion of population, secure quiet residence districts, expedite local transportation, and facilitate the suppression of disorder, the extinguishment of fires, and the enforcement of traffic and sanitary regulations. The danger of fire and the of contagion are often lessened by the exclusion of stores and factories from areas devoted to residences, and, in consequence, the safety and health of the community may be promoted. …

 

 

 

… The exclusion of places of business from residential districts is not a declaration that such places are nuisances or that they are to be suppressed as such, but it is a part of the general plan by which the city’s territory is allotted to different uses, in order to prevent, or at least to reduce, the congestion, disorder, and dangers which often inhere in unregulated municipal development.

 

 

 

 

The Supreme Court of Louisiana, in State v. City of New Orleans, supra, pages 282, 283 (97 So. 444), said:

 

 

In the first place, the exclusion of business establishments from residence districts might enable the municipal government to give better police protection. Patrolmen’s beats are larger, and therefore fewer, in residence neighborhoods than in business neighborhoods. A place of business in a residence neighborhood furnishes an excuse for any criminal to go into the neighborhood, where, otherwise, a stranger would be under the ban of suspicion. Besides, open shops invite loiterers and idlers to congregate; and the places of such congregations need police protection. In the second place, the zoning of a city into residence districts and commercial districts is a matter of economy is street paving. Heavy trucks, hauling freight to and from places of business in residence districts, require the city to maintain the same costly pavement in such districts that is required for business districts; whereas, in the residence districts, where business establishments are excluded, a cheaper pavement serves the purpose. ….

 

 

 

Aside from considerations of economic administration, in the matter of police and fire protection, street paving, etc., any business establishment is likely to be a genuine nuisance in a neighborhood of residences. Places of business are noisy; they are apt to be disturbing at night; some of them are malodorous; some are unsightly; some are apt to breed rats, mice, roaches, flies, ants, etc. …

 

 

 

If the municipal council deemed any of the reasons which have been suggested, or any other substantial reason, a sufficient reason for adopting the ordinance in question, it is not the province of the courts to take issue with the council. We have nothing to do with the question of the wisdom or good policy of municipal ordinances. If they are not satisfying to a majority of the citizens, their recourse is to the ballot-not the courts.

 

 

 

 

The matter of zoning has received much attention at the hands of commissions and experts, and the results of their investigations have been set forth in comprehensive reports. These reports which bear every evidence of painstaking consideration, concur in the view that the segregation of residential, business and industrial buildings will make it easier to provide fire apparatus suitable for the character and intensity of the development in each section; that it will increase the safety and security of home life, greatly tend to prevent street accidents, especially to children, by reducing the traffic and resulting confusion in residential sections, decrease noise and other conditions which produce or intensify nervous disorders, preserve a more favorable environment in which to rear children, etc. With particular reference to apartment houses, it is pointed out that the development of detached house sections is greatly retarded by the coming of apartment houses, which has sometimes resulted in destroying the entire section for private house purposes; that in such sections very often the apartment house is a mere parasite, constructed in order to take advantage of the open spaces and attractive surroundings created by the residential character of the district. Moreover, the coming of one apartment house is followed by others, interfering by their height and bulk with the free circulation of air and monopolizing the rays of the sun which otherwise would fall upon the smaller homes, and bringing, as their necessary accompaniments, the disturbing noises incident to increased traffic and business, and the occupation, by means of moving and parked automobiles, of larger portions of the streets, thus detracting from their safety and depriving children of the privilege of quiet and open spaces for play, enjoyed by those in more favored localities-until, finally, the residential character of the neighborhood and its desirability as a place of detached residences are utterly destroyed. Under these circumstances, apartment houses, which in a different environment would be not only entirely unobjectionable but highly desirable, come very near to being nuisances.

 

If these reasons, thus summarized, do not demonstrate the wisdom or sound policy in all respects of those restrictions which we have indicated as pertinent to the inquiry, at least, the reasons are sufficiently cogent to preclude us from saying, as it must be said before the ordinance can be declared unconstitutional, that such provisions are clearly arbitrary and unreasonable, having no substantial relation to the public health, safety, morals, or general welfare. Cusack Co. v. City of Chicago, supra, pages 530-531 (37 S. Ct. 190); Jacobson v. Massachusetts, 197 U. S. 11, 30-31.

 

It is true that when, if ever, the provisions set forth in the ordinance in tedious and minute detail, come to be concretely applied to particular premises, including those of the appellee, or to particular conditions, or to be considered in connection with specific complaints, some of them, or even many of them, may be found to be clearly arbitrary and unreasonable. But where the equitable remedy of injunction is sought, as it is here, not upon the ground of a present infringement or denial of a specific right, or of a particular injury in process of actual execution, but upon the broad ground that the mere existence and threatened enforcement of the ordinance, by materially and adversely affecting values and curtailing the opportunities of the market, constitute a present and irreparable injury, the court will not scrutinize its provisions, sentence by sentence, to ascertain by a process of piecemeal dissection whether there may be, here and there, provisions of a minor character, or relating to matters of administration, or not shown to contribute to the injury complained of, which, if attacked separately, might not withstand the test of constitutionality. In respect of such provisions, of which specific complaint is not made, it cannot be said that the landowner has suffered or is threatened with an injury which entitles him to challenge their constitutionality… . .

 

… . Under these circumstances, therefore, it is enough for us to determine, as we do, that the ordinance in its general scope and dominant features, so far as its provisions are here involved, is a valid exercise of authority, leaving other provisions to be dealt with as cases arise directly involving them.

 

And this is in accordance with the traditional policy of this court. In the realm of constitutional law, especially, this court has perceived the embarrassment which is likely to result from an attempt to formulate rules or decide questions beyond the necessities of the immediate issue. It has preferred to follow the method of a gradual approach to the general by a systematically guarded application and extension of constitutional principles to particular cases as they arise, rather than by out of hand attempts to establish general rules to which future cases must be fitted. This process applies with peculiar force to the solution of questions arising under the due process clause of the Constitution as applied to the exercise of the flexible powers of police, with which we are here concerned.

 

Decree reversed.

 

 

 

Mr. Justice Van Devanter, Mr. Justice McReynolds, and Mr. Justice Butler dissent.

 


FOOTNOTES

    1. The court below seemed to think that the frontage of this property on Euclid avenue to a depth of 150 feet came under U-1 district and was available only for single family dwellings. An examination of the ordinance and subsequent amendments, and a comparison of their terms with the maps, shows very clearly, however, that this view was incorrect. Appellee’s brief correctly interpreted the ordinance: ‘The northerly 500 feet thereof immediately adjacent to the right of way of the New York, Chicago & St. Louis Railroad Company under the original ordinance was classed as U-6 territory and the rest thereof as U-2 territory. By amendments to the ordinance a strip 630(620) feet wide north of Euclid avenue is classed as U-2 territory, a strip 130 feet wide next north as U-3 territory and the rest of the parcel to the Nickel Plate right of way as U-6 territory.’

 

 

 

2.2. Variances

 

Harrison v. Mayor and Board of Alderman of the City of Batesville,

73 So.3d 1145 (Miss. 2011)

 

 

 

Paul B. Watkins, Jr., Pope S. Mallette, Oxford, attorneys for appellants.

 

Benjamin E. Griffith, Daniel J. Griffith, Cleveland, Robert T. Jolly, E. Patrick Lancaster, Olive Branch, Michael S. Carr, Lauren Webb Carr, attorneys for appellees.

 

 

 

 

Lamar, Justice, for the Court:

 

 

 

 

In this certiorari case, we consider whether the Mayor and the Batesville Board of Aldermen (collectively the “Board”) erred in granting a variance to allow mining in an area zoned single-family residential and community business. The Mississippi Court of Appeals found that it had and reversed and rendered. However, its opinion provided little discussion of the applicable zoning ordinance governing variances. That ordinance allows the Board to grant a variance due to “practical difficulties or unnecessary hardships.” While the Batesville Code does not define these terms, this language originated in the 1920s and is used in other jurisdictions. While the law and judicial interpretations from other jurisdictions do not bind us, they are helpful in cases where we have no precedent of our own. Therefore, we look to those jurisdictions to aid us in deciding whether the Board applied the correct legal standard and whether its decision to grant the variance is supported by substantial evidence.

 

 

 

 

Facts

 

 

 

 

Memphis Stone & Gravel Company submitted to the Board a variance request to mine sand and gravel from eighteen acres leased from various property owners. This tract of land is zoned single-family residential (R-1) and community business (C-2) and is contiguous with Memphis Stone’s existing plant operation located in the county. Under the Batesville Code, mining only can be a conditional (as opposed to permitted) use in areas zoned agricultural and industrial.

 

In support of its zoning application, Memphis Stone attached maps of the area, promotional materials for the company, and an operations narrative. The operations narrative provided general information on the project and mining process and also provided the following information:

 

 

Based on national and local trends it takes approximately 10 tons of aggregate each year for new construction and to maintain our existing infrastructure. The growth in Tate County [sic] demands a good source of local aggregate. Memphis Stone & Gravel Company believes this deposit will be an asset to the local economy and will likely be lost to future residential development if not managed as a resource for construction material.

 

 

The variance request was first approved [unanimously] by the City of Batesville Planning Commission… . . Next, the Board held a public hearing on the variance request [and approved the variance at the following meeting]. [A]t its next meeting, a Board member moved to rescind the variance grant, but the motion failed. The member then moved to amend the order granting the variance so that it would include various conditions. Before the Board finalized the conditions, it heard from Paul Watkins, the Harrisons’ attorney. Watkins stated that the Board’s decision to grant a variance would change the character of the land and constitute spot zoning, and that the record before the Board contained no reason for its approval. He asserted that Memphis Stone wanted the variance for financial gain and convenience, which are insufficient to show practical difficulty or unnecessary hardship. Watkins also placed in the record a copy of a letter that he previously had sent the Board. In his letter, Watkins argued the variance would have a negative effect on surrounding property, cause a nuisance, and fail to provide any additional employment or tax base for the City.

 

The Board also heard from the president of Memphis Stone, who addressed only the proposed conditions, one of which was reclamation of the land to its original state. The president stated that reclamation to the original state was “impossible” since his company would be “taking out 40 to 60 [feet] of material … there is no way… to meet the same topography that is there now. I’m going to have to create a lake out there.” Ultimately, the Board upheld the variance with the following conditions: (1) a two-and-one-half-year time limit with review every six months; (2) operations confined to weekdays from 7:00 a.m. to 5:00 p.m.; (3) the erection and construction of berms to screen the project from neighboring property and the road; (4) the watering of objectionable dust; and (5) the imposition of fines for any violations of the conditions.

 

The Harrisons appealed the variance to the circuit court[, which] affirmed the Board’s decision to grant the variance. It found the Batesville Code required proof of “practical difficulties or unnecessary hardship” and that Memphis Stone had provided “ample evidence” to justify the variance. It noted that Memphis Stone had presented “evidence of a public need for a good source of local aggregate and the project would be a good asset for the local community’s economy that will likely be lost to future residential development based on the location of the property.”

 

[T]he Court of Appeals reversed and rendered, finding the variance constituted a “classic case of spot zoning.” And “[n]otwithstanding that finding, [it went on to] determine whether Memphis Stone proved that there was a public need or a compelling reason for the variance.” It concluded that the record lacked substantial evidence to support a finding of public need or that the variance would be an asset to the local economy. It further found that the record “lacks evidence of any ‘practical difficulty or unnecessary hardship’” without any analysis or explanation of those terms. We granted certiorari to clarify the standards that should apply when a zoning ordinance uses the language “practical difficulties or unnecessary hardships” for granting a variance.

 

 

 

 

Discussion

 

 

 

 

A variance generally is defined as the “right to use or to build on land in a way prohibited by strict application of a zoning ordinance.” The grant or denial of a variance is adjudicatory, rather than legislative… . . This Court will reverse only if the decision “1) is not supported by substantial evidence, 2) is arbitrary or capricious, 3) is beyond the scope or power granted to the agency, or 4) violates one’s constitutional rights.” We review questions of law under a de novo standard. [The court then decided that even an improper grant of a variance does not constitute illegal “spot zoning,” a concept we will study later.]

 

The Legislature has provided “the governing authority of any municipality” with the power to enact zoning regulations “for the purpose of promoting health, safety, morals, or the general welfare of the community[.]”1 As previously noted, the Board had zoned the land at issue as single-family residential and community commercial. But Memphis Stone requested a variance to change the use of this zoned area. A “use” variance is one of two types of variances:

 

 

With a ‘use’ variance, the owner is allowed to engage in a use of the land prohibited by the zoning ordinance. With a ‘nonuse,’ or ‘area’ variance, the owner must comply with the zoning ordinance’s limitations on use of the land but is allowed to build or maintain physical improvements that deviate from the zoning ordinance’s nonuse limitations.

 

 

And this Court noted the distinction in Drews:

 

 

Variances were conceived initially as a means for granting relief from height, bulk, and location restrictions in the ordinances which rendered use of the property impossible or impractical. No conceptual problems arise when the variance is granted to authorize minor departures from the terms of the ordinance; e.g. to permit a landowner to place the structure on his lot nearer the lot line than is permitted by the set-back or side-yard requirements. Such relief does not authorize a use inconsistent with the ordinance and, consequently, does not constitute rezoning under the guise of a variance….

 

On the other hand, serious questions arise when a variance is granted to permit a use otherwise prohibited by an ordinance; e.g., a service station or a quick-stop grocery in a residential district. The most obvious danger is that the variance will be utilized to by-pass procedural safeguards required for valid amendment.

 

 

In reviewing the grant of a variance, we start with the governing zoning ordinances. “A city must follow its ordinance when granting [a] variance to a zoning regulation.” The Batesville Code defines “variance” as “[a] grant of permission… that authorizes the recipient to do that which, according to the strict letter of this appendix, he could not otherwise legally do.” The Batesville Code also provides that the Board may “vary or modify the application of any of the regulations or provisions of the ordinance where there are practical difficulties or unnecessary hardships in the way of carrying out the strict letter of this ordinance, so that the spirit of this ordinance shall be observed, public welfare and safety secured and substantial justice done.”

 

The Batesville Code provides no definition or guidelines for determining the meaning of “practical difficulties or unnecessary hardships.” And neither the record nor the Board’s decision provides any insight into what criteria it used to determine the meaning of these terms. The Board simply stated that the “variance is necessary in order to avoid practical difficulties or unnecessary hardship on the use and development of said property be [sic] and it is hereby approved and said variance is hereby granted in said application.”

 

While arguably the imposed conditions show the Board’s effort to comply with the “spirit of the ordinance” so that “public welfare and safety secured and substantial justice [be] done[,]” they fail to shed any light upon what “practical difficulties or unnecessary hardships” existed, authorizing the Board to grant the variance. The Board merely provided a conclusion with no findings of fact. As noted by another jurisdiction when reviewing a variance grant, “[f]indings of fact which show the actual grounds of a decision are necessary for an intelligent review of a quasi-judicial or administrative determination.” Similarly, in Barnes v. Board of Supervisors, this Court ruled that Boards should make findings of fact when granting or denying conditional use permits, which are also quasi-judicial decisions.

 

Although in Barnes we upheld the Board’s decision despite its failure to make specific findings of fact, we did so because the record clearly supported the Board’s decision. Here, the only “evidence” found in the record before this Court was contained in Memphis Stone’s operations statement: (1) that ten tons of aggregate is needed each year for new construction and to maintain existing infrastructure; (2) that it believes the deposit will be an asset to the local economy; and (3) that the deposit would otherwise be lost to future development.

 

The Harrisons argue that this does not constitute evidence of hardship, and that nothing in the record shows that the property is unsuitable for the purpose for which it is zoned–residential and light commercial use. They further argue that Memphis Stone failed to show that it would suffer unusual hardship or difficulty greater than any other resident in the city’s R-1 and C-2 districts. Conversely, the Board argues that it found the variance would provide a good source of local aggregate and a benefit to the local economy. It also argues that its decision was based on its common knowledge of the land and familiarity with the ordinance.

 

The language “practical difficulties” and “unnecessary hardships,” as well as other aspects of the Batesville zoning ordinance, originated in a 1920 amendment to the General City Law of New York and the Standard Zoning Act prepared by the Department of Commerce in the 1920s. The 1920 amendment provided that:

 

 

Where there are practical difficulties in the way of carrying out the strict letter of such ordinance, the board of zoning appeals shall have the power to vary or modify the application of any of the regulations or provisions of such ordinance relating to the use, construction or alteration of buildings or structures, or the use of land, so that the spirit of the ordinance shall be observed, public safety and welfare secured and substantial justice done.

