THE ATTORNEY - PLANNER RELATIONSHIP
‘KEY’ TO GOOD LOCAL ZONING
by
Craig Hullinger AICP and Chuck Eckenstahler AICP
INTRODUCTION
Planners carry-out day-to-day zoning administration. The municipal attorney normally is involved in the zoning process through review of proposed ordinance language and with enforcement proceeding.
A positive working relationship between the planner and attorney is vital to successful zoning administration. This article examines the role of the planner and the municipal attorney in day-to-day administration of the planning and zoning process.
YOUR LAWYER - DON’T LEAVE HOME WITHOUT HIM
Municipal planning and zoning today has become more complex and legalistic. Gone are the days when the planning commission, zoning board of appeals and elected officials could “sit back” and discuss the merits of a an applicants request and render a decision. Today the process of making the zoning decision requires strict adherence to procedures; public notification and decision making based on compliance with predetermined standards (typically contained in the local zoning ordinance).
In almost all cases the planner must be concerned with future litigation. The planner, planning commission, and Board must make decisions that will be upheld in court. Your lawyer is your expert, and the individual that you should rely on to ensure that your decisions will be fair.
MAKE FAIR AND LOGICAL DECISIONS BASED ON THE PLAN AND ORDINANCE
Decision making by a planning commission and board should be fair and unbiased. If a project is turned down, the reasons for the denial should be clear. The decision should be documented. Ideally the public debate should be clearly summarized in the minutes of the Board meeting.
The motion to approve or deny should include the reasons for denial. In practice this seldom happens. After an acrimonious debate a board member will often move to deny without summarizing the reasons for denial. This enables the attorney for the developer to summarize his opinion as to why the development was denied. The public will often vent against a project, and include testimony that is untrue or derogatory. It is important that the government explain clearly in writing why the request is denied.
FINDINGS OF FACT
A formal findings of fact prepared by the planner and attorney and adopted by the Board is the best protection against a law suit. The planner and attorney have time to prepare a logical summary of the legitimate reasons for denial of the project. The Board adopts the findings a month or two after the denial, with emotion out of the decision making.
In practice most towns do not write and adopt a formal findings of fact. Alternately, they develop such a finding for major projects where litigation seems likely.
BE FAIR, OPEN AND HONEST
The developer before the Board is usually a successful businessman who is often betting his life savings on his project. You must treat him fairly. If he is proposing an unpopular project citizens will speak out strongly against the proposal. At the public hearing the Chairman should keep order, and rule out of order testimony that is not pertinent to the case.
The planner has the most contact with the developer. The planner is often advising the developer, but must make sure that the planner is only an advisor to the Board. The Board makes the final decision. The planner owes both the developer and the Board his honest and open assessment of the project.
When it becomes clear that a Board will deny a project the planner should work closely with the attorney to ensure that no procedural errors are made and that there is no case against the community. When it is clear to the attorney and planner that the local government has erred the Board should be advised.
THE COURTS AS A SUPER ZONING BOARD
Most judges do not wish to become a super zoning board. They do not typically overturn a local denial that is based on law and sound judgement.
The Courts and the local government should ensure that they have logical and current Comprehensive Plans and Zoning Codes. The plan and code should be consistent. The goals and objectives of the plan and the purposes and intent of the zoning code should be consistent. A simple restatement of purposes and intent in the zoning code that is taken directly from the State enabling legislation ensures that at least the purposes of the code are consistent with State enabling legislation.
MAKING SURE THAT YOUR DECISION MATCHES CASE LAW
In Illinois standards were established in the courts in two major cases. These standards will be considered by the courts in evaluating challenges to municipal zoning decisions. The planner and attorney should obviously consider these standards when making zoning decisions, and preferably state so in writing in the findings of fact.
LASALLE NATIONAL BANK v. COUNTY OF COOK (1957)
SINCLAIR PIPE LINE COMPANY v. RICHTON PARK (1960)
1. The existing uses and zoning of nearby property
2. The extent to which property values are diminished by the particular zoning restrictions
3. The extent to which the destruction of plaintiff's property values promote the health, safety, morals, or general welfare of the public.
4. Relative gain to the public compared to hardship imposed upon the individual property owner.
5. The suitability of the subject property for the zoned purposes.
6. The length of time the property has been vacant as zoned, considered in the context of land development in the vicinity:
7. Community need for the proposed land use.
8. The care with which the community had undertaken to plan its land use development.
A simple written statement with a paragraph explaining how your decision is consistent with these 8 standards is valuable.
THE TRACK RECORD OF YOUR COMMUNITY
Does your community make logical decisions on land use, or are your decisions unreasonable, arbitrary, and capricious? Have your zoning decisions often been overturned, or are you usually upheld?
YOUR LAWYER IS YOUR PARTNER
It is important that your lawyer is your partner in working with your community. His training is different than yours, and he sees things in a different way. You need to work closely with him or her to ensure that you and your community make consistent, logical, and fair decisions based on law.
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