Pl i & L d Planning & Land Use Law in MissouriUse Law in Missouri

Eastern Jackson County Planning CommissionersTraining Series 2011

Mark White | White & Smith LLCMark White | White & Smith, LLC230 SW Main Street, Suite 209Lee’s Summit, MO 64063816 221 8700 (phone)816.221.8700 (phone)mwhite@planningandlaw.comwww.planningandlaw.com

Planning & Land Use LawCComprehensive Plan

Authority Delegation Preemption

CConstitutional issues Due process Takings Takings Equal Protection

NonconformitiesNonconformities

A th itAuthority

Authority Creature Concept

Dillon’s Rule Land Use Authority Broad Police Powers

Home Rule Preemption

Adoption

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Popular Vote √ √ √ √ √ Zoning / Planning Commission

√* Governing Body / Citizens √ * Governing Body / Highway Engineer / Citizens

√ √

* Highway Engineer / Citizens √ √ * Highway Engineer / Citizens √ √ * Governing Body / Citizens √ Commission referral – original adoption √ √ √ √ √ √ Commission referral – amendment √ √ √ √ √Public hearing for change of use √ √ √

Standard Zoning Enabling Acti d i h “in accordance with

a comprehensive plan”plan

“comprehensive plan” not definedplan not defined

Standard Planning Enabling Actbli i Public improvements

Official mapping Planning

Commission approves public approves public facilities

Rarely litigated Rarely litigated

Comprehensive lPlan

Role of PlanC i i

"The [comprehensive] plan is atop the hierarchy of local

l l i Constitution community vision fundamental land use

government law regulating land-use. It has been amply analogized to 'a constitution for all future development'.

fundamental land use policies

Findings

Concerned Citizens of Calaveras County, 166 Cal. App. 3d 90, 212 Cal. Rptr. 273, 276-77 (Cal. App. 3 Dist. 1985) (citing O'Loane v.

information legislative findings

E h l l b i

O'Rourke, 231 Cal. App. 2d 774, 42 Cal. Rptr. 283 (1965); Machado v. Musgrove, 519 So.2d 629, 632 (Fla.App. 1987), rev. denied, 529 So.2d 694 (Fla. 1988); Lesher

Enhances legal basis for land use decisions

So.2d 694 (Fla. 1988); LesherCommunications, Inc. v. City of Walnut Creek, 802 P.2d 317 (Cal. 1990).

Consistency

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Pinecrest Lakes, Inc. v. Shidel, 795 So.2d 191 (Fla. Dist. Ct. App. 2001)

Missouri Consistency No mandatory consistency

* plan language controls!! Unitary view Rationalityy Uniformity Zoning cannot modify or amend plan Zoning cannot modify or amend plan

City of St. Charles v. Devault C y S CManagement (Mo.App. 1997)

C d i Condemnation case Tax Increment Financing (TIF plan) Inconsistent land use designations (residential

v. commercial)Held: condemnation order denied Held: condemnation order denied Burden of proof: fairly debatable rule TIF statute requires full, not substantial, plan TIF statute requires full, not substantial, plan

consistency Strict construction of eminent domain statutes

Consistency is function of specific statute and exercise of powers

Animal Shelter League v Christian Animal Shelter League v. Christian County (Mo.App. 1999)

Permit system Upholds determination that proposed

use was not consistent with plan (negative score) Hearsay admitted w/o objection Presumption favoring Board decision Court deference to local political process

Plans strengthen legality, if not the legitimacy, of local land use decisions

Zoning

Permitted v. Conditional Usesi d i di Designated in ordinance

Administrative v. ministerial CUP/SUP administrative even where

governing body approves permits

Use v. Building Form

Roof

Garage

Driveway

Front Entrance

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Use v. Building FormAllAlley

Roof

Entrance

Walkway

Spot ZoningM h ll S lt L k Cit (Ut h 1943) Marshall v. Salt Lake City (Utah 1943) Residential “C” district created small “utility zones” for

neighborhood conveniences Spot zoning challenge rejected:

“Here the general zoning plan of the city set within a reasonable walking distance of all homes in Residential ‘A’ districts the possibilities of such homes securing daily family conveniences and necessities, such as groceries drugs, and gasoline for the family car, with fee air for the tires and water for the radiator so the wife and the tires and water for the radiator, so the wife and mother can maintain in harmonious operation the family home, without calling Dad from his work to run errands.”

Transect-based zoning(RSMo § 89 010)(RSMo § 89.010)

i ti l l t d prescriptively arranges uses, elements, and environments

geographic cross-section across a continuum from rural to urban

organizes the components of the constructed world, including buildings, lots, land use, street, and all other physical elements of the human habitat

with the objective of creating sustainable communities and emphasizing bicycle lanes, street connectivity, and sidewalks

high-density and mixed use in urban areas high-density and mixed use in urban areas Prevails over conflicting standards imposed by

another jurisdiction Allows theater, cultural arts, and

i di i ( S 6 2 00 2 0)entertainment district (RSMo 67.2500, -.2510)

Design

New Home Construction1976 2002 %1976 2002 %

Average building sf 1,700 2,320 36%Average lot size (sf) 10,125 16,454 63%

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Multiple Use

Mixed Use

Borron v. Farrenkopfp(Mo.App. 1999) [Linn County] Health ordinance established

environmental controls and requires b dibonding

"nothing in this section shall be construed as restricting local controls"

Held: Authorized by health ordinance statute Not covert zoning Not preempted by CAFO statute

Borron v. Farrenkopfp(Mo.App. 1999) [Linn County] “The regulations in question do have a

zoning quality about them, but … there i f t f l d t h i l is a font of case law and technical information illustrating the health h d l t d t h f iliti Th hazards related to hog facilities. … The purpose of the ordinance was to regulate for health concerns rather regulate for health concerns rather than for a uniform development of real estate ”estate.