 

 

And the Standard Zoning Act provided that:

 

 

To authorize upon appeal in specific cases such variance from the terms of the ordinance as will not be contrary to the public interest, where, owing to special conditions, a literal enforcement of the provisions of the ordinance will result in unnecessary hardship, and so that the spirit of the ordinance shall be observed and substantial justice done.

 

 

While some courts view the terms “practical difficulty” and “unnecessary hardship” as interchangeable, other jurisdictions follow New York’s approach and hold that “practical difficulty” applies to a nonuse or area variance while “unnecessary hardship” applies to a use variance. Jurisdictions that distinguish the two terms among nonuse and use variances do so because “an area variance is a relaxation of one or more incidental limitations to a permitted use and does not alter the character of a district as much as a use not permitted by the ordinance.” Even those jurisdictions that construe “practical difficulties or unnecessary hardships” together apply a more rigorous standard for proving a use variance. Likewise, in Drews, we noted the “serious questions” that arise when a Board grants a use variance rather than a nonuse or area variance and insinuated that a higher burden (e.g., unnecessary hardship) applies to a use variance. Therefore, we follow the New York approach and hold that the phrases “practical difficulty” and “unnecessary hardship” apply to nonuse and use variances respectively, as the applicable zoning ordinance closely follows the 1920 New York amendment. We adopt the following definition for “unnecessary hardship”:

 

 

[T]he record must show that (1) the land in question cannot yield a reasonable return2 if used only for a purpose allowed in that zone; (2) that the plight of the owner is due to unique3 circumstances [of the land for which the variance is sought] and not to the general conditions in the neighborhood which may reflect the unreasonableness of the zoning ordinance itself; and (3) that the use to be authorized4 by the variance will not alter the essential character of the locality.

 

 

Whether the hardship is self-created is also relevant to the determination of granting or denying a use variance. Similarly, while not determinative of hardship, the Board should consider the fact Memphis Stone entered into these leases with actual or constructive knowledge that the land was zoned R-1 and C-2. The Board also must ensure that the variance complies with “the spirit of [the] ordinance” and that “public welfare and safety [be] secured and substantial justice done.” This requirement “limits the authority of the board only with respect to the scope and character of the relief to be granted by way of the variance.”5

 

In reviewing the record in this case, we find no evidence of “unnecessary hardship” as we now define that phrase. We further find the definition for unnecessary hardship does not take into account “public need” as Memphis Stone argues (and the trial court found), but instead focuses on any alleged “public detriment.”6 Because this is a case of first impression, we vacate the decision of the Court of Appeals and reverse the trial court, remanding the case to the Board so the parties have the opportunity to present it with evidence in compliance with this opinion. Any evidence presented should be made part of the record, and the Board should provide specific findings of fact and conclusions of law to support any decision in this matter.

 


FOOTNOTES

    1. Miss.Code Ann. § 17-1-3(1) (Rev.2003). Section 17-1-3(1) provides:

       

      for the purpose of promoting health, safety, morals, or the general welfare of the community, the governing authority of any municipality… [is] empowered to regulate the height, number of stories and size of building and other structures, the percentage of lot that may be occupied, the size of the yards, courts and other open spaces, the density of population, and the location and use of buildings, structures and land for trade, industry, residence or other purposes….

       

      Id.

 

    1. As noted by the Missouri Supreme Court in adopting the New York definition, the landowner must establish “reasonable return” by submitting evidence that “he or she will be deprived of all beneficial use of the property under any of the permitted uses” and this requires “actual proof, often in the form of dollars and cents evidence.” Matthew, 707 S.W.2d at 417.

 

    1. “[U]niqueness does not require that only the parcel of land in question and none other be affected by the condition that creates the hardship. What is required … is that the hardship condition be sufficiently rare that if all similarly situated parcels in the zoning district were granted variances the district would remain materially unchanged.” Gail Gudder, Rathkopf’s the Law of Zoning and Planning, § 58:11 (Thomson/West Aug. 2006) (citing Matter of Douglaston Civic Ass’n v. Klein, 51 N.Y.2d 963, 435 N.Y.S.2d 705, 416 N.E.2d 1040 (N.Y.1980)).

 

    1. A board should grant a use variance only if it is the “minimum that will afford relief.” Id. at § 58.12.

 

    1. Gudder, Rathkopf’s the Law of Zoning and Planning at § 58:9. In other words, the Board does not have to grant the variance as requested; it may impose conditions or otherwise modify the variance so that it is the “minimum that will afford relief.” See fn.44 supra.

 

    1. See generally id. at § 58:16 (public detriment is a factor in determining hardship, while public detriment and public benefit are considered under practical difficulties).

 

 

 

Janssen v. Holland Charter Twp. Zoning Board of Appeals,

651 N.W.2d 464 (Mich. Ct. App. 2002)

 

 

 

Warner Norcross & Judd, L.L.P. by John H. Logie, Mark K. Harder, and Christopher R. Uzpen, Holland, for John W. Janssen and others.

 

Scholten and Fant, P.C. by Ronald A. Bultje and Linda S. Howell, Grand Haven, for Holland Charter Township Zoning Board of Appeals.

 

Cunnigham Dalman, P.C. by Andrew J. Mulder and Susan E. Vroegop, Holland, for Barker Brokerage & Development, Inc. and others.

 

 

 

Per Curiam.

 

 

 

John W. Janssen and others appeal by leave granted from the March 22, 2000, order of the circuit court affirming the decision of defendant Holland Charter Township Zoning Board of Appeals (ZBA) granting a use variance permitting the construction of a 250-unit residential development in an area zoned agricultural. We affirm.

 

In September 1996, appellees Henry A. and Doris J. Pyle and Baker Brokerage & Development, Inc., filed an application with the Holland Charter Township Board requesting that certain parcels of property consisting of approximately 115 acres be rezoned from the A-Agricultural Zoning District to the R-1 Single Family Residential Zoning District. The township’s planning commission voted to recommend that the board deny the rezoning application. Subsequently, these appellees amended their application by removing one fifteen-acre parcel, which left two contiguous parcels consisting of approximately one hundred acres. Again, the planning commission voted to deny the amended petition. Thereafter, the Pyles and Baker filed a use variance request with the ZBA. They sought to have the density requirements changed so as to allow them to build a 400-unit residential development on the property. After appellee Vistiana Properties, LLC, purchased the property, it and the Pyles filed an amended use variance petition, in which they reduced the number of residential units from 400 to 250. Eventually, after holding public hearings, the ZBA granted the use variance petition. Appellants then contested the ZBA’s decision in the circuit court, and the court upheld the ZBA’s decision.

 

Appellants first argue that the circuit court erred in concluding that defendant ZBA’s decision to grant the use variance did not constitute impermissible rezoning because a one hundred-acre parcel is too large a parcel of land to be the subject of a use variance. Upon review de novo, we disagree.

 

The rules that determine when a zoning board of appeals may grant a use variance make no mention of the size of a parcel. A township zoning board of appeals is a municipal administrative body whose duties include, among other functions, the granting of variances. M.C.L. § 125.293 provides, in pertinent part, as follows:

 

 

Where there are practical difficulties or unnecessary hardship in the way of carrying out the strict letter of the zoning ordinance, the board of appeals in passing upon appeals may vary or modify any of its rules or provisions so that the spirit of the ordinance is observed, public safety secured, and substantial justice done.

 

 

Likewise, Holland Charter Township’s zoning ordinance provides as follows:

 

 

Sec. 20.2 Jurisdiction and powers.

 

 

 

 

The board of appeals shall have all powers and jurisdiction granted by the zoning act, all powers and jurisdiction prescribed in other articles of the ordinance and the following specific powers and jurisdiction….

 

 

 

 

 

 

C. The jurisdiction and power to authorize, upon appeal, a variance or modification of this ordinance where there are practical difficulties or unnecessary hardship in the way of carrying out the strict letter of this ordinance so that the spirit of this ordinance shall be observed, public safety secured and substantial justice done.

 

 

 

 

 

 

The plain and ordinary language of both the statute and the ordinance do not set forth any limitations based on the size of the property owner’s parcel of land. To conclude, as appellants urge, that the granting of a use variance to a large parcel of land constitutes de facto rezoning, we would have to, in effect, add an exclusion for such parcels to the above statute and ordinance. “This, however, is beyond our authority because courts may not legislate.” Brandon Charter Twp. v. Tippett, 241 Mich.App. 417, 423, 616 N.W.2d 243 (2000).

 

Appellants next contend that the ZBA’s decision to grant the use variance was not supported by competent, material, and substantial evidence on the record. We disagree. The decision of a zoning board of appeals should be affirmed unless it is contrary to law, based on improper procedure, not supported by competent, material, and substantial evidence on the record, or an abuse of discretion. Reenders v. Parker, 217 Mich.App. 373, 378, 551 N.W.2d 474 (1996).

 

A township zoning board of appeals has the authority to vary or modify any zoning ordinance to prevent unnecessary hardship if the spirit of the ordinance is observed, the public safety is secured, and substantial justice is done. To conclude that a property owner has established unnecessary hardship, a zoning board of appeals must find on the basis of substantial evidence that (1) the property cannot reasonably be used in a manner consistent with existing zoning, (2) the landowner’s plight is due to unique circumstances and not to general conditions in the neighborhood that may reflect the unreasonableness of the zoning, (3) a use authorized by the variance will not alter the essential character of a locality, and (4) the hardship is not the result of the applicant’s own actions. Johnson v. Robinson Twp., 420 Mich. 115, 125-126, 359 N.W.2d 526 (1984); Puritan-Greenfield Improvement Ass’n v. Leo, 7 Mich.App. 659, 672-673, 677, 153 N.W.2d 162 (1967). We conclude that the Pyle appellees presented sufficient evidence to establish each of these criteria.

 

“Whether property used in trade or business or held for the production of income can reasonably be used for a purpose consistent with existing zoning will, no doubt, ordinarily turn on whether a reasonable return can be derived from the property as then zoned.” Puritan-Greenfield at 673-674, 153 N.W.2d 162.1 Contrary to appellants’ argument on appeal, the ZBA’s conclusion that appellee Vistiana could not receive a reasonable economic return was not based on some “hypothetical value.” Rather, the ZBA’s finding was based on an analysis of the rental income received and the taxes assessed on the property as zoned. In concluding that the applicants established by substantial evidence that they could receive no reasonable economic return for the property as zoned, the ZBA noted that the annual rental income for the farm was $6,000, and the annual rental income for the two residences on the property yielded $12,900. The ZBA further pointed out that the 1998 taxes on the property amounted to $7,867.42. Thus, the ZBA concluded that the applicants could not realize a reasonable economic return, given the rental income from leasing the farm and the two houses. We hold that the ZBA’s conclusion that the property cannot reasonably be used in a manner consistent with existing zoning was supported by competent, material, and substantial evidence on the record. Reenders, supra at 378, 551 N.W.2d 474.

 

We also believe this evidence supports the finding that the hardship is not the result of the applicants’ own actions. The increasing taxable value of the property and the comparatively low rental income derived are not “self-created” burdens.

 

In addition, we hold that there was competent, material, and substantial evidence to support the ZBA’s conclusion that the use authorized by the variance would not alter the essential character of the locality. In considering the essential character of this locality, one cannot, and should not, just look at the immediate neighboring properties. The character of the locality is defined in broader strokes than such a myopic viewpoint would provide.

 

The underlying situation presented in the case at bar involves the changing circumstances and character of this community. With the growing consolidation of farming operations throughout the country and the fewer children willing to follow their parents into farming, the family farm, once a mainstay of both the economic and cultural landscape in rural America, has begun to disappear. See Zeigler, Who will teach our farmers: Learning the value of mentor programs from state and private programs, 5 Drake J. Agric. L. 279, 280 (2000). Appellants and appellees have found themselves caught in the tide of this rural transformation. In other words, the essential character of this community is not immutable, and is, indeed, in a state of transition.

 

The use to be made of the subject property not only recognizes this unfolding change in circumstances, but it also takes measured steps to balance the pressures inherent in this course of development. In granting the variance, the ZBA explained that the proposed cluster housing development will provide “a large area of open space around the perimeter of the property, thereby maintaining a buffer area between the proposed residential uses and the surrounding agricultural property,” and further concluded that this factor, as well as the other conditions imposed, will ensure that the variance will not alter the locality’s essential character. Included in the list of conditions is a disclaimer to be included in all deeds conveying an interest in the subject property that informs purchasers of the neighboring farming activity and that further provides that, under certain circumstances, the Michigan Right to Farm Act2 protects a farm or farm operation from being considered a public or private nuisance.

 

This leaves the question whether Vistiana’s plight was unique to the property. The requirement that the landowner’s plight be due to unique circumstances does not mean that the circumstances must exclusively affect only the single landowner.3 Rather, “[t]he courts have repeatedly emphasized that the hardship to be unique is ‘not shared by all others,’” Beatrice Block Club Ass’n v. Facen, 40 Mich.App. 372, 381, 198 N.W.2d 828 (1972), quoting Tireman-Joy-Chicago Improvement Ass’n v. Chernick, 361 Mich. 211, 216, 105 N.W.2d 57 (1960) (emphasis supplied by Facen Court).

 

While the subject property has no defining physical characteristics such as size or topographical peculiarities that make it unique, we do not believe this necessarily ends the inquiry. See, e.g., Monaco v. Dist. of Columbia Bd. of Zoning Adjustment, 407 A.2d 1091, 1097 (D.C., 1979) (examining the actions of the zoning authorities and the zoning history of the case). The uniqueness inquiry should not in all cases be limited to an examination of whether there is a uniqueness that inheres in the land itself. See Capitol Hill Restoration Society, Inc. v. Dist. of Columbia Bd. of Zoning Adjustment, 534 A.2d 939, 942 (D.C., 1987).

 

Appellees’ claim of “uniqueness” invites consideration of their plight in light of the situation of other landowners in the surrounding area. In making such a comparison, it quickly becomes evident that it is not the unreasonableness of the zoning ordinance that has led to appellees’ plight. As the circuit court recognized, when the use variance was granted, the township’s then current master plan envisioned that, although zoned agricultural, the subject land should eventually be used for residential purposes. Indeed, before appellees’ request, the township had approved approximately fifty other instances of residential use of land in areas zoned agricultural. Thus, change in the character of the locality has not only been countenanced by the master plan, but the zoning history of the case reveals a steady, incremental movement in that direction. We believe that this shows that at the time the variance was sought, the hardship alleged was not due to the general conditions then existing in the area. In other words, the remedy does not necessarily lie in amendment of the zoning ordinance itself. Given the master plan’s recognition of potential future growth specifically on lands zoned agricultural, we believe that restrained and managed development, in part through the issuance of use variances as the changing conditions create unique hardships for those remaining agricultural lands, is a reasoned approach. It satisfies the goals of upholding the spirit of the ordinance, protects public safety, and assures that substantial justice is done. Dowerk, supra.Further, when a “landowner has made the requisite showing of financial hardship and compatibility of the proposed use with the character of the neighborhood, the variance should be granted since to deny it [solely] on the ground that ‘unique circumstances’ have not been shown invites a potentially successful assault on the zoning ordinance as being confiscatory.” In re Family of Woodstock, Inc., 225 A.D.2d 854, 856, 638 N.Y.S.2d 825 (1996).

 

Affirmed.

 


FOOTNOTES

    1. The Puritan-Greenfield Court, supra at 674, 153 N.W.2d 162, cautioned that there are circumstances where a “reasonable return” analysis would be improper when deciding the “reasonable use” question. The example given was where the property in issue was a single-family residence. While we agree that the reasonable return analysis should not be relied on in certain cases, its application here is proper. Id. See also Crawford, Michigan Zoning and Planning (3d ed.), § 6.03, pp. 164-165.

 

    1. M.C.L. § 286.471 et seq.

 

    1. Crawford, supra at § 6.03, p. 165.

 

 

 

Simplex Technologies v. Town of Newington,

145 N.H. 727 (2001)

 

 

 

Gottesman and Hollis, P.A., of Nashua (Anna B. Hantz on the brief), and Stebbins, Lazos & Van Der Beken, of Manchester (Henry B. Stebbins on the brief and orally), for the plaintiff.

 

Peter J. Loughlin of Portsmouth, by brief and orally, for defendant Town of Newington.

 

Boynton, Waldron, Doleac, Woodman & Scott, PA., of Portsmouth, for defendant The Equitable Life Assurance Society of the United States & The Fox Run Mall Joint Venture, filed no brief.

 

H. Bernard Waugh, Jr., of Concord, by brief for the New Hampshire Municipal Association, as amicus curiae.

 

 

 

Nadeua, J.

