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RE: SG-W:/ lawsuits and zoning

Excellent contribution Phil, I think we need to be pragmatic as well as
creative when we look for solutions to the challenge of how we chose to live
on the land.  As I am not King, and my personal dictates on how to and how
not to develop are rather ineffective, I would like to offer in a few
additional thoughts about working within our current framework.

The cornerstones of our existing land use tools, zoning and master planning,
have their roots in protecting property rights.  The notion is quite simple;
extend the rights of individuals to the point where they begin to negatively
affect the rights of others.  No one wants to be told what he or she can do
with his or her property, but then who want to have a toxic landfill placed
next door to their home?  We regulate to protect property values, as well as
the health, safety and welfare of the people.

Our understanding of how activities of one individual affect the life of
others is constantly changing.  For example, building in the flood plane
negatively impacts, landowners up stream, down stream, and may enlarge the
flood plane so that includes property previously safe from flooding.  It
also increases the public tax liability for disaster relief.  It seems
obvious, and defensible, that the rights of one property owner should be
curtailed for the greater good.  But there are consequences of such a
decision.  If a community changes its regulations, case law has deemed it
appropriate to compensate a landowner who has made an actual investment in
the future development of a property based on a previous set of regulatory
circumstances (pardon the over simplification).

So how do we apply this principal to the growth issue?  I chose to live
close to town and work because it reflects my values and how I foresee the
future economic picture.  Based on my choice, I have the responsibility to
pay taxes to support the services deemed desirable and necessary for my
community.  Other's values may differ and they may choose to build a new
home in the country.  I cannot see imposing my value set on theirs, but they
also have responsibilities that follow their choices.  Will that development
and its new residents pay for the infrastructure necessary to support it
(roads, water, electrical, schools, waste disposal, fire and police
protection, etc.) in a manner that addresses public health, safety and
welfare concerns?  Will that development negatively impact the property
values of or increase the taxes on any existing developments (This is open
to a great deal of subjectivity especially regarding transportation impacts
and pollution)?  If they meet these criteria and are done according to a
well-reasoned plan, I cannot see withholding approval of property
development based on our current governmental situation.  If there is
something that I personally value about their property in an undeveloped
state then personally, or collectively, I should find a way to secure that
property and compensate the landowner.

The difficulty, is that a piece meal approach to project approval, where
development is evaluated only on a site-specific basis, often ends up in a
completely unsatisfactory community that few are fond of.  We only have to
look at the quality of life, and loss in property values in some of the
immediate ring suburbs of Detroit to see the potential outcome.  Thus, the
importance of developing a compressive plan such as Phil alluded to is
paramount.  It also somewhat negates a developer challenging the
exclusiveness of one unit of government's development options.

We also need to respect the developer; do we not all live in some
"development" or another?  They take a substantial financial risk with every
development, and thus tend to be rather conservative.  So, if we are going
to ask a developer to try some of the newer conservation development
techniques we should make sure they are competing on a level field.  Again,
this leans towards a coordinated planning and zoning approach.

In summary, and my apologies for the length of this post, we need to
recognize and work within our current zoning, case law, property rights, and
government framework as we search for the solution.  But I believe that a
compromise can be met that allows for a healthy social, physical, and
economic environment.

- Norm
Norman D. Cox, ASLA
The Greenway Collaborative, Inc.
150 South Fifth Avenue
Ann Arbor, MI  48104-1911
Phone: 734-668-8848  Fax: 734-668-8820
E-mail: normancox@greenwaycollab.com
Website: http://www.greenwaycollab.com/

-----Original Message-----
From: owner-smartgrowth-washtenaw@great-lakes.net
[mailto:owner-smartgrowth-washtenaw@great-lakes.net]On Behalf Of Phil
Sent: Wednesday, September 22, 1999 11:06 AM
To: jeffsurfus@email.msn.com; smartgrowth-washtenaw@great-lakes.net
Subject: 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

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

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 priori!
ty 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

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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