SubdivisionSubdivision

Subdivision Regulations Govern the division of land Provide for reliable ownership records Ensure safe and adequate lot creation Assure adequate site improvements Assure adequate site improvements Provide for the timing and sequencing

of growthof growth Establish development standards

Application ProcessApplication Process

OptionalOptionalPre-application

DiscretionaryP bli H iPublic Hearing

Ministerial

Construction security City of Bellefontaine Neighbors v. J.J.

Realty & Bldg. Co., 460 S.W.2d 298 (M A 1970) (Mo.App. 1970) authority to require performance bonds as a

condition of subdivision plat approval condition of subdivision plat approval "total silence concerning power in cities of

the fourth class to regulate subdivisions "the fourth class to regulate subdivisions.

Construction securityH B ild A Of G t St L i Cit f Home Builders Assn. Of Greater St. Louis v. City of Wildwood, 107 S.W.3d 235 (Mo. 2003) “construction deposit”= 110% of DPW estimated costp “maintenance deposit” = 10% estimated construction

costs 5% withheld on release pending completion of all 5% withheld on release pending completion of all

improvements Held: authorized by RSMo 89.410

Costs often higher than developer’s estimate or unexpected Costs often higher than developer s estimate or unexpected Statute enables reasonable estimate Statute not limited to “actual costs”, just “actual construction Rule of reasonableness Rule of reasonableness Actual construction often occurs years after estimated cost

Property Rights / C tit ti l Constitutional

IIssues

Constitutional IssuesConstitutional Issues

Takings Substantive Due

Process Procedural Due

PProcess Equal Protection First Amendment

Types of Takings Cases Downzoning Tough Standards Permit Denials Permit Conditions Permit Conditions Exactions

Takings – Fifth Amendment

Private Property Public Use Just Compensation

“While property may be regulated to a t i t t if l ti t f it ill certain extent, if regulation goes too far it will

be recognized as a taking.”Pennsylvania Coal v. MahonPennsylvania Coal v. Mahon

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Source: William Fischel, Dartmouth College (at http://www.dartmouth.edu/~wfischel/lucasessay.html)

Due Process Procedural Substantive

Dallen v KC (Mo App 1992)Dallen v. KC (Mo.App. 1992)

S i l i S C id i i i Special Main Street Corridor Review District Enabling ordinances prohibited modifications

of use restrictions in underlying districtof use restrictions in underlying district H: Ten (10) foot maximum setback invalid as

applied to gas stationapplied to gas station What in the !@$# constitutes “rural, rustic or

non-urban characteristics?”?!?!non urban characteristics? ?!?!

Dallen v. Kansas Cityy

State Ex rel. Stoyanoff v. yBerkeley (Mo. 1970)

ARB t d t i ARB to determine: whether new buildings are in “general conformity

with the style and design of surrounding structures and conducive to the proper architectural development of the City”

Disapproval if structure “unsightly, grotesque or unsuitable in appearance, [and] detrimental to the welfare of surrounding property and residents.”

Upheld Impracticality of comprehensive standard Procedural safeguards (appeal to City Council) Procedural safeguards (appeal to City Council)

Procedural Due Process Fair & impartial tribunal Fair procedures Opportunity for hearing Opportunity to confront Opportunity to confront

Equal Protectionf Types of cases

Ordinance classifications / applicability Ordinance exemptions Ordinance exemptions Permit denials Permit conditions

D i l f bli i Denial of public services

Tests Fundamental right/suspect class => strict scrutiny Fundamental right/suspect class => strict scrutiny Property right => rational basis

First AmendmentT i l Typical cases: Signs Adult uses

Tests: Time, place & manner => Narrow

scope and ample alternativesscope and ample alternatives Content based => strict scrutiny +

compelling interestAd i i t ti di ti Administrative discretion

Prior restraint

Federal Legislation Fair Housing Act / Americans with

Disabilities Act Telecommunications Act Religious Land Use & Institutionalized g

Persons Act (RLUIPA) Sustainable Communities InitiativeSustainable Communities Initiative

Nonconformities & Nonconformities & VestingVesting

Non-conforming (“Grandfathered”) Situations(“Grandfathered”) SituationsTests TypesTests lawfully established prior to new regulations

Types Use Bulk (height, size) prior to new regulations

maintained continuously

Setbacks Coverage Lot size Lot size Development standards

(e.g., parking, landscaping)

Vested Rights Definition:

Point in development approval process at hi h l d i ht t b ild d which landowner secures right to build under

existing regulations, without complying with changes in regulationschanges in regulations

Vested rights versus nonconforming use

Equitable Estoppelq pp Long v. Board of Adjustment, 856

S W 2d 390 (M A W D 1993)S.W.2d 390 (Mo.App. W.D. 1993) SF dwelling used as a MF dwelling for 31 years Plaintiff maintained business licensePlaintiff maintained business license Plaintiff obtained certificate of compliance per

Rental Housing Conservation Law Plaintiff paid real estate taxes at a commercial rate Plaintiff paid real estate taxes at a commercial rate MF dwelling violated zoning district regulations from

inceptionCity filed NOV 1977 & 1991 City filed NOV 1977 & 1991

Plaintiff’s appeal denied by BZA

Conclusion Murky but flexible comprehensive plan

authority Constrained but substantial zoning and

land development regulation authority Changing federal requirements and

constitutional jurisprudence