 

 

 

The plaintiff, Simplex Technologies, Inc. (Simplex), appeals from an order of the Superior Court (Galway, J.), affirming a decision of the Town of Newington Zoning Board of Adjustment (ZBA) denying Simplex’s request for a variance to develop a portion of its property that fronts Woodbury Avenue. The defendants are the Town of Newington and The Equitable Life Assurance Society of the United States and the Fox Run Mall Joint Venture. We reverse and remand.

 

Simplex owns ninety-two acres in Newington between the Piscataqua River and Woodbury Avenue. For more than thirty years Simplex has operated a manufacturing facility on this land. Woodbury Avenue forms a boundary line between industrial and commercial zoning districts in Newington. All the property west of Woodbury Avenue, including two shopping malls, was once in the industrial zone but now lies within the commercial zone, across the street from the Simplex property.

 

There are three other commercial businesses also located on the east side of Woodbury Avenue, within the commercial zone. North of the Simplex property along Woodbury Avenue is a mini-mall located on a ten-acre lot that was re-zoned for commercial use in 1983. A car dealership and an electronics retail store are located south of the Simplex property near the intersection of Woodbury Avenue and Gosling Road on thirteen acres of commercial property. The Bank of New Hampshire and the Great Bay School operate within the industrial zone, but not with industrial purposes; the bank operates as a nonpermitted use and the school operates as a nonconforming use.

 

Seeking to develop 6.2 acres of its property abutting Woodbury Avenue with a Barnes & Noble bookstore and a family restaurant, Simplex requested use and area variances for this property. The ZBA, determining that Simplex met none of the five criteria for a variance, denied its requests. Simplex appealed to the superior court, arguing that: (1) the ZBA’s decision was unreasonable; (2) the Town was estopped from enforcing the zoning ordinance against Simplex because it was acting in a discriminatory fashion; and (3) the zoning ordinance was unconstitutional on its face and as applied to Simplex. The superior court ruled that the ZBA’s determination was not unreasonable or unlawful because Simplex did not meet the hardship criteria for a variance and rejected Simplex’s municipal estoppel argument. The superior court also rejected Simplex’s constitutional arguments. This appeal followed.

 

… .

 

We begin by looking at the present state of land use variance law. To determine the validity of zoning laws, the “police power and the right to private property must be considered together as interdependent, the one qualifying and limiting the other.” Metzger v. Town of Brentwood, 117 N.H. 497, 502, 374 A.2d 954, 957 (1977) (quotation omitted). The purpose of a variance is to allow for “a waiver of the strict letter of the zoning ordinance without sacrifice to its spirit and purpose.” Husnander v. Town of Barnstead, 139 N.H. 476, 478, 660 A.2d 477, 478 (1995). By allowing variances “litigation of constitutional questions may be avoided and a speedy and adequate remedy afforded in cases where special conditions” exist. Bouley v. Nashua, 106 N.H. 79, 84, 205 A.2d 38, 41 (1964) (quotations omitted).

 

According to RSA 674:33, I(b), a zoning board of adjustment may authorize a variance if the following conditions are met: (1) the variance will not be contrary to the public interest; (2) special conditions exist such that literal enforcement of the ordinance results in unnecessary hardship; (3) the variance is consistent with the spirit of the ordinance; and (4) substantial justice is done. See RSA 674:33 (1996 & Supp. 2000). In addition, the board may not grant a variance if it diminishes the value of surrounding properties. See Ryan v. City of Manchester Zoning Board, 123 N.H. 170, 173, 459 A.2d 244, 245 (1983). The ZBA determined that Simplex failed to meet any of these conditions. The superior court affirmed the ZBA’s decision, analyzing only the question of unnecessary hardship.

 

Our recent case law suggests that in seeking a variance, the hardship requirement is the most difficult to meet. To establish hardship, property owners must show that an ordinance unduly restricts the use of their land. See Governor’s Island Club v. Gilford, 124 N.H. 126, 130, 467 A.2d 246, 248 (1983). In Governor’s Island, we overturned the trial court’s order affirming the ZBA’s grant of a variance, stating: “For hardship to exist under our test, the deprivation resulting from application of the ordinance must be so great as to effectively prevent the owner from making any reasonable use of the land.” Id.

 

In overturning the grant of a variance that allowed a landowner to expand his pre-existing nonconforming marina with a boat storage building, we stated: “The uncontroverted fact that the Marina had been operating as a viable commercial entity for several years prior to the variance application is conclusive evidence that a hardship does not exist.” Grey Rocks Land Trust v. Town of Hebron, 136 N.H. 239, 243, 614 A.2d 1048, 1050 (1992). As in other cases, we emphasized that “[t]he uniqueness of the land, not the plight of the owner, determines whether a hardship exists.” Id. (quotation and citation omitted).

 

Dissenting in Grey Rocks, Justice Horton was critical of our restrictive definition of hardship. He discussed the similarity between our definition and a “substantial taking” approach. See id. at 247, 614 A.2d at 1052 (Horton, J., dissenting). Under this approach, variances are very difficult to obtain unless evidence establishes that the property owner cannot use his or her property in any way. See id. (Horton, J., dissenting). This approach “rejects any claim of right to use property as one sees fit, no matter how unobtrusive.” Id. (Horton, J., dissenting).

 

Though variances have been granted, their numbers have been few, diminished undoubtedly by our reiterated and restrictive definition of what constitutes an unnecessary hardship. See, e.g., Husnander, 139 N.H. at 478-79, 660 A.2d 477 at 478-79.

 

Our current restrictive approach is inconsistent with our earlier articulations of unnecessary hardship. In Fortuna v. Zoning Board of Adjustment of Manchester, a car dealership was granted a variance to expand its nonconforming use by adding a garage within an apartment zoning district. See Fortuna v. Zoning Board of Manchester, 95 N.H. 211, 212, 60 A.2d 133, 134 (1948). The record established that this addition would reduce traffic, but would not diminish the value of the surrounding properties. See id. at 212-13, 60 A.2d at 135. We found unnecessary hardship existed because the ordinance interfered with the dealership’s right to use its property as it saw fit and that its use did not injure the public or private rights of others. See id. at 213-14, 60 A.2d at 135.

 

Also, our restrictive approach is inconsistent with the notion that zoning ordinances must be consistent with the character of the neighborhoods they regulate. In Belanger v. City of Nashua, the zoning board of adjustment denied a land owner a variance to expand a nonconforming commercial use from one room of her house to the whole house. See Belanger v. City of Nashua, 121 N.H. 389, 430 A.2d 166 (1981). The surrounding area had changed substantially since it was zoned for single family residential use. See id. at 393, 430 A.2d at 169. Emphasizing that municipalities must coordinate their zoning ordinances to reflect the current character of their neighborhoods, we upheld the trial court’s order vacating the board’s decision. See id.

 

Finally, our restrictive approach is inconsistent with our constitutional analysis concerning zoning laws. To safeguard the constitutional rights of landowners, we insist that zoning ordinances “must be reasonable, not arbitrary, and must rest upon some ground of difference having a fair and substantial relation to the object of the regulation.” Town of Chesterfield v. Brooks, 126 N.H. 64, 69, 489 A.2d 600, 604 (1985) (quotation omitted).

 

Inevitably and necessarily there is a tension between zoning ordinances and property rights, as courts balance the right of citizens to the enjoyment of private property with the right of municipalities to restrict property use. In this balancing process, constitutional property rights must be respected and protected from unreasonable zoning restrictions. The New Hampshire Constitution guarantees to all persons the right to acquire, possess, and protect property. See N.H. CONST. pt. I, arts. 2, 12. These guarantees limit all grants of power to the State that deprive individuals of the reasonable use of their land.

 

We believe our definition of unnecessary hardship has become too restrictive in light of the constitutional protections by which it must be tempered. In consideration of these protections, therefore, we depart today from the restrictive approach that has defined unnecessary hardship and adopt an approach more considerate of the constitutional right to enjoy property. Henceforth, applicants for a variance may establish unnecessary hardship by proof that: (1) a zoning restriction as applied to their property interferes with their reasonable use of the property, considering the unique setting of the property in its environment; (2) no fair and substantial relationship exists between the general purposes of the zoning ordinance and the specific restriction on the property; and (3) the variance would not injure the public or private rights of others.

 

While the trial court properly applied settled law, because of our departure from the existing definition of hardship, we remand this case to the superior court to determine whether Simplex can establish unnecessary hardship under this new standard.

 

Simplex also argues that the trial court erred in rejecting its claim of municipal estoppel. Because Simplex did not raise this issue in its notice of appeal or obtain leave of this court to add the question, Simplex has waived the issue of estoppel and we will not consider it. See SUP. CT. R. 16(3)(b); see also State v. Peterson, 135 N.H. 713, 714-15, 609 A.2d 749, 750-51 (1992).

 

Finally, Simplex argues that the enforcement of the zoning ordinance was unconstitutional because the restriction against commercial development was not equally applied to other Woodbury Avenue landowners. We decide cases on constitutional grounds only when necessary. See Olson v. Fitzwilliam, 142 N.H. 339, 345, 702 A.2d 318, 322 (1997). Because we reverse and remand on other grounds, we decline to address the merits of Simplex’s constitutional claims. See id.

 

 

 

 

NOTE

 

 

 

The standards in Simplex were subsequently superseded by the New Hampshire legislature. Discussing these new standards in Harborside Associates v. Parade Residence Hotel (N.H. 2011), the New Hampshire Supreme Court stated:

 

RSA 674:33, I(b) allows a zoning board to grant a variance if: (1) “[t]he variance will not be contrary to the public interest”; (2) “[t]he spirit of the ordinance is observed”; (3) “[s]ubstantial justice is done”; (4) “[t]he values of surrounding properties are not diminished”; and (5) “[l]iteral enforcement of the provisions of the ordinance would result in unnecessary hardship.”

 

RSA 674:33, I(b) contains two definitions of unnecessary hardship. See RSA 674:33, I(b)(5)(A), (B). Under the first definition:

 

 

(A) … “[U]nnecessary hardship” means that, owing to special conditions of the property that distinguish it from other properties in the area:

 

 

 

(i) No fair and substantial relationship exists between the general public purposes of the ordinance provision and the specific application of that provision to the property; and

 

 

 

(ii) The proposed use is a reasonable one.

 

 

RSA 674:33, I(b)(5)(A). The first definition of unnecessary hardship is similar, but not identical, to the test that we adopted in Simplex Technologies v. Town of Newington, 145 N.H. 727, 731-32 (2001). See Laws 2009, 307:5 (statement of legislative intent that first definition mirror Simplex test).

 

The statute provides that if an applicant fails to satisfy the first definition of unnecessary hardship, then it may still obtain a variance if it satisfies the second definition. See RSA 674:33, I(b)(5)(B). Under the second definition:

 

 

[A]n unnecessary hardship will be deemed to exist if, and only if, owing to special conditions of the property that distinguish it from other properties in the area, the property cannot be used in strict conformance with the ordinance, and a variance is therefore necessary to enable a reasonable use of it.

 

 

Id. This definition of unnecessary hardship is similar, but not identical, to the test for unnecessary hardship that we applied before Simplex. See, e.g., Governor’s Island Club v. Town of Gilford, 124 N.H. 126, 130 (1983); see also Laws 2009, 307:5 (statement of legislative intent that second definition mirror pre-Simplex test for unnecessary hardship “as exemplified by cases such as Governor’s Island”).

 

The statute provides that these definitions apply “whether the provision of the ordinance from which a variance is sought is a restriction on use, a dimensional or other limitation on a permitted use, or any other requirement of the ordinance.” RSA 674:33, I(b). The legislature’s statement of intent indicates that the purpose of this provision was to “eliminate the separate ‘unnecessary hardship’ standard for ‘area’ variances” that we adopted in Boccia v. City of Portsmouth, 151 N.H. 85, 92 (2004). Laws 2009, 307:5.

 

Krummenacher v. City of Minnetonka,

783 N.W.2d 721 (Minn. 2010)

 

 

 

Paul W. Chamberlain, Ryan R. Kuhlmann, Chamberlain Law Firm, Wayzata, MN, for appellant.

 

George C. Hoff, Shelley M. Ryan, Hoff, Barry & Kozar, P.A., Eden Prairie, MN, for respondent City of Minnetonka.

 

James M. Susag, Larkin, Hoffman, Daly & Lindgren Ltd., Bloomington, MN, for respondent JoAnne Liebeler.

 

Susan L. Naughton, St. Paul, MN, for amicus curiae League of Minnesota Cities.

 

 

 

Gildea, Justice.

 

 

 

This case involves the decision of respondent City of Minnetonka to grant a variance to respondent JoAnne Liebeler so that she could expand her nonconforming garage. Appellant Beat Krummenacher is Liebeler’s neighbor and he challenges the City’s decision. The district court upheld the City’s variance, and the court of appeals affirmed. See Krummenacher v. City of Minnetonka, 768 N.W.2d 377, 384 (Minn.App.2009). Because we conclude that the City applied the wrong standard to Liebeler’s variance request, we reverse and remand to the City for reconsideration under the correct standard.

 

… .

 

Krummenacher argues that the City’s decision was arbitrary and capricious because the City did not apply the proper standard to determine whether Liebeler demonstrated “undue hardship” as defined in Minn.Stat. § 462.357, subd. 6. This provision allows a city to grant a variance “from the literal provisions of the ordinance in instances where their strict enforcement would cause undue hardship because of circumstances unique to the individual property under consideration.” Minn.Stat. § 462.357, subd. 6.

 

Minnesota Statutes § 462.357, subd. 6, provides a definition of “undue hardship,” and that definition requires that three factors be met. Specifically, the statute defines “undue hardship” as meaning,

 

 

the property in question cannot be put to reasonable use if used under conditions allowed by the official controls, the plight of the landowner is due to circumstances unique to the property not created by the landowner, and the variance, if granted, will not alter the essential character of the locality.

 

 

Id. To receive a variance, the applicant must show that he or she meets all of the three statutory requirements of the “undue hardship” test. Id. In addition to satisfying the “undue hardship” requirement, the statute allows municipalities to grant variances only “when it is demonstrated that such actions will be in keeping with the spirit and intent of the ordinance.” Id. Krummenacher argues that Liebeler’s application does not meet any of the requirements for “undue hardship.”

 

The first factor a variance applicant must establish to satisfy the statute’s definition of “undue hardship” is that “the property in question cannot be put to reasonable use if used under conditions allowed by the official controls.” Minn.Stat. § 462.357, subd. 6; see also Minnetonka City Code § 300.07.1(a). Krummenacher argues that based on the plain and unambiguous language of the statute, a municipality may grant a variance only when the property cannot be put to any reasonable use without it. According to Krummenacher, Liebeler had a reasonable use for her garage without the addition of a yoga studio and craft room–its current use as a storage space for vehicles. Krummenacher argues therefore that the City did not have the statutory authority to grant the variance.

 

The court of appeals rejected this argument, relying on its decision in Rowell v. Board of Adjustment of Moorhead, 446 N.W.2d 917 (Minn.App.1989), rev. denied (Minn. Dec. 15, 1989). The court in that case interpreted the “undue hardship” section of Minn.Stat. § 462.357, subd. 6, as requiring a variance applicant to show that the “property owner would like to use the property in a reasonable manner that is prohibited by the ordinance.” Id. at 922.

 

The City urges that we should embrace the interpretation of “undue hardship” from Rowell, and it appears from the record that the Rowell “reasonable manner” standard is the standard the City used in evaluating Liebeler’s request for a variance. The City determined that the expansion of the garage was a reasonable use of the property and that the request met the other requirements of the statute. Specifically, as reflected in the City Council Resolution, the City found that “the proposal is reasonable” and with respect to “undue hardship,” that “[t]here is an undue hardship due to the topography of the site, width of the lot, location of the driveway and existing vegetation.”

 

The plain language of the statute and our precedent compel us to reject the City’s invitation to adopt Rowell’s interpretation of “undue hardship.” The statute provides that to prove “undue hardship,” the variance applicant must show that “the property in question cannot be put to a reasonable use” without the variance. Minn.Stat. § 462.357, subd. 6. Notwithstanding this language, the court of appeals concluded that “[t]his provision does not mean that a property owner must show the land cannot be put to any reasonable use without the variance.” Rowell, 446 N.W.2d at 922. The court of appeals essentially rewrote the statute to mean that a municipality may grant a variance when the “property owner would like to use the property in a reasonable manner that is prohibited by the ordinance.” Id. at 922. Although the Rowell “reasonable manner” standard has been used for over 20 years, we simply cannot reconcile that standard with the plain language of the statute.

