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Steps to avoid land use liability

A developer has applied for permits to build an apartment building in a part of the city that is zoned for residential use. Although apartments are an allowed use for the proposed location, no other apartments exist in the neighborhood, only single-family homes. The proposed apartment building complies with all of the city’s zoning and building codes. When neighbors find out about the plan, they ask the city council to stop the project. Does the city council have grounds to deny the project? The answer depends on what the city’s comprehensive plan and zoning ordinance allows.

The above scenario is not an isolated case. Many municipalities have faced similar situations.

With building activity picking up after the economic downturn of recent years, applications for zoning approvals are increasing.

"We are seeing cases where city councils are being surprised by projects approved by staff that they do not believe are in the city’s best interest," said Scott Slatton, legislative and public policy advocate for the Association. "Staff had approved the projects because they were allowed based on the zoning ordinance."

Planning commission members, city councilmembers, mayors and staff must understand the types of land uses allowed (or not allowed) are governed by their local zoning ordinance.

"The time for local officials to question development activities they believe are incompatible with their vision for the community is not after the staff approves an application, said Slatton. City staff must review the development based on the regulations in place at the time the city receives the application. "If they want a different outcome, council needs to amend the zoning ordinance long before an application is ever submitted," explained Slatton.

"The same situation can occur in the reverse," continued Slatton. Council or the economic/downtown development staff may want to attract a specific project to an area, such as retail stores in a previously undeveloped area or residential units in a commercial zone. Until the zoning ordinance is changed to specifically allow the activity, these "wish list" developments cannot occur.

State law requires local governments review their comprehensive plans every five years. Because zoning is a tool to implement the vision laid out in the comprehensive plan, city officials should also review their zoning ordinance on the same schedule to ensure it is consistent with the plan. This is especially true for cities experiencing a great deal of growth, Slatton advised.

The Association’s Risk Management Services produced a public officials’ liability toolkit for its members. The toolkit includes tips on making land use and zoning decisions to lessen the city’s legal liability.

"The bottom line is," Slatton said, "if there’s something you, as an elected body, do not like about what your zoning ordinance allows, change it rather than deny zoning approval. Denying a use with no reasonable basis—that will get you beaten in court every time."

Tips for local officials

  • Develop and adopt a zoning ordinance and comprehensive plan that encompasses state requirements for land usage. Update both periodically to reflect any changes in state law.
  • Always base decisions on the zoning ordinance and comprehensive plan.
  • Make all decisions in an objective and consistent manner.
  • Review all decisions with an attorney who is familiar with zoning issues, ordinances, public meeting requirements, and applicable state and federal law.
  • Document the decision-making process accurately and completely. 
  • Follow all requirements of the Freedom of Information Act.

Source: Public Official's Liability Toolkit, Risk Management Services

During the Association’s Annual Meeting in July, there will be a breakout session on the topic of land use liability. See related story about the Annual Meeting on the cover.