230 SW Main Street, Suite 209 Lee s Summit, MO (phone)

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1 Planning & Land Use Law in Missouri Eastern Jackson County Planning Commissioners Training Series 2011 Mark White White & Smith, LLC 230 SW Main Street, Suite 209 Lee s Summit, MO (phone) mwhite@planningandlaw.com

2 Planning & Land Use Law Comprehensive Plan Authority Delegation Preemption Constitutional C issues Due process Takings Equal Protection Nonconformities

3 Authority

4 Authority Creature Concept Dillon s Rule Land Use Authority Broad Police Powers Home Rule Preemption

5 Adoption Cit ties / Tow wnships / Villages Firs st Class Charter Firs st Class N Ch harter 2 nd on- d/3 rd Class s Alt ternative 1 st /2 nd /3 rd /4 th Class Tow wnship Popular Vote Zoning / Planning Commission * Governing Body / Citizens * Governing Body / Highway Engineer / Citizens * Highway Engineer / Citizens * Governing Body / Citizens Commission referral original adoption Commission referral amendment Public hearing for change of use

6 Standard Zoning Enabling Act in i accordance with a comprehensive plan comprehensive plan not defined

7 Standard Planning Enabling Act Public improvements Official mapping Planning Commission approves public facilities Rarely litigated

8 Comprehensive Plan

9 Role of Plan Constitution i community vision fundamental land use policies Findings information legislative findings Enhances legal l basis for land use decisions "The [comprehensive] plan is atop the hierarchy of local government law regulating land-use. It has been amply analogized to 'a constitution for all future development'. Concerned Citizens of Calaveras County, 166 Cal. App. 3d 90, 212 Cal. Rptr. 273, (Cal. App. 3 Dist. 1985) (citing O'Loane v. 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 Communications, Inc. v. City of Walnut Creek, 802 P.2d 317 (Cal. 1990).

10 Consistency Pinecrest Lakes, Inc. v. Shidel, White & Smith, LLC. All Rights So.2d 191 (Fla. Dist. Reserved. Ct. App. 2001)

11 Missouri Consistency No mandatory consistency * plan language controls!! Unitary view Rationality Uniformity Zoning cannot modify or amend plan

12 City of St. Charles v. Devault Management (Mo.App. 1997) Condemnation case Tax Increment Financing (TIF plan) Inconsistent land use designations (residential v. commercial) Held: condemnation order denied Burden of proof: fairly debatable rule TIF statute requires full, not substantial, plan consistency Strict construction of eminent domain statutes Consistency is function of specific statute and exercise of powers

13 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

14 Zoning

15 Permitted v. Conditional Uses Designated in ordinance Administrative v. ministerial CUP/SUP administrative even where governing body approves permits

16 Use v. Building Form Roof Garage Front Entrance Driveway

17 Use v. Building Form Alley Roof Entrance Walkway

18 Spot Zoning 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 mother can maintain in harmonious operation the family home, without calling Dad from his work to run errands.

19 Transect-based zoning ) (RSMo ) prescriptively i ti l arranges uses, elements, l t and d 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 Prevails over conflicting standards imposed by another jurisdiction Allows theater, cultural arts, and entertainment district , i di i ((RSMo S ) 2 0)

20 Design New Home Construction % Average building sf 1,700 2,320 36% Average lot size (sf) 10,125 16,454 63% 2006 White & Smith, LLC. All Rights Reserved.

21 Multiple Use

22 Mixed Use

23 Borron v. Farrenkopf (Mo.App. 1999) [Linn County] Health ordinance established environmental controls and requires bonding "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

24 Borron v. Farrenkopf (Mo.App. 1999) [Linn County] The regulations in question do have a zoning quality about them, but there is a font of case law and technical information illustrating the health hazards related to hog facilities. The purpose of the ordinance was to regulate for health concerns rather than for a uniform development of real estate.

25 Subdivision

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

27 Application Process Optional Pre-application Discretionary Public Hearing Ministerial

28 Construction security City of Bellefontaine Neighbors v. J.J. Realty & Bldg. Co., 460 S.W.2d 298 (Mo.App. 1970) authority to require performance bonds as a condition of subdivision plat approval "total silence concerning power in cities of the fourth class to regulate subdivisions. "

29 Construction security Home Builders Assn. Of Greater St. Louis v. City of Wildwood, 107 S.W.3d 235 (Mo. 2003) construction deposit = 110% of DPW estimated cost maintenance deposit = 10% estimated construction costs 5% withheld on release pending completion of all improvements Held: authorized by RSMo 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 Actual construction often occurs years after estimated cost

30 Property Rights / Constitutional Issues

31 Constitutional Issues Takings Substantive Due Process Procedural Due Process Equal Protection First Amendment

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

33 Takings Fifth Amendment Private Property Public Use Just Compensation While property may be regulated to a certain extent, t if regulation goes too far it will be recognized as a taking. Pennsylvania Coal v. Mahon

34 Luc cas v. Sou uth Caro olina Coa asta al Co ounc il Source: William Fischel, Dartmouth College (at

35 Due Process Procedural Substantive

36 Dallen v. KC (Mo.App. 1992) Special Main Street Corridor Review District i Enabling ordinances prohibited modifications of use restrictions in underlying district H: Ten (10) foot maximum setback invalid as applied to gas station What in the!@$# constitutes rural, rustic or non-urban characteristics??!?!?!?!

37 Dallen v. Kansas City

38 State Ex rel. Stoyanoff v. Berkeley (Mo. 1970) 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)

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

40 Equal Protection Types of cases Ordinance classifications / applicability Ordinance exemptions Permit denials Permit conditions Denial of public services Tests Fundamental right/suspect class => strict scrutiny Property right => rational basis

41 First Amendment Typical cases: Signs Adult uses Tests: Time, place & manner => Narrow scope and ample alternatives Content based => strict scrutiny + compelling interest Administrative i ti discretion Prior restraint

42 Federal Legislation Fair Housing Act / Americans with Disabilities Act Telecommunications Act Religious Land Use & Institutionalized Persons Act (RLUIPA) Sustainable Communities Initiative

43 Nonconformities & Vesting

44 Non-conforming ( Grandfathered ) Situations Tests lawfully established prior to new regulations maintained continuously Types Use Bulk (height, size) Setbacks Coverage Lot size Development standards (e.g., parking, landscaping)

45 Vested Rights Definition: Point in development approval process at which h landowner secures right to build under existing regulations, without complying with changes in regulations Vested rights versus nonconforming use

46 Equitable Estoppel Long v. Board of Adjustment, 856 S.W.2d 390 (Mo.App. W.D. 1993) SF dwelling used as a MF dwelling for 31 years Plaintiff maintained business license Plaintiff obtained certificate of compliance per Rental Housing Conservation Law Plaintiff paid real estate taxes at a commercial rate MF dwelling violated zoning district regulations from inception City filed NOV 1977 & 1991 Plaintiff s appeal denied by BZA

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48 Conclusion Murky but flexible comprehensive plan authority Constrained but substantial zoning and land development regulation authority Changing federal requirements and constitutional jurisprudence