 

The Rowell standard is also inconsistent with our precedent. In support of the application of a “reasonable manner” standard for determining “undue hardship,” Rowell cites Curry v. Young, 285 Minn. 387, 173 N.W.2d 410 (1969), for the proposition that a variance is “required where a setback requirement would force a property owner to build a much smaller structure.” Id. at 922. The version of Minn. Stat. § 462.357 in effect when Curry was decided did not contain the definition of “undue hardship” that is in the current version of the statute. See Minn.Stat. § 462.357 (1969). Moreover, while we discussed in Curry the dimensions of a structure that could theoretically be built to comply with the statutory requirements, we based our determination that the variance was properly granted on the municipality’s ordinance. That ordinance required a showing of “particular hardship,” and we concluded that the standard was met because the “plaintiffs’ lot, in the absence of a variance, would be unusable for any purpose.” Curry, 285 Minn. at 388-89, 396, 173 N.W.2d at 411, 415. The standard we applied in Curry, is more rigorous than the “reasonable manner” standard adopted in Rowell, and appears consistent with the plain language of the first part of the “undue hardship” definition that is in the current statute. See Minn. Stat. § 462.357, subd. 6.

 

In addition, in formulating the “reasonable manner” standard, the court in Rowell appears to have relied on the “practical difficulties” standard. See Rowell, 446 N.W.2d at 922. But we have made a clear distinction between the “practical difficulties” standard and the “undue hardship” standard. See Stadsvold, 754 N.W.2d at 328-31. As we explained in Stadsvold, the “practical difficulties” standard applies to review of county decisions to grant area variances, while the “undue hardship” standard applies to all municipal decisions to grant variances. Id. at 327-28 & n. 2. Compare Minn.Stat. § 462.357, subd. 6, with Minn.Stat. § 394.27, subd. 7 (2008).

 

In Stadsvold, we interpreted Minn.Stat. § 394.27, subd. 7, which sets forth the statutory standard for county variances. This statute contains both the “practical difficulties” standard and a “particular hardship” standard. Specifically, section 394.27 authorizes a county to grant variances from “the terms of any official control” but only when the property owner would face “practical difficulties or particular hardship” in meeting “the strict letter of any official control.” Minn.Stat. § 394.27, subd. 7.1 We distinguished the “less rigorous ‘practical difficulties’” standard that applies to area variance applications from the more rigorous “particular hardship” standard that applies to use variance applications. Stadsvold, 754 N.W.2d at 330-31.

 

Adopting the Rowell “reasonable manner” standard would be inconsistent with the distinction we made in Stadsvold between the “practical difficulties” and “hardship” standards. The legislature defined the “hardship” standard in the county statute the same way it defined the “undue hardship” standard in the municipal statute. Because the legislature used the same language in both the county and city variance statutes when defining “hardship,” our analysis in Stadsvold requires us to conclude that the “undue hardship” standard in Minn.Stat. § 462.357, subd. 6, is more demanding than the “practical difficulties” standard the court of appeals appears to have relied on in Rowell, 446 N.W.2d at 922.

 

Moreover, with respect to the “practical difficulties” standard, we identified in Stadsvold several factors the county should consider in assessing whether that standard was met:

 

 

(1) how substantial the variation is in relation to the requirement; (2) the effect the variance would have on government services; (3) whether the variance will effect a substantial change in the character of the neighborhood or will be a substantial detriment to neighboring properties; (4) whether the practical difficulty can be alleviated by a feasible method other than a variance; (5) how the practical difficulty occurred, including whether the landowner created the need for the variance; and (6) whether, in light of all of the above factors, allowing the variance will serve the interests of justice.

 

 

754 N.W.2d at 331 (footnote omitted). Rowell’s interpretation of the “undue hardship” standard, requiring only that the proposed use be “reasonable,” would render the “undue hardship” standard in section 462.357 less stringent than the “practical difficulties” standard and much less stringent than the “particular hardship” standard in the county variance statute, which the “undue hardship” standard appears to parallel. See Stadsvold, 754 N.W.2d at 331. In short, our analysis in Stadsvold simply does not leave room for the Rowell “reasonable manner” standard.

 

We recognize that the standard we apply today, while followed elsewhere, is not the universal rule.2 For example, in Simplex Technologies, Inc. v. Town of Newington, 145 N.H. 727, 766 A.2d 713 (2001), the New Hampshire Supreme Court provided a thorough and insightful review of the development of land use variance law, and its practical construction in modern times. The New Hampshire statute did not contain a specific definition of “unnecessary hardship,” like our statute does, and the court concluded that its prior definition of the statutory term “unnecessary hardship” “ha[d] become too restrictive in light of the constitutional protections by which it must be tempered.” Id. at 717. The New Hampshire Supreme Court framed the issue in the following terms:

 

 

Inevitably and necessarily there is a tension between zoning ordinances and property rights, as courts balance the right of citizens to the enjoyment of private property with the right of municipalities to restrict property use. In this balancing process, constitutional property rights must be respected and protected from unreasonable zoning restrictions.

 

 

Id. at 716-17. In light of these considerations, the New Hampshire Supreme Court said that “unnecessary hardship” would, in the future, be established when a landowner showed that (1) a zoning restriction as applied interferes with a reasonable use of the property, considering the unique setting of the property in its environment; (2) no fair and substantial relationship exists between the general purposes of the zoning ordinance and the specific restriction on the property; and (3) the variance would not injure the public or private rights of others. Id. at 717.

 

Had the Minnesota Legislature not defined “undue hardship” in Minn.Stat. § 462.357, subd. 6, we might consider the approach articulated in Simplex. A flexible variance standard allows municipalities to make modest adjustments to the detailed application of a regulatory scheme when a zoning ordinance imposes significant burdens on an individual, and relief can be fashioned without harm to the neighbors, the community, or the overall purposes of the ordinance. See David W. Owens, The Zoning Variance: Reappraisal and Recommendations for Reform of a Much-Maligned Tool, 29 Colum. J. Envtl. L. 279, 317 (2004) (“If the variance power is to be used both as a constitutional safeguard and as a tool for flexibility, zoning enabling acts and local ordinances should be amended to delineate these two purposes and set different standards for each. The failure to make such a distinction underlies much of the past controversy regarding variances. Courts and commentators have traditionally viewed the variances as the former–a very limited tool for avoidance of constitutional infirmity in extraordinary cases. Most variance petitions, and consequently most board of adjustment decision-making, have viewed the variances as the latter–a tool to provide flexible implementation rather than constitutional infirmity.”).

 

We recognize that the Rowell “reasonable manner” standard represents a longstanding interpretation of the undue hardship standard in Minn.Stat. § 462.357, subd. 6, and that Minnesota municipalities have been granting variances under the “reasonable manner” standard for many years. We also recognize that our decision will result in a restriction on a municipality’s authority to grant variances as compared with the “reasonable manner” standard. But whatever value we may find in a more flexible standard, particularly with regard to area variances, we cannot ignore the plain language of the statute. See State v. Peck, 773 N.W.2d 768, 773 (Minn. 2009) (“We have no opportunity to ignore part of the legislature’s definition.”). We are unable to interpret the statutory language to mean anything other than what the text clearly says–that to obtain a municipal variance, an applicant must establish that “the property in question cannot be put to a reasonable use if used under conditions allowed by the official controls.” Minn.Stat. § 462.357, subd. 6. Therefore, unless and until the legislature takes action to provide a more flexible variance standard for municipalities, we are constrained by the language of the statute to hold that a municipality does not have the authority to grant a variance unless the applicant can show that her property cannot be put to a reasonable use without the variance.

 

Based on the plain language of the statute, and our precedent interpreting language similar to “undue hardship” in the context of a local government’s authority to grant variances, we reject the “reasonable manner” standard from Rowell. We hold that the City inaccurately applied the first factor in the “undue hardship” definition of Minn.Stat. § 462.357, subd. 6. Our resolution of this issue makes it unnecessary for us to resolve the other issues Krummenacher raises on appeal.

 

… . We reverse and remand the matter to the City for renewed consideration of Liebeler’s variance request in light of our rejection of the “reasonable manner” standard from Rowell.

 


FOOTNOTES

    1. The same dichotomy of language at issue in Stadsvold existed in the predecessor to the municipal zoning statute, section 462.357. Until 1965, section 462.22 (enacted in 1929, repealed in 1965) granted municipalities the power to vary or modify the application of a zoning regulation where there were “practical difficulties or unnecessary hardship” in complying with the strict letter of the regulation. Minn.Stat. § 462.22 (1961). In 1965, the legislature replaced Minn.Stat. § 462.22 with Minn.Stat. § 462.357. Act of May 22, 1965, c. 670, § 7, 1965 Minn. Laws 995, 1000-03. The new statute replaced the “practical difficulties or unnecessary hardship” standard with the current single “undue hardship” standard. Id. “Undue hardship” was undefined in the statute until 1982, when the legislature, borrowing the definition of “hardship” from the county variance statute, Minn.Stat. § 394.27, added the current definition of “undue hardship” to the statute. Act of Mar. 22, 1982, ch. 507, § 22, 1982 Minn. Laws 592, 593.

 

    1. While most jurisdictions use the phrase “unnecessary hardship” rather than “undue hardship” as the applicable standard, many jurisdictions appear to require that the variance applicant establish real hardship if the variance is denied rather than simply requiring that the applicant show the reasonableness of the proposed use. [citations omitted]

 

 

 

2.3. Special Use Permits

 

Jones v. City of Carbondale,

576 N.E.2d 909 (1991)

 

 

 

Paul G. Schoen, Michael F. Dahlen, John S. Rendleman, III, Feirich, Schoen, Mager, Green, Carbondale, for plaintiff-appellant.

 

Patricia S. McMeen, Gilbert, Kimmel, Huffman & Prosser, Ltd., Carbondale, for defendant-appellee.

 

 

 

Justice Chapman delivered the opinion of the court:

 

 

 

Hill House, Inc., filed an application with the City of Carbondale (City) for a special use permit on May 30, 1989. Thereafter, William Jones filed a petition seeking to invoke the provisions of section 11-13-14 of the Illinois Municipal Code which provides in pertinent part:

 

 

“In case of a written protest against any proposed amendment of the regulations or districts, signed and acknowledged by * * * the owners of 20% of the frontage immediately adjoining the frontage proposed to be altered, is [sic] filed with the clerk of the municipality, the amendment shall not be passed except by a favorable vote of two-thirds of the aldermen or trustees of the municipality then holding office.” (Ill.Rev.Stat.1989, ch. 24, par. 11-13-14.)

 

 

The city council took no formal action on Jones’ petition as it determined that section 11-13-14 was inapplicable to the grant of a special use permit. On July 3, 1989, the city council, by a simple majority, adopted a resolution which granted the special use request submitted by Hill House, Inc.

 

Jones then filed a two-count complaint for declaratory judgment in the circuit court. This appeal concerns the disposition of count I; therefore, we will limit our discussion to that count.

 

In count I, Jones requested that the court: (1) declare the rights of the plaintiff to invoke the provisions of section 11-13-14 of the Municipal Code; (2) declare the grant of the special use null and void; and (3) enjoin the City of Carbondale from issuing the special use certificate. In its answer to the complaint, the city admitted: (1) that the objection was filed by the requisite percentage of frontage owners; (2) that the city council took no formal action on Jones’ petition invoking the two-thirds majority provision of section 11-13-14; and (3) that the city council approved the special use certificate by a vote of three in favor and two opposed.

 

Thereafter, Jones filed a motion for summary judgment as to both counts of his complaint. The city responded that the granting of the special use was not a violation of either section 11-13-14 of the Municipal Code or section 15-2-95.E of the Carbondale Revised Code because neither section is applicable to a request for a special use permit. The circuit court denied Jones’ motion for summary judgment as to counts I and II. Jones thereupon requested a finding of appealable interlocutory order as to count I of his complaint, pursuant to Supreme Court Rule 308 (134 Ill.2d R. 308). On May 8, 1990, the circuit court entered an order identifying the issue pursuant to Rule 308 as follows:

 

 

“Whether the grant of a special use permit for property uses which are not principal permitted uses is an amendment to the regulations or districts as contemplated by Section 11-13-14 of the Municipal Code providing for the requirement of passage by extra ordinary [sic] majorities of the zoning authority.”

 

 

… .

 

Zoning ordinances typically provide three mechanisms to accommodate circumstances for which the generalized ordinance regulatory scheme is imperfect: the variance, zoning amendment, and special use permit. (Connor, Zoning, in Illinois Municipal Law ch. 10, § 10.16 (Ill.Inst. for ContLegal Educ.1978).) While these tools are similar in that they all deviate from the principal permitted uses of a zoning ordinance, they differ in their scope and purpose.

 

A variance is a grant of relief to an owner from the literal requirements of the ordinance where literal enforcement would cause him undue hardship. (City of Clinton v. Glasson (1976), 35 Ill.App.3d 745, 748, 342 N.E.2d 229, 231.) It has been recognized that because the special use may have the same impact upon neighboring property as a variance, procedural safeguards similar to those prescribed for variances might be desirable for special uses as well. (Kotrich v. County of Du Page (1960), 19 Ill.2d 181, 187, 166 N.E.2d 601, 605.) However, the supreme court determined that the procedural requirements for variances are not, without legislative directive, imposed upon special uses. See Kotrich, 19 Ill.2d at 188,166 N.E.2d at 605.

 

An amendment to a zoning ordinance changes or alters the original ordinance or some of its provisions. (Athey v. City of Peru (1974), 22 Ill.App.3d 363, 367, 317 N.E.2d 294, 297.) In the instant case Jones argues that because the special use authorizes use of the property contrary to the ordinance, it is an amendment and the voting requirements attendant to an amendment apply. We disagree.

 

The ordinance at issue in this case is set forth in section 15-2-24 of the Carbondale Revised Code:

 

 

“A. Statement of Intent: This district is created to provide land for purposes devoted primarily to the production of agricultural products such as field crops, livestock, fowl and other conventional agricultural pursuits. Other limited compatible uses are also permitted. This district is also created to assist in the conservation of the natural resources within the jurisdiction of this Article by encouraging practices which will conserve soil, * * *. Uses not related to agriculture are discouraged. When the public interest will be served and only when a contribution will be made to orderly growth, portions of this district may be rezoned for alternative uses.

 

 

 

B. Permitted Principal Uses and Structures:

 

 

 

1. all agricultural uses

 

 

 

2. cemeteries

 

 

 

3. churches[.]

 

 

 

* * * * * *

 

 

 

C. Permitted Accessory Uses and Structures: Accessory uses and structures customarily incidental to permitted principal uses and on the same parcel, including but not limited to:

 

 

 

1. market facilities for sale of products grown on the premises

 

 

 

2. artificial lakes[.]

 

 

 

 

 

* * * * * *

 

 

 

 

 

D. Special Uses: After a public hearing before the Planning Commission, the City Council may permit as special uses the following uses which are subject to: (a) the “Procedures” as prescribed in 15-2-57; (b) the lot area, lot width, yards, and height limitations of this district unless specified otherwise in the special use; (c) the performance standards as prescribed in this district for each special use (if any):

 

 

 

1. commercial agricultural storage operation

 

 

 

2. commercial fishing, hunting lodge, gun club or related operation

 

 

 

3. drive-in theater

 

 

 

4. licensed home or institution which provides for the care or custody or education or welfare of persons, not including hospitals

 

 

 

* * * * * *

 

 

 

(Carbondale Revised Code (1990), section 15-2-24.)

 

 

We note that while the “statement of intent” recommends that the zoning district be used primarily for agricultural endeavors, the ordinance provides not only for permitted and accessory principal uses, but also provides for specific special uses.

 

A special use is a permission by the Board to an owner to use his property in a manner contrary to the ordinance provided that the intended use is one of those specifically listed in the ordinance and provided that the public convenience will be served by the use. (Parkview Colonial Manor Investment Corp. v. Board of Zoning Appeals of O’Fallon (1979), 70 Ill.App.3d 577, 581, 26 Ill.Dec. 876, 878, 388 N.E.2d 877, 879, citing Rosenfeld v. Zoning Board of Appeals of Chicago (1958), 19 Ill.App.2d 447, 450, 154 N.E.2d 323, 325.) As stated in Parkview:

 

 

“Where special exception uses are provided for, they have their genesis in the ordinance and the body to which the power of administering them is delegated[] must look to the terms of the ordinance itself for the measure of its power.” (Emphasis added.) (Parkview, 70 Ill.App.3d at 581, 26 Ill.Dec. at 878, 388 N.E.2d at 879.)

 

 

The very nature of a special use, whose origins come from the ordinance itself, is contrasted sharply with the essence of an amendment’s nature. A permitted special use authorizes a use of the land pursuant to the existing zoning ordinance. No change or alteration in the ordinance itself is required in order to effect a special use. When the special use was granted in this case, section 15-2-24 of the Carbondale Revised Code was neither altered nor repealed. Rather, the only action necessary was the invocation of that portion of the ordinance which listed the permissible special uses.

