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Re: SG-W:/ lawsuits and zoning



In the spirit of brainstorming, not because I claim to know definitive answers, here are some thoughts:

1) Private property rights are highly revered under the U.S. Constitution.  Generally speaking, under the law, it is not the government's place to dictate to private landowners what they can do with their property.

2) In the early part of this century, however, the Supreme Court ruled that zoning is a legitimate governmental function, insofar as it protects health and safety, promotes the orderly development of land, etc.  In the wake of this ruling, the U.S. Congress and state legislatures passed model zoning ordinances for local governments to adopt.  This was before urban sprawl, when the main concern was economic growth and preventing nuisances (e.g., locating a slaughtering house in a neighborhood.)

3) As the law has evolved over the years, it has come to pass that local governments are held to a very high standard by the courts when they want to restrict a property owner's desires.  From the courts' point of view, a government can't forbid a landowner from doing certain things (like building a subdivision) simply because a majority of people would prefer a different use.

4) The courts are more likely to side with government where there is a reasonable, coherent plan in place, one that is reflected in actual zoning and permitted land uses, one that is not exclusionary toward any one kind of  development, one that clearly reflects goals that have been stated ahead of time, rather than retroactively in response to a specific proposed development.

If my understanding is correct, then it would seem townships have good reason for wanting to avoid lawsuits, because in most circumstances, the deck is stacked in favor of developers.  Unfortunately, zoning is not the end of the question--far from it.  Only after that zoning has survived a court challenge--and it had better be strong zoning in order to do so--is it really effective.

What can we do?  First, better planning that is more likely to survive a court challenge.  What if we had a single county-wide master plan that invited appropriate development in certain places and protected open space in others, one that was reflected, in turn, in the various township plans?  It would take a long and difficult process to accomplish this, but it would offer the opporutnity to do two important things 1) create an effective weapon against sprawl and 2) have a community-wide converstation about appropriate land use proactively, as opposed to simply raising a fuss about specific projects after it's already too late.  There are other things to do beyond the local level, like update the state planning and zoning laws to reflect today's priorities, but in the absence of this, coordinated planning on the local level makes a lot of sense.  With the County Board currenlty considering a budget for the next two years, now is an excellent time to make sure this is a priority for them and the County Planning Commission.

Again, this is a layman's understanding, and I assume more knowledgable planners, lawyers or activists will pipe up where necessary.  Hope this helps move the conversation along.

>>> "Jeff Surfus" <jeffsurfus@email.msn.com> 09/22/99 09:36AM >>>
There is a very disturbing thing happening in our county and I sure would
like to see some brainstorming here about what to do about it.

Township governments have been very hesitant to stand up to developers and
big land owners because of the fear of lawsuits.  As Erica has said, there
is a farmer in her township threatening legal action if the township doesn't
rezone his property so he can sell it to a developer (Am I getting it right
Erica?).  In Sharon Township, the Board refused to rezone an agricultural
parcel so that a developer could bring in a large mobile home development.
Last week, he filed suit against the township.

My questions are:

What's the point of having a zoning code at all if someone can come into the
courts and challenge the zoning?

Is it considered a taking if the zoning change isn't approved?  Will a
township have to compensate the landowner?

What can we do to support these townships in there efforts to do the right
thing?

I think these questions get to the heart of the problem for many of the
townships in our county.

Any answers?

Jeff Surfus





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===============================================================
smartgrowth-washtenaw:  Internet List and Forum for issues relating to
sprawl, smart growth, and preservation of the quality of life in Washtenaw
County.

Postings to:  smartgrowth-washtenaw@great-lakes.net      For info, send
email to majordomo@great-lakes.net  with a one-line message body of  "info
smartgrowth-washtenaw"
===============================================================