Wednesday, December 14, 2022

Talkin' Zoning: A Short History as well as C-Town, and Apartments & Dollar Generals

 It was in 1926 when the Supreme Court of the United States (SCOTUS) first upheld zoning ordinances as a constitutional exercise of police power. Prior to that, attempts by political subdivisions to codify those things were always stricken down. 

But w/ the seminal case of Ambler Realty vs City of Euclid, that year's version of SCOTUS found that these ordinances were in fact legal as per the General Welfare clause of the US Constitution. 

The reason for this was primarily it was based on money (like everything else, no?).

Since property taxation (another story for another time) has almost always been done in an ad valorem fashion (based on value), and since county & municipal governments get the lion's share of their revenue from these real property taxes, preservation of property values has always been a major consideration for the government, naturally. 

Everybody's got bills to pay. 

But a main part of that decision - which is also referenced in case law since - is that the key aim of this particular police power is to maintain "quality of life" for the Citizenry & to safeguard the public interest.

After all, we're talking the general welfare clause, right? 

Another key piece of the puzzle is that a governmental entity can always deny a zoning amendment if they don't have the infrastructure & services to be able to handle the increase of persons, vehicles & demand for services that a particular development might bring forth. 

And that really is ironclad. If an entity doesn't have the thoroughfare capability, nor the water & sewer capacity, or the necessary attendance ability for their schools (and remember: schools are SO expensive - gotta buy the land - usually from folks plugged in - build it & then staff it) to sustain it, or any number of another dozen things, they CAN SAY NO, so long as the zoning isn't already there. 

--If the zoning is in place, however, it's already a done deal --

If not, then it's a legitimate & winning argument for a political subdivision to simply say this:

"We're good. Can't handle it. Thanks, though." 

I mean, really, it is.

That's a fully legal consideration. In fact, you could simply just say that the quality of life of our town/city/county would be adversely impacted w/ another 400 cars per day on average on this particular road so therefore:


Yes. That's right. 


The developers, however, have perfected the art of dealing in bad faith & using their powers of persuasion (and their $$$), to convince weak-kneed, no-moral-compass-having politicians of buying their longstanding lie: 

Only "Development drives infrastructure" 

Well, that's pretty much the way it's always been, but it doesn't have to. 

There is a way to stop it. 


So, for C-Town, how many new Multifamily (MF) units do we currently have recently built, going vertical, in the pipeline & permitted? 

It's a lot. I don't think anybody knows for sure. It's in the thousands, though. 

Legally, we can deny a zoning amendment for MF for years! Like, several years... 

But, again, if it's already zoned, then you're just pissing in the wind.

You got the "Due Process" of the property owner to consider & the concept of an "Illegal Taking" as per the Constitution.  

I've been telling folks for years & years that we need to go through our code of ordinances & zoning maps w/ a fine-tooth comb at both the city & county level, but...

They never do it. 


And another legal reason for denial that's been upheld countless times over the years is this: 

The particular proposed use, zoning or endeavor is already well met for the community's needs. 

So if this particular use, or enterprise is already fully served, could this particular area, city or county vote to deny it? 

Whether it's apartments, Dollar Generals, or Waffle Houses, the answer to this question is an emphatic YES. 

- MBM 

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