 

Jones points out that the resolution adopted by the city granting the special use requires the applicant to comply with four conditions, none of which are contained within the ordinance. The resolution requires that: (1) the city be given site plan approval; (2) building construction be done in accordance with Illinois and Carbondale building codes; (3) the applicant must connect to city water and sanitary sewer mains; and (4) the applicant must dedicate land to allow for street improvements. Jones argues that the city has clearly amended the zoning regulations by imposing requirements which are not otherwise imposed on other landowners within the zoning district.

 

The Illinois Municipal Code provides in part that:

 

 

“a special use shall be permitted only upon evidence that such use meets standards established for such classification in the ordinances, and the granting of permission therefor may be subject to conditions reasonably necessary to meet such standards. * * *” (Ill.Rev.Stat. 1989, ch. 24, par. 11-13-1.1.)

 

 

The ordinance at issue provides that a special use may be permitted subject to:

 

 

“(a) the “Procedures” as prescribed in 15-2-57; (b) the lot area, lot width, yards, and height limitations of this district unless specified otherwise in the special use; (c) the performance standards as prescribed in this district for each special use * * *”. (Carbondale Revised Code (1990), section 15-2-24(D).)

 

 

We have reviewed the procedures as prescribed in section 15-2-57 of the Carbondale Revised Code and do not find the four conditions imposed upon the special use applicant contrary to the performance standards which are provided in ‘section 15-2-57. Because the plaintiff has otherwise failed to demonstrate how the four conditions imposed upon the special use applicant are not reasonably necessary to meet the standards as provided in the ordinance (Ill.Rev.Stat.1989, ch. 24, par. 11-13-1.1), we cannot find that the imposition of the conditions constitute an amendment of the ordinance.

 

… .

 

In conclusion, we find that the grant of a special use permit for property uses which are not principal permitted uses is not an amendment to the regulations or districts as contemplated by section 11-13-14 of the Municipal Code and does not require passage by extraordinary majorities of the zoning authority.

 

Affirmed.

 

 

FSL Corp. v. Harrington,

262 Ga. 725 (1993)

 

 

 

Schreeder, Wheeler & Flint, David H. Flint, Mark W. Forsling, for appellant.

 

McVay & Stubbs, Robert S. Stubbs III, for appellees.

 

 

 

Clarke, Chief Justice.

 

 

 

The Superior Court of Forsyth County denied appellant FSL’s petition for mandamus to require the Board of Commissioners (the Board) of Forsyth County to approve a special-use permit for a sanitary landfill. Because the zoning ordinance authorizing the permit provides no ascertainable limits on the Board’s discretion to grant or deny applications, we reverse the trial court’s order.

 

FSL contracted to purchase property zoned for agricultural use located in Forsyth County next to the county landfill in a sparsely populated area along the Etowah River. The Etowah is a source of drinking water for the county. A county ordinance allows property zoned for agriculture to be used as a sanitary landfill if a special-use permit is obtained from the Board after review by the County Health Officer and the Forsyth County Planning Commission (Commission).

 

Appellant FSL filed an application with the Forsyth County Department of Planning and Development on December 20, 1991, for a special-use permit for a sanitary landfill. The Commission considered FSL’s application at a public hearing on January 28, 1992. After the hearing, in which many citizens expressed their disapproval, the Commission unanimously recommended the denial of the application. The Board unanimously denied the application on February 24, 1992.

 

In response to the denial of the application, FSL filed a petition for mandamus with the Superior Court of Forsyth County on March 24, 1992. FSL alleged that the Board based its denial on an unconstitutionally vague ordinance that provides no limits on the Board’s discretion. The court denied appellant’s petition on May 27, 1992. We granted FSL’s application for discretionary appeal on June 30, 1992.

 

Section 14-1.1 (k) by itself lacks any objective criteria for approval of a special-use permit. Appellee argues that the preamble to the Comprehensive Zoning and Land Use Resolution and Ordinance of Forsyth County contains the general goals of the ordinance. The preamble provides as follows:

 

 

WHEREAS the Board of Commissioners wishes to lessen congestion in the public thoroughfares, fire and health dangers, and soil erosion and sedimentation; and

 

 

 

WHEREAS the Board of Commissioners wishes to assure adequate light and air, and the sound development and use of land which provides adequate transportation, water supply, drainage, sanitation, educational opportunity and recreation; and

 

 

 

WHEREAS the Board of Commissioners wishes to classify land uses and the distribution of and uses; and

 

 

 

WHEREAS the Board of Commissioners wishes to provide for economically sound and stable land development by assuring the provision in land developments of adequate streets, utilities, services, traffic access and circulation, public open spaces and maintenance continuity; and

 

 

 

WHEREAS the Board of Commissioners wishes to assure compliance with a comprehensive plan …

 

 

The appellee relies on the case of Phillips v. Mills, Civil Action No. 86-15,138 (May 29, 1986, Superior Court of Forsyth County), aff’d without opinion, 256 Ga. XXVIII (1987). The trial court in Phillips found that this preamble contained sufficient guidelines for the Board and upheld the ordinance against a vagueness challenge. In Dinsmore Dev. Co. v. Cherokee County, 260 Ga. 727 (398 SE2d 539) (1990), we found that a purpose statement similar to this preamble contained no objective criteria upon which the zoning board could base its decision. We therefore reversed the trial court’s denial of mandamus. We hold that Dinsmore is controlling. The preamble to the ordinance “contains only a statement of general goals and purposes, and provides no criteria to govern the [Board’s] determination.” Dinsmore, supra at 729. Provided all other requirements have been met, appellant is entitled to approval for the special-use permit it seeks.

 

 

 

 

NOTE

 

 

 

Some other jurisdictions allow very broad discretion in ordinances providing for special use permits. The Wisconsin Supreme Court, in Weber v. Town of Saukville (quotation marks and citations omitted), explained:

 

 

[C]onditional use standards often lack specificity, since their purpose is to confer a degree of flexibility in the land use regulations.

 

 

If it were possible to find a legislative draftsman capable of performing such a task—of drafting standards to govern the likely as well as all possible contingencies relating to a conditional use—there would be no need to make the use a conditional one. In that case they could be made part of the zoning ordinance proper requiring no exercise of discretion on the part of anyone… . If the purposes of zoning are to be accomplished, the master zoning restrictions or standards must be definite while the provisions pertaining to a conditional use…must of necessity be broad and permit an exercise of discretion.

 

 

3 Edward H. Ziegler, Jr., Rathkopf’s The Law of Zoning and Planning § 41.11, at 49 (4th ed. 1996).

 

 

2.4. Comprehensive Planning

 

Hector v. City of Fargo,

760 N.W.2d 108 (N.D. 2009).

 

 

 

Jonathan T. Garaas, Garaas Law Firm, DeMores Office Park, Fargo, ND, for petitioners and appellants.

 

Mike Miller (argued) and Stacey Tjon Bossart (appeared), Assistant City Attorneys, Fargo, ND, for respondent and appellee.

 

 

 

Vande Walle, Chief Justice.

 

 

 

Fred and Earlyne Hector appealed from a district court judgment affirming the decision of the Fargo City Commission to deny their application for zoning map amendments and growth plan modifications regarding their property located in south Fargo. We affirm, holding the City did not act arbitrarily, capriciously or unreasonably when it denied the Hectors’ zoning request. Furthermore, we hold the district court did not err when it found the City had adopted a comprehensive plan as required by N.D.C.C. s 40-47-03, and the City did not engage in illegal contract zoning with the Hectors.

 

… .

 

The Hectors argue the City of Fargo violated North Dakota statutes by not having a comprehensive plan for its zoning regulations. Specifically, the Hectors assert that, by the absence of such a plan, there exists no properly promulgated set of standards by which to measure the actions of the City when making zoning decisions. The Hectors further argue that no such comprehensive plan was passed under the required statutory procedures.

 

Section 40-47-01, N.D.C.C., states that the governing body of a city may pass zoning regulations to promote the health, safety, morals or general welfare of the community. The Code further dictates that such regulations:

 

 

[B]e made with reasonable consideration as to the character of each district and its peculiar suitability for particular uses with a view to conserving the value of buildings and encouraging the most appropriate use of land throughout the city. The comprehensive plan shall be a statement in documented text setting forth explicit goals, objectives, policies, and standards of the jurisdiction to guide public and private development within its control.

 

 

N.D.C.C. s 40-47-03 (2008). Zoning regulations must also go through several formal procedures to be effective, including: copies of proposed regulations must be filed with the city auditor, a public hearing must be held on the regulations, and notice of passed regulations must be published in the official newspaper of the city. N.D.C.C. s 40-47-04.

 

Here, the City of Fargo points to a list of over 80 policy statements as containing the goals, objectives, and standards of the City pertaining to zoning regulations. This list, called the “Comprehensive Policy Plan,” provides detailed plans for the Fargo community. However, the City of Fargo adopted the Policy Plan as a resolution rather than as an ordinance. This Court has previously noted the informal nature of resolutions, and the tendency of such acts to fall short of establishing a formal, permanent rule of government. See Mitchell v. City of Parshall, 108 N.W.2d 12, 13-14 (N.D.1961) (reviewing the “temporary” nature of resolutions which are generally in the form of the municipality or official body’s opinions rather than binding law). Regardless of the stricture of the Policy Plan’s passage, the policy statements embodied within the Plan were later codified in Fargo’s Land Development Code. The Land Development Code satisfies the procedural guidelines set forth by N.D.C.C. s 40-47-04, and, like the Policy Plan, contains the standards by which the City of Fargo must adhere when making zoning decisions. Included within its provisions, the Land Development Code spells out what Fargo may do when zoning in extra-territorial areas (FMC s 20-0108), and denotes what activities and buildings are permitted in certain zoning areas (FMC s 20-0401). When the Land Development Code requires a land use to conform to specific standards, very strict criteria must be met by any potential user. See FMC s 20-0402 (setting out use-specific standards for several uses, including off-premise advertising signs, day care, religious institutions and adult entertainment centers). Furthermore, it was the Land Development Code which the Planning Department staff relied upon in its analysis recommending denial of the Hectors’ proposed amendments, which was then relied upon by the City Commission when it denied the Hectors’ application.

 

Through its detailed standards and restrictions, the Land Development Code formulates a comprehensive plan which informs builders and landowners of their rights and the boundaries within which they must work when planning their land use. The City of Fargo has complied with the requirements of N.D.C.C. ss 40-47-03 and 40-47-04.

 

… .

 

 

Wolf v. City of Ely,

493 N.W.2d 846 (1992)

 

 

 

Robert S. Hatala of Crawford, Sullivan, Read, Roemerman & Brady, P.C., Cedar Rapids, for appellant.

 

Gary J. Shea of Shea Law Offices, Cedar Rapids, for appellees.

 

 

 

Considered en banc.

 

 

 

Andreasen, Justice.

 

 

 

… .

 

John and Pat Wolf own three connecting parcels of land in or adjacent to the City of Ely that have been identified as parcels A, B and C. The Wolfs operate a salvage or junkyard on their property. Parcel A is located in an area that was zoned manufacturing; parcel B is located in an area zoned commercial; and parcel C is located in an area zoned residential or agricultural.

 

On May 6, 1987, Ely brought an action to enjoin the Wolfs from operating a salvage yard on parcel A. City of Ely v. John and Pat Wolf, Linn County, EQ 10962. On October 23, 1989, district judge Paul J. Kilburg entered a decree invalidating Ely’s manufacturing (M-1) zoning classification and denying the City’s request for injunctive relief. The court held the M-1 classification was invalid because the 1978 ordinance constituted exclusionary zoning and was not promulgated pursuant to a comprehensive plan as required by Iowa Code section 414.3 (1977). No appeal was taken from the court’s judgment.

 

The Wolfs filed the present action on April 9, 1990, seeking a court judgment declaring the entire zoning ordinance invalid and their use of their property (parcels A, B and C) lawful.1 The Wolfs allege the entire zoning ordinance is invalid for two reasons. First, it was not adopted in accordance with a comprehensive plan. Second, it is overbroad and exclusionary in violation of their constitutional due process rights.

 

Following trial, district judge Thomas M. Horan entered a ruling and judgment on June 3, 1991. The court concluded the “ordinance was not made in accordance with a comprehensive plan as required by Section 414.3, the Code.” Accordingly, the court declared Ely’s entire zoning ordinance invalid.

 

… .

 

It is said:

 

 

Comprehensive zoning is general zoning throughout a municipality according to a comprehensive plan to control and direct the use and development of property in the area by dividing it into districts according to present and potential uses.

 

 

Brackett v. City of Des Moines, 246 Iowa 249, 257-58, 67 N.W.2d 542, 546 (1954). Iowa Code section 414.3 requires that zoning regulations “shall be made in accordance with a comprehensive plan.” The requirement of a comprehensive plan is found in the zoning law of those states that have taken the standard state zoning enabling act as their model. Vestal, Iowa Land Use and Zoning Law § 3.01(d) (1979). The act was first drafted in the early 1920s and was adopted in whole or in part by thirty-five states. Id. at n. 19. The act did not define the term comprehensive plan.

 

A majority of courts in states where zoning must be “in accordance with a comprehensive plan” hold a plan external to the zoning ordinance is not required. 2 The American Law of Real Property, Planning and Zoning § 12.02 (1991). However, an increasing number of legislatures specifically require that a plan be adopted. Id. The “comprehensive plan” requirement was imposed to prevent piecemeal and haphazard zoning. Standard State Zoning Enabling Act (United States Department of Commerce, § 3 n. 22 (1922)). The word “plan” connotes an integrated product of a rational process; the word “comprehensive” requires something beyond a piecemeal approach. Kozesnik v. Township of Montgomery, 24 N.J. 154, 166, 131 A.2d 1, 7 (1957). We have suggested the purpose of a comprehensive plan is “to control and direct the use and development of property in the area by dividing it into districts according to present and potential uses.” Plaza Recreation Ctr. v. Sioux City, 253 Iowa 246, 258, 111 N.W.2d 758, 765 (1961); see also Bell v. City of Elkhorn, 122 Wis.2d 558, 564-65, 364 N.W.2d 144, 147 (1985) (list of objectives sought to be achieved through development of a comprehensive plan).

 

Iowa Code section 358A.5, relating to county zoning, contains the identical requirement. In discussing this requirement, we stated: “If the Board gave full consideration to the problem presented, including the needs of the public, changing conditions, and the similarity of other land in the same area, then it has zoned in accordance with a comprehensive plan.” Montgomery v. Bremer County Bd. of Supervisors, 299 N.W.2d 687, 695 (Iowa 1980). The Iowa Court of Appeals commented, “nothing in Chapter 358A requires a county to reduce a comprehensive plan to written form.” Webb v. Giltner, 468 N.W.2d 838, 840 (Iowa App.1991). The comprehensive plan requirement is intended to ensure the county board acts rationally rather than arbitrarily in exercising their delegated zoning authority. Id. As suggested by the court of appeals, the generic standard in Montgomery would apply when a county either has no individualized comprehensive plan or has not reduced that plan to writing. Id.

 

The Wolfs challenged the 1978 zoning ordinance in both the action brought by the City in 1987 and in their action against the City in 1990. In the 1991 decree, the district court concluded that a separate formal document called a comprehensive plan was not required to validate the City’s zoning ordinance. Nevertheless, the court found “there is no evidence to indicate that the City engaged in any rational planning before the adoption of the 1978 ordinance.”

 

This declaratory judgment action was tried as an equitable action. Our scope of review is de novo. Iowa R.App.P. 4. In our de novo review of the evidence, we carefully examine the zoning ordinance and zoning map, the testimony of witnesses who were involved in the adoption of the ordinances, and other relevant evidence.

 

Prior to the adoption of the 1978 zoning ordinance, Ely had established a planning and zoning commission. Under a 1976 ordinance, the Ely planning and zoning commission had authority to make such surveys, studies, maps, or plans which the commission believed bears a relation to the general comprehensive plan. The ordinance provided for the preparation of a comprehensive plan and directed that the commission

 

 

make careful and comprehensive studies of present conditions and future growth of the city and with due regard to its relation to neighboring territory. The plan shall be made with the general purpose of guiding and accomplishing a co-ordinated, adjusted, and harmonious development of the city and its environments which will, in accordance with the present and future needs, best promote health, safety, morals, order, convenience, prosperity, and general welfare, as well as efficiency and economy in the process of development.

 

 

It further provided that after adoption of a comprehensive plan by the commission an attested copy of the plan shall be certified to the council. The council could then approve the plan, and it would constitute the City’s comprehensive plan. The City council could not take action until it had received the final report from the zoning commission. Iowa Code § 414.6 (1977).

