Wa Bar Property - Zoning

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Zoning

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"zoning is a justified exercise of constitutional police power & the state enabling acts, carried out by various entities in city and county governments; local, so not governed by APA"

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Planning

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GMA requiring large & fast-growing counties to adopt a comprehensive plan which does not determine the legal use of any particular parcel) v. zoning (ordinances in general conformance with comprehensive plan)

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Classifications

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HUB - Height, Use Bulk

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Constitutional Limitations on Zoning

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• Substantive due process, takings, equal protection, procedural due process, appearance of fairness

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Rezoning

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• particular parties are granted a change in zoning classification; must be a change of conditions justifying the rezone, quasijudicial i.e. PDP, better chance of being upheld if consistent w/comprehensive plan)

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Contract/Conditional Rezoning

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Application for rezone granted with certain conditions which must be
• directly related to public needs,
• performance will mitigate public burden of meeting those needs,
• and no relinquishment of discretionary zoning power by the gov body)

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Planed Unit Developments

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Development with a mixture of densities and uses, modifications to the zoning laws are allowed in return for the PUD providing certain amenities, floating zone that can only be fixed in place and authorized by legislative action.

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Special/Conditional Use Permits

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Required for certain sensitive uses which do not violate zoning ordinances but which are not desirable in all locations and circumstances; granted by local zoning body in a quasijudicial action (PDP) usually with numerous conditions
• Conditions must be directly related to the proposed use, reasonable, not a legal or inconsistent with the zoning ordinance, and reasonably calculated to achieve a legitimate zoning objective.

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Variances

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Permission to violate zoning ordinance in some way;
• unique circumstances,
• undue hardship or practical difficulties, hardship not self-inflicted,
• grant not injurious to the public;
• quasijudicial i.e. PDP)

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Vested Right

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Vested right to use the property under the zoning regulations in effect at the time the application was submitted i.e. no reliance or good faith necessary; permit may still be denied on other bases & no vested right for a permit issued by mistake or in violation of the law)

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Estoppel for zoning

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Statement, admission or act by govt reasonably relied upon & injury would result upon repudiation)

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Noncomforming use

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Allowed to remain, but often subject to restrictions e.g.
• prohibiting alterations or repairs,
• can't enlarge (intensification ok), change, or extend,
• abandons nonconforming use may not be taken up again,
• uses terminating within a specific time must have a reasonable amortization period to avoid a taking)

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Burden of proof in land use challange

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• Legislative Zoning (presumed valid, burden on challenger, only overturned if abuse of discretion involving arbitrary conduct in disregard of facts)
• Quasi-Judicial Zoning (not presumed valid & burden on government, courts will apply the arbitrary and capricious standard)

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Defenses to Zoning challanges

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Laches
• Knew of condition, unreasonably delayed, delay damaged defendant
Exhaustion of remedies
• Must exhaust available remedies unless futile.
Standing
• Area residents & nonprofits w/injured member may challenge
SOL
• Varies by jurisdiction, strictly enforced

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Subdivision

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• Regular subdivision (5+ parcels, requires government approval)
• Short subdivision (4- parcels with quicker approval, SEPA does not apply, GMA requires written findings before approval, vested right to subdivide for five years after approval unless doing so would raise a serious threat to public health or safety)

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State Environmental Policy Act

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EIS whenever local govt undertakes a major action that significantly affects the environment
• Family residences of 4- units of less than 4000 ft.² are exempt
• Regulations overlay zoning ordinances
• Local govt may use to approve, deny, or impose conditions on the project to protect environment

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Shoreline Management Act

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Permit required for substantial development on a shoreline i.e. within 200 feet of the high water mark of any lake, river, or ocean
• Exemption for single-family residences & projects less than $5,000
• Issued by local governments but ordinances must be consistent with state master program

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Growth Managment Act

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Largest & fastest-growing counties must adopt a comprehensive plan coordinated with adjacent counties with regulations to protect agricultural, forest, and mineral lands and critical areas
• Intended to eliminate urban sprawl

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Question if use doesn't fit zone

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(1) was rezone proper (i.e. not a spot zone, change circumstances.
(2) Noncomforming use (restrictions
(3) Variance
(4) Contract Rezone (look for exaction)