When does zoning go too far?

Where should communities draw the line between neighbors’ rights and personal freedoms? When is the local government protecting its citizens, and when is it sticking its collective nose into the private affairs of individual taxpayers?

For decades, local governments have used relatively subjective zoning regulations to give themselves latitude as they steered growth and development in their communities.

The whole point of zoning is to ensure that a company assembling, say, jet engines, will never be able to stick a plant in the middle of your peaceful R-1 subdivision. In theory, the zoning rules exist to protect everyone, by creating areas in which only compatible uses are allowed.

Some land-use combinations are generally verboten, such as siting heavy industry amid single-family dwellings. A business would need a variance — an exemption from the zoning rules — to operate in areas where such industry is prohibited

But because local governments can’t foresee every possible scenario when writing zoning codes, they generally create lists of uses that may be allowed. For instance, a doctor might be permitted to open a solo practice in a residential area — depending on various circumstances, such as the impacts on the neighborhood … or whether that doctor has local ties … or how organized and vocal the neighbors are … or the local government’s mood at the time.

Developers and business owners complain that, too often, they have to tiptoe through nebulous zoning requirements to get “conditional” or “special-use” permits. In many communities, that means convincing officials that the proposed activity will not be “injurious, to public health, safety or welfare.”

But what, exactly, constitutes “injurious”?

Consider this example: People opposing a proposed project may present evidence at the zoning hearing that the development would increase traffic in their neighborhood by 25 percent. “Does that adversely impact the neighborhood?” asks Asheville Senior Planner Gerald Green. “Who makes that decision? It still leaves room for interpretation.”

Many towns, villages and city councils across the country have purposely written vague ordinances, to give themselves maximum freedom of choice in specific cases. Although that flexibility can be good for communities, it sometimes spells bad news for political outsiders, who lack the clout to influence government decisions. And given the vagueness of most zoning ordinances, those decisions sometimes reflect personal agendas more than sound public policy.

However, the tide is turning. Courts throughout the United States have become more interested in making sure that local governments follow their own stated policies. “It’s a trend that’s been developing over the last half-dozen years,” Green estimates.

The judicial evolution started in other sections of the country and then spread to North Carolina. Judges are increasingly ruling that, if you want to prevent someone from operating a business, you’d better have a pretty good reason — and that reason must not be conjecture or personal opinion, but substantiated fact.

Harnett County refused to grant a permit for a manufactured-home park because of speculation about the “kinds of people” it would attract. But the court sided with the developer, finding that a business cannot be blackballed simply because of vague speculations.

Asheville’s response to the changing times was to pass — after nearly a decade of wrangling — the controversial Unified Development Ordinance, which lists only four types of conditional uses that require special permits, Green explains. Theoretically, the city will end up making fewer judgment calls, because a proposed business is either an allowed use in that spot, or it’s not.

A fairer process

When a zoning board denies a request for a permit, “it cannot be an ad hoc, seat-of-the-pants, discretionary decision,” explains David Owens, a faculty member with the Institute of Government. The professor specializes in land-use law at the UNC-Chapel Hill.

Owens keeps a careful watch on legislative trends affecting zoning issues, and his observations are respected by others in the field. “David’s written the book that most of us read,” says Andy Romanet, general counsel for the League of Municipalities.

Owens has observed that the courts generally don’t second-guess local zoning boards. However, they do rule against local governments that fail to follow proper procedures in the permitting process.

When a zoning board denies a permit based on general attitudes, rather than the zoning code, Owens says, “the courts generally try to hold the local government’s feet to the fire.”

First of all, local governments are responsible for adopting clear zoning regulations that enable zoning boards to make factual decisions, rather than subjective choices, Owens explains.

Second, the zoning board must hold hearings for permit applicants, and people must be allowed to argue for or against the proposal — under oath. The zoning board is responsible for weighing those arguments: It must pass judgment based on empirical evidence, not unsubstantiated claims, emotions or community attitudes.

Finally, if the board decides to deny the permit, it must specify why the proposal fails to meet zoning requirements, Owens says. “They can’t just say it’s incompatible. They have to give some evidence, some reasons.

“As long as there is some evidence on both sides of the question presented, whatever the board decides usually prevails,” Owens concludes. However, when local governments fail to follow the proper procedure, judges often rule against them.

Owens studies cases like the Weaverville Featherbed, an old house refurbished by a mother and daughter from Florida who planned to operate it as a bed-and-breakfast. Twice, Weaverville’s Zoning Board of Adjustment has denied the women a B&B permit.

The North Carolina Court of Appeals has already sent the case back to Weaverville once, saying that the zoning board had failed to handle the case properly. But after the board denied the permit a second time, on July 29, 1997, the women again decided to contest what they see as an arbitrary decision that violated their property rights.

Owens isn’t willing to predict whether the women would win a lawsuit against the town of Weaverville. However, he does see the Weaverville Featherbed as a good example of a business that has a reasonable chance of successfully suing, because of the way its permit was denied.

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