 

Contrary to the statutory and ordinance requirements, no comprehensive plan was developed by the commission and appropriately presented to the council. At trial, Thomas M. Tjelmeland, the mayor of Ely, admitted he was unaware of any written criteria used in development of the 1978 zoning ordinance. He testified the comprehensive plan consisted of the City’s zoning ordinance combined with its zoning map. There were no other documents that he relied upon in interpreting the zoning ordinance.

 

A councilman of the City testified that no single person had been designated as administrative officer responsible for the administering of the zoning ordinance. The mayor and members of the Ely council would bring zoning matters to the entire council on an ad hoc basis. The councilman further testified that, in making decisions as to whether a specific use is allowed in a specific zone, he just listened, and if he thought it was right, he would go along with it. He had not heard of a comprehensive zoning plan.

 

The City offered evidence that, in June of 1975, the Linn County Regional Planning Commission (county commission) prepared a housing and community development study and a Linn County regional land use policy plan. The study recommended Ely and other nonmetropolitan cities use the plan as a guide for future growth and development. Although mayor Tjelmeland represented the City of Ely on the county commission, he testified he was unaware of any studies conducted when the 1978 zoning ordinance was drafted. He was unaware of any writing that set forth any proposed or future land use. He testified the 1975 regional housing and land use policy plans were not used in any of Ely’s planning or zoning decisions.

 

The 1978 zoning ordinance was developed by combining different sections and provisions of two or more “model” municipal zoning ordinances. Throughout the ordinance, specific provisions of the model ordinances were deleted, marked “omit” or additional provisions were added in longhand. The ordinance established seven districts for specific use: agricultural (A-1), residential (R-1, R-2, R-3), commercial (C-1), industrial (M-1), and public (P-1). The ordinance generally regulates the districts by identifying the principal permitted uses and special uses for each district. The special uses are allowed only if the board of adjustment issues a special permit. The zoning ordinance refers to a “zoning district map” that is made a part of the ordinance.

 

At least two, and possibly four, different zoning maps have been identified as the official city zoning map. The City offered a crayola-colored zoning map as the official zoning map. This map was different than the zoning map identified as Ely’s official zoning map in the first trial in 1989. One of the maps indicates the Wolfs’ “tract C” was agricultural; the other indicates it was residential. The City acknowledges the 1978 zoning ordinance and zoning map have not been officially amended, changed, modified, or repealed.

 

Ely’s zoning ordinance and zoning map do not suggest an integrated product of rational planning. The ordinance contains glaring omissions and serious structural problems. Although a significant portion of the land within the city limits is identified as agricultural land, the zoning ordinance makes no provisions regulating its use. Some words and terms that are defined in the ordinance are not used later in the ordinance. Extensive provisions relating to mobile homes are included in the definition section. Under the ordinance provisions, mobile homes are permitted only in an approved mobile home park. However, a mobile home park is not a permitted use or special use in any of the seven districts. Junkyards are specifically defined, although they are not a permitted use or special use in any of the districts. In one part of the zoning ordinance, the City prohibits fences of over five feet; in another part it requires a six-foot fence. The ordinance has twenty-eight separate parking classes for off-street parking, although the population of Ely was 275 in 1970 and 425 in 1980.

 

The structural problems in the zoning ordinance obviously arose from a careless combining of two or more model ordinances. Although such a clip-and-paste ordinance could produce a valid ordinance if carefully and rationally prepared, here the structure and content of the ordinance suggests a careless and irrational process was employed.

 

Other evidence demonstrates the City’s failure to adopt the zoning ordinance in accordance with a comprehensive plan. Studies and plans developed by the county commission in 1975 were not considered by the council. The Ely Planning Commission failed to comply with the City ordinance requirement that a comprehensive plan be certified to the council as an attested copy of the plan. Although city records indicate the commission had presented a proposed zoning ordinance and zoning map in 1977, the records do not identify the proposed ordinance and map. Because the official zoning map was not clearly identified, there was confusion as to the limitation of uses to be applied to certain parcels of land. Amendments or changes to the ordinance and zoning map were reported in the city records, but council approval was made by resolution, contrary to ordinance and statutory requirements.

 

Judge Kilburg in his 1989 decree found there was no comprehensive plan that would establish a basis for excluding all junk or salvage yards within Ely’s city limits. Based upon these deficiencies in the ordinance, the court stated: “It is unfair to state that the City of Ely had at the time of its passage, or has since had, a comprehensive plan in the M-1 district.” The court’s observations have application to the entire ordinance.

 

Judge Horan in his 1991 ruling and judgment found the evidence presented at trial indicates “very little planning at best.” We agree with the court’s conclusion that the evidence failed to show any rational planning before the adoption of the 1978 zoning ordinance. We, like the district court, find the City failed to comply with the requirement that zoning regulations be made in accordance with a comprehensive plan. Therefore, we need not address the Wolfs’ argument that the ordinance validity issue was litigated by the parties and decided by the court in its 1989 decree.

 

… .

 

AFFIRMED.

 

 

 

All Justices concur except LARSON, J., who dissents and is joined by HARRIS, J.

 

 

 

 

 

Larson, Justice (dissenting).

 

 

 

I dissent from Division III and the result.

 

Ely is a small town with limited financial resources, trying to maintain the aesthetic quality of a rural Iowa community. This ruling unnecessarily frustrates that effort.

 

Our cases hold, and the majority concedes, that no formal plan is required to satisfy the requirement of a comprehensive plan as a prerequisite to zoning.

 

Ely’s zoning ordinance is a part of a “comprehensive” plan. Despite the informality of the plan, any reasonable reading of the town’s ordinances, maps, and resolutions (which our cases say may constitute a comprehensive plan) should make it clear: a junkyard in the middle of town was not to be a part of its future development.

 

I would reverse and remand.

 

HARRIS, J., joins this dissent.

 


FOOTNOTES

    1. Because no appeal was taken by the Wolfs from the district court judgment, we need not address their request for issuance of a writ of mandamus contained in count II of their petition.

 

 

 

Pinecrest Lakes, Inc. v. Shidel,

795 So.2d 191 (Fla. 2001)

 

 

 

Jack J. Aiello and Ernest A. Cox, III, of Gunster, Yoakley, Valdes-Fauli & Stewart, P.A., West Palm Beach, for appellants.

 

Richard Grosso, General Counsel, Environmental & Land Use Law Center, Fort Lauderdale, for appellee.

 

Stephen H. Grimes and Lawrence E. Sellers, Jr. of Holland & Knight, LLP., Tallahassee, for Amici Curiae, National Association of Home Builders, Florida Home Builders Association, Florida Association of Realtors, and Association of Florida Community Developers, Inc.

 

Michael L. Rosen, Tallahassee, for Amicus Curiae, Florida Legal Foundation, Inc.

 

Terrell K. Arline, Legal Director, Tallahassee, Thomas G. Pelham, Kenneth J. Goldberg and Douglas W. Ackerman, Tallahassee, for Amici Curiae, The Florida Chapter of the American Planning Association, and 1000 Friends of Florida, Inc.

 

 

 

Farmer, J.

 

 

 

The ultimate issue raised in this case is unprecedented in Florida. The question is whether a trial court has the authority to order the complete demolition and removal of several multi-story buildings because the buildings are inconsistent with the County’s comprehensive land use plan. We conclude that the court is so empowered and affirm the decision under review.

 

Some twenty years ago, a developer1 purchased a 500-acre parcel of land in Martin County and set out to develop it in phases. Development there is governed by the Martin County Comprehensive Plan (the Comprehensive Plan).2 Phase One of the property was designated under the Comprehensive Plan as “Residential Estate,” meaning single-family homes on individual lots with a maximum density of 2 units per acre (UPA). The Comprehensive Plan provides that

 

 

“[w]here single family structures comprise the dominant structure type within these areas, new development of undeveloped abutting lands shall be required to include compatible structure types of land immediately adjacent to existing single family development.” [e.s.]

 

 

Phases One through Nine were developed as single-family homes on individual lots in very low densities.

 

The subject of this litigation, Phase Ten, is a 21-acre parcel between Phase One and Jensen Beach Boulevard, a divided highway designated both as “major” and “arterial.” Phase Ten was designated by the Comprehensive Plan as “Medium Density Residential” with a maximum of 8 UPA. The developer sought approval of three different site plans before finally erecting the buildings that are the subject of this litigation. In 1988, the developer first sought approval for an initial scheme of 3-story apartment buildings with a density of just under 8 UPA. Karen Shidel, since 1986 an owner of a single-family residence in the adjoining area of Phase One, along with other residents, opposed the project proposed by the developer. This initial site plan for Phase Ten was approved by the County but never acted upon.

 

Five years later the developer changed the proposed scheme to single family residences, and the County Commission approved a revised site plan for 29 single-family homes with a density of 1.37 UPA. Two years after that, however, the developer again changed its mind and returned to its original concept of multi-family structures. This time, the developer sought to develop 136 units in two-story buildings, with a density of 6.5 UPA. The County’s growth management staff recommended that the County Commission approve this second revised site plan for Phase Ten. Following a hearing at which a number of people objected to the proposal, including Shidel, the County Commission approved the revision and issued a Development Order3 for Phase Ten permitting the construction of 19 two-story buildings.

 

Claiming statutory authority, Shidel and another Phase One homeowner, one Charles Brooks, along with the Homeowners Associations for Phases One through Nine, then filed a verified complaint with the Martin County Commission challenging the consistency of the Development Order with the Comprehensive Plan, requesting rescission of the Development Order.4 In response to the verified complaint, after a hearing the County Commission confirmed its previous decision to issue the Development Order.

 

Shidel and Brooks then filed a civil action in the Circuit Court against Martin County under the same statutory authority.5 They alleged that the Development Order was inconsistent with the Comprehensive Plan. The developer intervened. Shidel and Brooks argued that their statutory challenge was a de novo proceeding in which the court should decide in the first instance whether the Development Order was consistent with the Comprehensive Plan. Martin County and the developer argued that the proceeding was in the nature of appellate review in which the County’s determination was entitled to deference and the court should consider only whether there was substantial competent evidence supporting the Development Order. Basing its decision solely on a review of the record created before the County Commission, the trial court found that the Development Order was consistent with the Comprehensive Plan and entered final judgment in favor of the developer.

 

At that point, the developer took stock of its position. It had prevailed before the County Commission and—at least initially —in the trial court. Technically, however, its approval for the project was not final. Developer considered whether to proceed to construct the buildings or instead await appellate review of the trial court’s decision. Ultimately the developer decided to commence construction, notwithstanding the pendency of an appeal. Accordingly, it applied for and received building permits for construction of Buildings 8, 9, 10, 11 and 12, and started on each of those buildings while the case was under consideration in court.6 When construction was just beginning, Shidel and Brooks sent written notice to the developer of their intention, should they prove successful in court, to seek demolition and removal of any construction undertaken while judicial consideration of the consistency issue was pending.

 

Appellate review did not produce the outcome for which the developer had hoped. In 1997 we reversed the trial court’s decision that the County’s consistency determination complied with the Comprehensive Plan. Poulos v. Martin County, 700 So.2d 163 (Fla. 4th DCA 1997). Specifically, we concluded that section 163.3215 required de novo consideration in the trial court on the consistency issue. Our opinion explained:

 

 

“if section 163.3215 was intended to provide for the circuit court to conduct an appellate review by certiorari, then the statutory language permitting the filing of the action up to 90 days after the granting of the development order is in conflict with the 30 day deadline outlined under the Florida Rules of Appellate Procedure.”

 

 

700 So.2d at 165. We further adopted an analysis by Judge Wentworth as to the meaning of section 163.3215:

 

 

“the … language in the statute … provides only for a suit or action clearly contemplating an evidentiary hearing before the court to determine the consistency issue on its merits in the light of the proceedings below but not confined to the matters of record in such proceedings.”

 

 

700 So.2d at 166 (quoting from Gregory v. City of Alachua, 553 So.2d 206, 211 (Fla. 1st DCA 1989) (Wentworth, J., dissenting)). We remanded the case for a trial de novo and for any appropriate relief.

 

On remand, the trial judge7 proceeded in two stages: the first stage involved a determination whether the Development Order was consistent with the Comprehensive Plan; and the second stage, which became necessary, addressed the remedy. While the case was pending on remand, developer continued with construction. The County conducted final inspections of Building 11 and 12, issuing certificates of occupancy (CO), and residents moved into the buildings. At the end of the consistency phase, the trial court entered a partial judgment finding that the Development Order was not consistent with the Comprehensive Plan. The trial de novo then proceeded to the remedy.

 

At the conclusion of the remedy phase, the trial court entered a Final Judgment. The court found that the Comprehensive Plan established a hierarchy of land uses, paying deference to lower density residential uses and providing protection to those areas. The “tiering policy” required that, for structures immediately adjacent to each other, any new structures to be added to the area must be both comparable and compatible to those already built and occupied.8 The court then found significant differences between the northern tier of Phase One and the adjacent southern tier of Phase Ten. The structures in Phase One were single level, single family residences, while the structures in Phase Ten were two-story apartment buildings with eight residential units. Therefore, the court found, the 8-residential unit, two-story, apartment buildings in Phase Ten were not compatible or comparable types of dwelling units with the single family, single level residences in Phase One; nor were they of comparable density. Consequently, the court determined, the Development Order was inconsistent with the Comprehensive Plan.

 

As regards the remedy, the Final Judgment found no evidence indicating that either Brooks or the Homeowners Association were damaged by any diminution in value. The court found that the Homeowners Association was not a person within the meaning of section 163.3215(2) and therefore had no standing to seek relief under section 163.3215. Accordingly, only plaintiff Shidel was entitled to seek injunctive relief under section 163.3215.

 

In granting such relief, the court found that the developer had acted in bad faith. Specifically, the court found that the developer continued construction during the pendency of the prior appeal and continued to build and lease during the trial— even after losing on the consistency issue. The court found that the developer “acted at [its] own peril in doing precisely what this lawsuit sought to prevent and now [is] subject to the power of the court to compel restoration of the status prior to construction.” The relief awarded was:

 

 

(1) the Court permanently enjoined Martin County from taking any further action on the subject Development Order for Phase Ten, other than to rescind it;

 

 

 

(2) the Court permanently enjoined developer and its successors in interest from any further development of Phase Ten under the subject Development Order; and

 

 

 

(3) the Court ordered developer to remove all apartment buildings from Phase Ten either through demolition or physical relocation by a date certain.

 

 

When the Final Judgment was entered, five of the eight-unit buildings had been constructed in Phase Ten (Buildings 8-12). Buildings 11 and 12 had already received their CO’s, and fifteen of their sixteen units were actually occupied. Building 10 was fully completed and was awaiting final inspection as of the date the remedies stage of trial began. Buildings 8 and 9 were 50% and 66% completed, respectively, also as of that date.

 

Following the entry of Final Judgment, the developer filed this timely appeal and moved for a stay pending review.9 The trial court granted a stay only as to the demolition order, allowing lessees to continue in possession of those apartments in Buildings 9-12 under actual lease when the trial court entered final judgment, as well as to those leases in Building 8 in existence as of the date of filing of the notice of appeal. The developer was prohibited, however, from entering into any renewals of existing leases upon expiration of the original term or any new leases of any apartments. Upon review, we affirmed the stay order. We now explain our decision on the merits.

 

 

 

 

I. The Consistency Issue

 

 

 

 

Initially the developer argues that the trial court erred in the consistency phase by failing to accord any deference to the County Commission’s interpretation of its own Comprehensive Plan when the County approved the second revised site plan and its multi-story, multi-family buildings. Conceding that the proceedings are de novo and that the Development Order is subject to “strict scrutiny” under the Comprehensive Plan as to the consistency issue, the developer nevertheless argues that the courts must bow to the County’s interpretation of its own Comprehensive Plan and the application of its many elements to the site plan. Developer argues that the statutes and cases accord such deference to a local government’s interpretation of its own Comprehensive Plan and that it was reversible error for the trial court in this case to fail to do so. In particular, developer relies on Southwest Ranches Homeowners Ass’n v. Broward County, 502 So.2d 931 (Fla. 4th DCA 1987), and B.B. McCormick & Sons, Inc. v. City of Jacksonville, 559 So.2d 252 (Fla. 1st DCA 1990). According to developer, these cases authorize the use of the highly deferential “fairly debatable” standard of review—customary with zoning decisions —to land use determinations such as the issue of consistency in this case. We disagree.

 

As we have already seen in this dispute, the applicable statute provides that:

 

 

“[a]ny aggrieved or adversely affected party may maintain an action for injunctive or other relief against any local government to prevent such local government from taking any action on a development order … which materially alters the use or density or intensity of use on a particular piece of property that is not consistent with the comprehensive plan….”

