Mon 26 Jan, 2009
Case Summary – Rezoning
Comments (0) Filed under: General, Law, ZoningTags: Penn Central, Regulatory Takings
Justice William J. Brennan, U.S. Supreme Court
To be effective, professional planners must stay up-to-date on the twists and turns of case law involving planning, zoning, and land development litigation. Fortunately, we Michigan planners have several excellent resources available, including Kurt Schindler at MSU-Extension and Mark Wyckoff‘s Planning and Zoning News.
Our first case summary for the Building Place Notebook is offered below courtesy of Mr. Schindler. This rezoning case caught my attention because I happened to be there for part of it (early in my career as an entry-level staff planner). Also, the “Penn Central” test described below is from a “landmark” U.S. Supreme Court case involving regulatory takings, which frequently appears on the American Planning Association‘s AICP certification exam (please pardon the obscure pun)….
The developer, Mr Jarvis, had previously constructed a large and quite successful self-storage warehouse business on the rear of his industrial-zoned parcel. He requested to rezone the road frontage to a business zone to construct a strip center commercial development. His request did not conform to the recently-updated township master plan, and was eventually denied by the Twp. Board in early 2002.
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Legislative Action Alert:
That this case did not reach its conclusion in the Michigan Court of Appeals for nearly seven more years is a testament to the debilitating cost of land use litigation.
One way to reduce the overwhelming financial burden on local governments who seek to defend their land use decisions would be for our state legislature to establish a state “land use board of appeals” similar to Oregon’s LUBA, the first in the nation established nearly twenty years ago. Disputes that currently fall into the circuit court system would instead come before the LUBA, which would:
1. simplify the appeal process for all parties;
2. speed resolution of land use disputes;
3. provide more consistent interpretation of state and local land use laws; and
4. reduce cost when compared to litigation.
More information about Oregon’s system can be found here.
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Court: Michigan Court of Appeals (Unpublished No. 279225, November 25, 2008)
Case Name: Jarvis Assoc. LLC v. Charter Twp. of Ypsilanti
“The trial court properly applied the general rule a person’s property should be considered as a whole in determining whether there has been a regulatory taking and in including all of Jarvis Assoc. LLC-plaintiff’s property as the denominator parcel in its takings analysis, and dismissed the plaintiff’s regulatory takings claim.
Plaintiff sought to have its property rezoned from its light industrial zoning classification to a general business classification. Plaintiff argued, inter alia, the township’s refusal to rezone the property constituted a compensable “regulatory” taking of its property. The case involved not a “categorical” taking, but a regulatory taking requiring application of the [three-part] balancing test articulated in Penn Cent. Transp. Co. v. New York City:
[1.] The first element in Penn Central is the character of the government’s action. The nature of the government action in this case, which involved application of a zoning regulation and not a physical invasion by the government, mitigated against a finding of a compensable taking.
[2.] Regarding the second element of the Penn Central balancing test, the economic effect of the regulation on the property, the trial court correctly concluded although defendant’s denial of plaintiff’s rezoning request resulted in a significant diminution in value of the property, mere diminution in value did not constitute a taking.
[3.] Regarding the third element in Penn Central, based on plaintiff’s knowledge of the zoning of the property as light industrial, it was not reasonable for plaintiff to plan to use the property for commercial uses. Thus, the effect of Charter Township of Ypsilanti-defendant’s denial of plaintiff’s request for rezoning on its reasonable, investment-backed expectations weighed against the conclusion a compensable taking occurred.
The appeals court also held the trial court properly dismissed plaintiff’s substantive due process claim. Affirmed.”
Source: State Bar of Michigan e-Journal Number: 41155, December 10, 2008. The full text of the opinion can be found here.