 

 

§ 163.3215(1), Fla. Stat. (2000). This statute obviously creates an action for an injunction against the enforcement of a development order, rather than to carry out such an order. The statute is aimed at development orders—which, by their very nature, must have been approved by a local government—so it is clear that the Legislature did not mean that local governments or developers would be the parties seeking injunctive relief under this provision.

 

Moreover there is but one basis for issuing the injunction: that the development order is not consistent with the Comprehensive Plan to the detriment of adjoining property owners. Hence the issuance of an injunction under section 163.3215(1) necessarily requires the judge to determine in the first instance whether a development order is consistent with the Comprehensive Plan. When a statute authorizes a citizen to bring an action to enjoin official conduct that is made improper by the statute, and that same statute necessitates a determination by the judge in the action as to whether the official’s conduct was improper under the statute, as a general matter the requirement for a determination of the propriety of the official action should not be understood as requiring the court to defer to the official whose conduct is being judged. While the Legislature could nevertheless possibly have some reason to require judges to require some deference to the officials whose conduct was thus put in issue, we would certainly expect to see such a requirement of deference spelled out in the statute with unmistakable clarity. Here it is not a question of any lack of clarity; the statute is utterly silent on the notion of deference. It is thus apparent that the structure and text of the statute do not impliedly involve any deference to the decision of the county officials. So we necessarily presume none was intended.10

 

Section 163.3194 requires that all development conform to the approved Comprehensive Plan, and that development orders be consistent with that Plan.11 The statute is framed as a rule, a command to cities and counties that they must comply with their own Comprehensive Plans after they have been approved by the State. The statute does not say that local governments shall have some discretion as to whether a proposed development should be consistent with the Comprehensive Plan. Consistency with a Comprehensive Plan is therefore not a discretionary matter. When the Legislature wants to give an agency discretion and then for the courts to defer to such discretion, it knows how to say that. Here it has not. We thus reject the developer’s contention that the trial court erred in failing to defer to the County’s interpretation of its own comprehensive plan.

 

Before we proceed to assess the trial court’s determination on the consistency issue, we pause to consider the history of the land development statutes. The State of Florida did not assert meaningful formal control over the explosive and unplanned development of land in this state until the passage of the first growth management statute, the Local Government Comprehensive Planning Act of 1975. Chapter 75-257, Laws of Fla. (the 1975 Act). The 1975 Act forced counties and cities to adopt comprehensive plans, but they were left to interpret such plans for themselves, largely free from effective oversight by the state. See, e.g., City of Jacksonville Beach v. Grubbs, 461 So.2d 160, 163 (Fla. 1st DCA 1984) (determination of when to conform more restrictive zoning ordinances with Comprehensive Plan is legislative judgment to be made by local governing body, subject only to limited judicial review for patent arbitrariness). The requirement of adopting a Comprehensive Plan was, therefore, only a small step. Moreover nothing in the legislation required local governments to comply with their own Comprehensive Plans or that all development be consistent with the Plan.

 

By the early 1980’s it was widely recognized that the 1975 Act was proving ineffectual in regulating Florida’s development. See Reid Ewing, Florida’s Growth Management Learning Curve, 19 VA. ENVT’L. L.J. 375 (2000). The lack of state control over interpretation of the Comprehensive Plan was often cited as a serious deficiency. As one such criticism described the situation:

 

 

“[f]rustration grew at the state level as well. Lacking the actual power to approve or disapprove local planning decisions, state and regional planners could not effectively coordinate and oversee local planning and regulation. Local governments changed their plans ‘willynilly virtually every time a city council or county commission met …’”

 

 

John M. DeGrove, State and Regional Planning and Regulatory Activity: The Florida Experience and Lessons for Other Jurisdictions, C390 ALI-ABA 397, 428 (1994).

 

For another thing, the 1975 Act was criticized for failing to give affected property owners and citizen groups standing to challenge the land development decisions of local governments on the grounds that they were inconsistent with the Comprehensive Plan. The standing issue was considered in Citizens Growth Management Coalition of West Palm Beach Inc. v. City of West Palm Beach, 450 So.2d 204 (Fla. 1984) (CGMC). CGMC involved a challenge by a citizens group to a local decision to allow the construction of a large scale residential and commercial complex. The court began by referring to Renard v. Dade County, 261 So.2d 832 (Fla.1972), holding that standing to challenge local development decisions was limited to the highly deferential “fairly debatable” standard. Affected property owners in the vicinity of new development had no standing to seek enforcement of local comprehensive plans unless they could “prove special damages different in kind from that suffered by the community as a whole.” 261 So.2d at 834. The CGMC court determined that the 1975 Act did not change these rules on standing. 450 So.2d at 208. The court reasoned that because the 1975 Act “did not specifically address the question” of standing, the statute was not meant to alter the common law standing requirements set forth in Renard. 450 So.2d at 206-07.

 

Again, to return to the criticism, this limitation on standing to enforce local planning laws resulted in:

 

 

“a failure to conform development decisions to the plan based upon the fact that citizens lacked standing to challenge development orders for lack of consistency with the comprehensive plan.”

 

 

James C. Nicholas & Ruth L. Steiner, Growth Management and Smart Growth in Florida, 35 WAKE FOREST L.REV. 645, 657 (2000)(quoting Daniel W. O’Connell, Growth Management in Florida: Will State and Local Governments Get Their Acts Together?, FLORIDA ENVT’L & URBAN ISSUES, 1-5 (June 1984)). If affected property owners in the area of newly permitted development could not challenge a project on the grounds that it would be inconsistent with the Comprehensive Plan, that eliminated the only real check on local government compliance—a challenge by those most directly affected by a proposed development.

 

The growing pressure for a fundamental change in the growth management law is reflected in the following statement made just prior to the Legislature’s adoption of the current law in 1985:

 

 

“In response to this lack of citizen standing, a citizen initiative began last year and thousands of signatures were collected around the state to bring the standing issue to a referendum vote. The petition specifically calls for a referendum on the issues of giving citizens a right in the state constitution to environmental health and welfare and providing them with legal standing to sue if government at the local, regional, or state level is not doing its job.

 

 

 

“That initiative fell just a few thousand signatures short of the required number for qualifying for a referendum in 1984. However, the initiative is continuing, and I feel confident that the issue will be brought to the voters of the state in 1985 unless the legislature addresses the issue more effectively than it did last year.”

 

 

Kathleen Shea Abrams, An Environmental Word, 1 J. LAND USE & ENVT’L LAW 155, 159 (1985). Clearly the pressure from a “civically militant electorate” was growing, and the elected representatives took notice of it. The result was the Growth Management Act of 1985. Chap. 85-55, Laws of Fla. This is essentially the statute we have today, parts of which have been cited in preceding paragraphs.12 Its most important provision for our purposes was section 163.3215, the provision used by Shidel to bring this action into court.

 

In Southwest Ranches, we observed that section 163.3215 had liberalized standing requirements and demonstrated “a clear legislative policy in favor of the enforcement of comprehensive plans by persons adversely affected by local action.” 502 So.2d at 935. In Parker v. Leon County, 627 So.2d 476, 480 (Fla.1993), the court held that “the legislature enacted section 163.3215 to ensure the standing for any person who ‘will suffer an adverse effect to an interest protected … by the … comprehensive plan.’” 627 So.2d at 479. The Parker court quoted with approval the above passage from Southwest Ranches. 627 So.2d at 479. See also Putnam County Envt’l Council, Inc. v. Board of County Comm’rs of Putnam County, 757 So.2d 590, 593 (Fla. 5th DCA 2000) (“That standard changed, however, with the 1985 adoption of section 163.3215, which liberalized the standing requirements and ‘demonstrat[ed] a clear legislative policy in favor of the enforcement of comprehensive plans by persons adversely affected by local action.’“). Thus, the criticism described above certainly was of great influence in the 1985 Legislature’s formulation of the new standing provision. Affected citizens have been given a significantly enhanced standing to challenge the consistency of development decisions with the Comprehensive Plan.

 

… .

 

Under section 163.3215 citizen enforcement is the primary tool for insuring consistency of development decisions with the Comprehensive Plan. Deference by the courts—especially of the kind argued by the developer in this case—would not only be inconsistent with the text and structure of the statute, but it would ignore the very reasons for adopting the legislation in the first place. When an affected property owner in the area of a newly allowed development brings a consistency challenge to a development order, a cause of action—as it were—for compliance with the Comprehensive Plan is presented to the court, in which the judge is required to pay deference only to the facts in the case and the applicable law. In light of the text of section 163.3215 and the foregoing history, we reject the developer’s contention that the trial court erred in failing to defer to the County’s interpretation of its own Comprehensive Plan.

 

Having thus decided that the trial court was correct in failing to accord any particular deference to the Martin County Commission in its interpretation of the Comprehensive Plan, we now proceed to consider the court’s determination on the consistency issue. The trial court explained its decision as follows:

 

 

“The primary claim by [plaintiffs] is that the juxtaposition of multi-story, multi-family apartments in Phase 10 directly next to the single family homes in Phase 1 violates a number of provisions in the Comprehensive Plan. The provision of the Comprehensive Plan that is central to their argument is section 4-5(A)(2)(b), known as the ‘tiering policy.’ [see n. 6, above]

 

 

 

“The tiering policy was added to the Comprehensive Plan … to address how development would be added to existing single-family residential communities. There was a concern … over how existing single-family homes were being impacted by new, adjacent denser developments….

 

 

 

“The tiering policy required … a transition zone along the southern portion of Phase 10 equal to ‘the depth of the first block of single-family lots’ within the northern portion of Phase 1. The section requires that development in the first tier of Phase 10 be limited to construction ‘of comparable density and compatible dwelling unit types.’ The court finds that the appropriate measure is 225 feet, using the shortest average depth method of computation.

 

 

 

“No transition zone was established for Phase 10. The buildings along the first tier of Phase 10 are multi-family, multi-story, and have balconies. The southern tier of Phase 10 has a density of 6.6[UPA]. The overall density of Phase 10 is 6.5[UPA]. There is no meaningful difference in density across the entire western portion of Phase 10. The northern tier of Phase 1, on the other hand, is comprised entirely of single-family homes on 0.75 acre to 1.2 acre lots, with a density of 0.94[UPA].13

 

 

 

“There was no first tier transition zone established for Phase 10 as mandated by section 4-5(A)(2)(b). That section is not the only provision of the Comprehensive Plan that mandated compatible structures within the first tier of Phase 10. Section 4-4(M)(1)(e)(2) provided:

 

 

 

… Where single family structures comprise the dominant structure type within [residential estate densities (RE-0.5A) ], new development on undeveloped abutting lands shall be required to include compatible structure types of lands immediately adjacent to existing family development.

 

 

 

… Phase 1 is designated RE-0.5A

 

 

 

 

 

 

“It is impossible … to examine the photographs of the homes in the northern tier of Phase 1, and the apartment buildings in the southern tier of Phase 10, and find that they are either ‘compatible dwelling unit types’ or ‘compatible structure types.’ The only residential structure that could be less compatible with the northern tier of Phase 1, would be a multi-story condominium building. There is no compatibility between the structures in the southern tier of Phase 10 and the northern tier of Phase 1. Further, an examination of the density of development in the two tiers at issue, precludes this court from finding that they are in any way comparable.

 

 

 

 

 

 

“[B]uffering does not grant relief to the [developer] under section 4-4(I)(5). That section deals with buffering between ‘incompatible land uses.’ The more specific Tiering Policy mandates compatibility. More importantly, even to the extent that the Comprehensive Plan might, in some instances, provide a builder with the ability to buffer changes in density, intensity or uses, the language of sections 4-4(M)(1)(e)(2) and 4-5(A)(2)(b) simply do not permit the type of development that is under construction in Phase 10.”

 

 

 

 

 

 

“Based on the foregoing, the Court finds that the Development Order is inconsistent with the Comprehensive Plan. It is not compatible with, nor does it further the objective, policies, land uses, densities and intensities in the Comprehensive Plan. § 163.3194(3)(a).” [e.o.]

 

 

We have carefully reviewed the record of the trial and the evidence presented. It is apparent that there is substantial competent evidence to support these findings. Developer argues that the court erred in its interpretation of the “tiering policy,” in deeming it a mandatory requirement rather than a discretionary guide. We conclude that the trial court’s construction is consistent with the plain meaning of the text of the Comprehensive Plan. See Comprehensive Plan, § 4-5(A)(2)(b) (“a density transition zone of comparable density and compatible dwelling unit types shall be established in the new project for a depth from the shared property line that is equivalent to the depth of the first tier of the adjoining development’s lower density (i.e. the depth of the first block of single-family lots).”). Moreover, given the evidence as to Martin County’s adoption of the tiering policy, the record clearly supports the finding that the policy was intended to be applied in all instances of projects abutting single-family residential areas. We therefore affirm the finding of inconsistency and proceed to explain our decision on the remedy.

 

 

 

 

II. Remedy of Demolition

 

 

 

 

Developer challenges what it terms the “enormity and extremity of the injunctive remedy imposed by the trial court.” It argues that the trial court’s order requiring the demolition of 5 multi-family residential buildings is the most radical remedy ever mandated by a Florida court because of an inconsistency with a Comprehensive Plan. Specifically, the contention is that the trial judge failed to balance the equities between the parties and thus ignored the evidence of a $3.3 million dollar loss the developer will suffer from the demolition of the buildings. The court failed to consider alternative remedies in damages, it argues, that would have adequately remedied any harm resulting from the construction of structures inconsistent with the Comprehensive Plan. Developer maintains that the trial court erroneously failed to give meaningful consideration to the traditional elements for the imposition of injunctive relief. It contends that the trial court proceeded on an erroneous conclusion that where an injunction is sought on the basis of a statutory violation, no proof is required as to the traditional elements for an injunction.

 

Traditionally, as the trial judge noted, it is true that injunctions are usually denied where the party seeking such relief fails to demonstrate a clear legal right, a particular harm for which there is no adequate remedy at law, and that considerations of the public interest would support the injunction. See, e.g., St Lucie County v. St. Lucie Village, 603 So.2d 1289, 1292 (Fla. 4th DCA 1992). These are, of course, the necessary ingredients for equitable relief when we labor in the interplay of common law and equity, where ordinary legal remedies are unavailing.

 

Nonetheless, as between the State legislature and the several counties, the Legislature is the dominant creator of public duties and citizen rights.14 Recognizing that the Legislature has the sole power to create such public duties and citizen rights, it logically follows that the Legislature is necessarily endowed with the authority to specify precisely what remedies shall be used by judges to enforce a statutory duty—regardless of whether in general usage such a remedy usually requires additional factors before it is traditionally employed.

 

When the Legislature creates a public duty and a corresponding right in its citizens to enforce the duty it has created, and provides explicitly that the remedy of vindication shall be an injunction, the Legislature has not thereby encroached on judicial powers, as the courts held in Harvey v. Wittenberg, 384 So.2d 940 (Fla. 3rd DCA 1980), and Times Publishing Co. v. Williams, 222 So.2d 470 (Fla. 2d DCA 1969). The Times Publishing court explained its theory of encroachment thus:

 

 

“Injunctive relief is an extraordinary remedy which issues only when justice requires and there is not adequate remedy at law, and when there is a real and imminent danger of irreparable injury. Statutory authority for such writs, as in the act before us, are not uncommon; but it must be remembered that such writs are in the first instance judicial writs. If such statutes purport to give the circuit courts injunctive power they are ineffectual, since those courts are otherwise vested with such powers under the constitution, § 6(3) Art. V Constitution of Florida; and if they purport to dictate to such courts when, how or under what conditions injunctions should issue they would constitute an unlawful legislative infringement on a judicial function.” [e.s.]

 

 

222 So.2d at 476. Times Publishing and Harvey both held that the Legislature is limited to specifying certain harms as irreparable, but the court alone has the discretion to determine whether the injunction should otherwise issue. We disagree with this analysis.

 

We think that is too wooden a construction of legislative powers where a statute is concededly valid. In our view when the Legislature provides for an injunction in these circumstances, it has deliberately made the new public duty and its corresponding right of enforcement an integrated statutory prescription. By specifying that the public interest requires that a certain duty be vindicated in the courts and not primarily within other branches of government, the Legislature is well within its powers. Surely the Legislature’s primary role in defining public policy under the constitution is broad enough to enable it to specify a legal remedy in an enactment, regardless of whether the traditional judicial restrictions on that remedy in other, non-statutory contexts would limit its usage. As the author of the primary duty, the Legislature alone shapes the form of its effectuating mechanism.

 

In section 163.3215, we think the Legislature has constructed such a statute. The statute leads off with a declaration that:

 

 

“Any aggrieved or adversely affected party may maintain an action for injunctive or other relief against any local government to prevent such local government from taking any action on a development order, as defined in s. 163.3164, which materially alters the use or density or intensity of use on a particular piece of property that is not consistent with the comprehensive plan adopted under this part.”

 

 

From the plain and obvious meaning of this text we discern only two elements to the granting of an injunction against the enforcement of a development order: (a) the party is affected or aggrieved by (b) an approved project that is inconsistent with the Comprehensive Plan. In short, the existence of an affected neighbor is all that is necessary for the issuance of an injunction against a proposed land use that is inconsistent with the Comprehensive Plan.

 

We note that the statute does not say that the affected/aggrieved party bringing the action “creates a presumption of irreparable injury” by showing an inconsistency with the Plan. See, e.g., § 542.335(1)(j), Fla. Stat. (2000) (“The violation of an enforceable restrictive covenant creates a presumption of irreparable injury to the person seeking enforcement of a restrictive covenant.”). When the Legislature wants to make a lesser intrusion on traditional equitable jurisdiction, it obviously knows how to do so. Here the statutory text makes the injunction the first and preferred remedy to alleviate the affects of in inconsistent land use. Hence, we read the statute to make the injunction the presumed remedy where the conditions prescribed are shown.15

 

We disagree with the developer’s contention that this statute was meant to create mere discretion in the court to issue an injunction. If injunctive relief is the specified, primary remedy to correct a violation of a public duty and to vindicate the right of a person affected by the violation of that duty, it can properly be deemed a rule that the Legislature has created, not a grant of discretion. Here the Legislature has devised an entire statutory scheme to insure that all counties have a Comprehensive Plan for the development of land within their respective jurisdictions. The scheme creates mandatory duties to have a plan, mandatory duties to have the plan approved by the state, and once approved mandatory duties to limit all developments so that they are consistent with the plan’s requirements. At the end of all these mandatory duties—all these shalls—comes a new relaxation of the requirements on standing for citizen suits to enforce comprehensive land use plans and providing for the issuance of injunctions when an inconsistency affects another land owner. Judicial construction of that sole remedy as discretionary strikes us as remarkably inconsistent with not only the text of the statute itself but also with the purpose of the entire legislative scheme.

 

Developer lays great stress on the size of the monetary loss that it claims it will suffer from demolition, as opposed to the much smaller diminution in value that the affected property owner bringing this action may have suffered. It contends that a $3.3 million loss far outweighs the evidence of diminution in the value of Shidel’s property, less than $26,000. Its primary contention here is that the trial judge erred in failing to weigh these equities in its favor and deny any remedy of demolition. Instead, as developer sees it, the court should have awarded money damages to eliminate the objector’s diminution in value. Developer argued that it should be allowed instead of demolition it should also be allowed to build environmental barriers, green areas of trees and shrubbery, between the apartment buildings and the adjoining area of single family homes.

 

Developer emphasizes that we deal here with an expensive development: “a high quality, upscale project;” “forty units of high-quality garden apartments;” “five upscale multi-family dwellings, housing 40 garden apartments, at a value of approximately $3 million.” Developer concedes that there is evidence showing that plaintiff Shidel’s property is diminished by $26,000. It also concedes that the total diminution for all the homes bordering its project is just under $300,000. Developer contends, however, that the real countervailing harm to all these affected property owners in the vicinity is not any diminution in the value of their homes, but instead is merely “knowing that there is an upscale apartment building approximately a football field away, partially visible through some trees behind the house.”

 

Section 163.3215 says nothing about weighing these specific equities before granting an injunction. If the Legislature had intended that injunctive enforcement of comprehensive plans in the courts be limited to cases where such imbalances of equities were not present, we assume that it would have said so. As important, such balancing if applied generally would lead to substantial non-compliance with comprehensive plans. We doubt that there will be many instances where the cost of the newly allowed construction will be less than any diminution resulting from an inconsistency. Entire projects of the kind permitted here will frequently far exceed the monetary harms caused to individual neighbors affected by the inconsistency. In other words, if balancing the equities—that is, weighing the loss suffered by the developer against the diminution in value of the objecting party—were required before demolition could be ordered, then demolition will never be ordered.

 

Moreover it is an argument that would allow those with financial resources to buy their way out of compliance with comprehensive plans. In all cases where the proposed use is for multiple acres and multiple buildings, the expenditures will be great. The greater will be its cost, and so will be a resulting loss from an after-the-fact demolition order. The more costly and elaborate the project, the greater will be the “imbalance in the equities.” The more a developer is able to gild an inconsistency with nature’s ornaments—trees, plants, flowers and their symbiotic fauna— the more certain under this argument will be the result that no court will enjoin an inconsistency and require its removal if already built.

 

In this case the alleged inequity could have been entirely avoided if developer had simply awaited the exhaustion of all legal remedies before undertaking construction. It is therefore difficult to perceive from the record any great inequity in requiring demolition. Shidel let the developer know when it was just beginning construction of the first building that she would seek demolition if the court found the project inconsistent. When developer decided to proceed with construction in spite of the absence of a final decision as to the merits of the challenge under section 163.3215, the developer was quite able to foresee that it might lose the action in court. It could not have had a reasonable expectation that its right to build what it had proposed was finally settled. It may have thought the decision to build before the consistency question was settled in court a reasonable “business decision,” but that hardly makes it inequitable to enforce the rule as written.

 

It also seems quite inappropriate, if balancing of equities were truly required by this statute, to focus on the relatively small financial impacts suffered by those adjoining an inconsistent land use. The real countervailing equity to any monetary loss of the developer is in the flouting of the legal requirements of the Comprehensive Plan. Every citizen in the community is intangibly harmed by a failure to comply with the Comprehensive Plan, even those whose properties may not have been directly diminished in value.

 

We claim to be a society of laws, not of individual eccentricities in attempting to evade the rule of law. A society of law must respect law, not its evasion. If the rule of law requires land uses to meet specific standards, then allowing those who develop land to escape its requirements by spending a project out of compliance would make the standards of growth management of little real consequence. It would allow developers such as this one to build in defiance of the limits and then escape compliance by making the cost of correction too high. That would render section 163.3215 meaningless and ineffectual.

 

In this regard we are drawn to the views expressed in Welton v. 40 Oak Street Building. Corp., 70 F.2d 377 (7th Cir. 1934), a case of strikingly analogous facts. There the developer applied for a permit to erect a building, and proceeded to build while its neighbor objected to the edifice and sought to show that the building plans did not comply with the zoning ordinances. When the agency approved the building he sought relief in the courts, finally being victorious in the state supreme court. Ownership of the building meanwhile passed to a federal receiver, and so the objecting neighbor sought to enforce his remedy by injunctive relief in the federal court. The trial judge denied an injunction. On appeal the Court of Appeals disagreed and ordered a mandatory injunction to “rebuild” the edifice in compliance with the zoning law, explaining:

 

 

“We have earnestly endeavored to place ourselves in a position to fully appreciate appellees’ argument to the effect that enforcement of a right which arises out of an effort to give light and air to metropolitan areas is an equity that is outweighed by the dollars advanced by builders of twenty story buildings in defiance of zoning ordinances. We have also endeavored to obtain appellees’ viewpoint when they propose a money judgment to one who suffers small financial loss as satisfaction for violation of important ordinances enacted for the benefit of the public. In the fight for better living conditions in large cities, in the contest for more light and air, more health and comfort, the scales are not well balanced if dividends to the individuals outweigh health and happiness to the community. Financial relief to appellants is not the only factor in weighing equities. There is involved that immeasurable but nevertheless vital element of respect for, and compliance with, the health ordinance of the city. The surest way to stop the erection of high buildings in defiance of zoning ordinances is to remove all possibility of gain to those who build illegally. Prevention will never be accomplished by compromise after the building is erected, or through payment of a small money judgment to some individual whose financial loss is an inconsequential item.”

 

 

70 F.2d at 382-83. We agree with the Seventh Circuit that respect for law, in this case the Comprehensive Plan, trumps any “inequity” of financial loss arising from demolition.

 

Our understanding of section 163.3215 is thus different from equity’s traditional use of its remedies. If, as we have shown, an injunction is the statutory remedy to insure consistency of development of property within the county, it does not seem to us that the kind of balancing advocated here would further that goal. In fact it would very likely lead to even more inconsistent development, particularly as to the kind of large scale project involved here with multiple buildings for multiple families. As we see it, the purpose of this statute is precisely against this kind of thinking. A clear rule is far more likely to erase the kind of legal unpredictability lamented by developer and amici.

 

The statute says that an affected or aggrieved party may bring an action to enjoin an inconsistent development allowed by the County under its Comprehensive Plan. The statutory rule is that if you build it, and in court it later proves inconsistent, it will have to come down. The court’s injunction enforces the statutory scheme as written. The County has been ordered to comply with its own Comprehensive Plan and restrained from allowing inconsistent development; and the developer has been found to have built an inconsistent land use and has been ordered to remove it. The rule of law has prevailed.

 

We therefore affirm the final judgment of the trial court in all respects.

 

Gunther and Gross, JJ., concur.

 


FOOTNOTES

    1. Originally the developer was Pinecrest Lakes, Inc., the entity which planned and built Phases One through Ten. In 1997, when we reversed the first appeal in this case for a trial de novo, the corporation transferred title to Phase Ten to a limited partnership known as The Villas at Pinecrest Lakes. The trial court substituted the limited partnership for the corporation as the developer. Consequently, when we use the term “developer” in this opinion, we refer either to the corporation or the limited partnership or both as the context requires.

 

    1. See § 163.3167(2), Fla. Stat. (2000) (“Each local government shall prepare a comprehensive plan of the type and in the manner set out in this act or shall prepare amendments to its existing comprehensive plan to conform it to the requirements of this part in the manner set out in this part.”).

 

    1. See § 163.3164(7) and (8), Fla. Stat. (2000) (“‘Development permit’ includes any building permit, zoning permit, subdivision approval, rezoning, certification, special exception, variance, or any other official action of local government having the effect of permitting the development of land…. ‘Development order’ means any order granting, denying, or granting with conditions an application for a development permit.”).

 

    1. See § 163.3215(4), Fla. Stat. (2000) (“As a condition precedent to the institution of an action pursuant to this section, the complaining party shall first file a verified complaint with the local government whose actions are complained of, setting forth the facts upon which the complaint is based and the relief sought by the complaining party. The verified complaint shall be filed no later than 30 days after the alleged inconsistent action has been taken. The local government receiving the complaint shall respond within 30 days after receipt of the complaint. Thereafter, the complaining party may institute the action authorized in this section. However, the action shall be instituted no later than 30 days after the expiration of the 30-day period which the local government has to take appropriate action.”).

 

    1. See § 163.3215(1), Fla. Stat. (1995) (“Any aggrieved or adversely affected party may maintain an action for injunctive or other relief against any local government to prevent such local government from taking any action on a development order … which materially alters the use or density or intensity of use on a particular piece of property that is not consistent with the comprehensive plan adopted under this part.”).

 

    1. We express no view on the propriety of Martin County issuing building permits while the case was pending in court.

 

    1. The original judge assigned to the case was rotated into another division, so the case was assigned to a new judge.

 

    1. “A project immediately adjacent to lands used or designated for lower intensity use should be given lesser density. (1) For that portion of said project abutting the existing development or area of lesser density, a density transition zone of comparable density and compatible dwelling unit types shall be established [e.s.] in the new project for a depth from the shared property line that is equivalent to the depth of the first tier of the adjoining development’s lower density (i.e. the depth of the first block of single-family lots).” Comprehensive Plan, § 4-5(A)(2)(b).

 

    1. Neither Charles Brooks nor Martin County has appealed the final judgment, or filed a brief in this appeal by Karen Shidel.

 

    1. To illustrate the point, we draw an analogy. The action by a county approving a development order could fairly and logically be compared to the actions of administrative agencies generally. Thus we might contrast section 163.3215(1) with comparable provisions of the Administrative Procedures Act. Section 120.68 generally grants parties in agency proceedings access to a court after the agency has finally acted. Section 120.68(4), however, limits review to the record in agency. There is no similar provision in section 163.3215. Moreover section 120.68(7) spells out in precise detail exactly what the reviewing court can do. Among its provisions is the following:

       

      “The court shall remand a case to the agency for further proceedings consistent with the court’s decision or set aside agency action, as appropriate, when it finds that … (b) The agency’s action depends on any finding of fact that is not supported by competent, substantial evidence in the record of a hearing conducted pursuant to ss. 120.569 and 120.57; however, the court shall not substitute its judgment for that of the agency as to the weight of the evidence on any disputed finding of fact … (e) the agency’s exercise of discretion was: 1. outside the range of discretion delegated to the agency by law; 2. inconsistent with agency rule; 3. inconsistent with officially stated agency policy or a prior agency practice, if deviation therefrom is not explained by the agency; or 4. otherwise in violation of a constitutional or statutory provision; but the court shall not substitute its judgment for that of the agency on an issue of discretion.” [e.s.]

       

      § 120.68(7), Fla. Stat. (2000). There is nothing even remotely comparable in section 163.3215.

 

    1. See § 163.3194(1)(a), Fla. Stat. (2000) (“After a comprehensive plan…has been adopted in conformity with this act, all development undertaken by, and all actions taken in regard to development orders by, governmental agencies in regard to land covered by such plan or element shall be consistent with such plan or element as adopted.”). [e.s.]

 

    1. See supra notes 2, 3, 4 and 5 and accompanying text.

 

    1. At this point in the Final Judgment, the court went on to show in a comparative table that the change in density between the two tiers represented a 560% difference, the change in population a 492% difference, and the number of units a 418% difference.

 

    1. See Art. VIII, § 1(f) and (g), Fla. Const. (whether charter or non-charter government, Counties are granted power to enact only ordinances that are “not inconsistent with general law”).

 

    1. We reject developer’s argument that demolition is improper simply because Shidel failed to seek a temporary injunction against any construction while the case proceeded in court on the consistency issue. In the first place, when the action was filed the trial court originally thought its role limited to a record review of the proceedings before the Martin County Commission and concluded that no error had been shown. Having decided there was no error in the limited review it thought applicable, the trial court was hardly likely to grant a temporary injunction while the case was on appeal.

       

      Even more important, however, we find nothing in the text of the relevant statutes making such a request for a temporary injunction a precondition to effective final relief after a trial de novo when the court finds that the permitted use is inconsistent with the Comprehensive Plan. We note from other statutes that when the Legislature means to place restrictions on third party challenges to agency decisions granting permits, it says so in specific text. Compare § 403.412(2)(c), Fla. Stat. (2000), with § 163.3215(4), Fla. Stat. (2000), as to preconditions for suit; see also § 163.3215(6), Fla. Stat. (2000) (“The signature of an attorney or party constitutes a certificate that he or she has read the pleading, motion, or other paper and that, to the best of his or her knowledge, information, and belief formed after reasonable inquiry, it is not interposed for any improper purpose, such as to harass or to cause unnecessary delay or for economic advantage, competitive reasons or frivolous purposes or needless increase in the cost of litigation. If a pleading, motion, or other paper is signed in violation of these requirements, the court, upon motion or its own initiative, shall impose upon the person who signed it, a represented party, or both, an appropriate sanction, which may include an order to pay to the other party or parties the amount of reasonable expenses incurred because of the filing of the pleading, motion, or other paper, including a reasonable attorney’s fee.”).

 

 

 

 

 

NOTE

 

 

 

As the above cases demonstrate, states vary widely in whether and they require comprehensive planning at all and in the degree of consistency required between plans and later-enacted land use ordinances. Some require comprehensive planning outright. Some do not. And some provide funding incentives.

 

For example, in Georgia local governments are not required to have a comprehensive plan, but they gain access to various grants if they do. The Department of Community Affairs has been given by authority to develop “Minimum Standards” for qualifying comprehensive plans. Its regulations require three components: a community assessment, a community participation program, and a community agenda. These components are basically as they sound. The first is a local inventory and includes development maps and evaluations of current policies. The second is a plan to engage the community in the planning process. Only after the Department has approved a local government’s first two components may it proceed to the community agenda, which is the “plan” part of the comprehensive plan. It takes the form of a map showing future development and an implementation program. The plan for Athens-Clarke County is available at http://athensclarkecounty.com/index.aspx?NID=848.

 

California requires counties and cities to adopt general plans meeting minimum standards and addressing seven required elements: Land Use, Circulation, Housing, Conservation, Open Space, Noise, and Safety. Courts do not probe the merits of a local government’s plan, but they will ensure “substantial compliance.” See, e.g., Twaine Harte Homeowners Association v. County of Tuolumne, 138 Cal. App. 3d 664 (1982). California, like Florida, invalidates zoning inconsistent with the general plan. Simply skimming the General Plan Guidelines issues by the Governor’s Office of Planning and Research (available at http://opr.ca.gov/docs/General_Plan_Guidelines_2003.pdf) will give a good sense of the planning process.

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