It happens all the time. A property
owner fails to get the zoning he or she wants, or gets zoning
he or she does not want. He or she immediately turns to the
lawyer and says, "Can we sue?"
Failure to Get Zoning
First, let us look at the case where the owner applies for
zoning and does not get it. In a recent actual case, the property
owner applied to change their zoning from light industrial
to general industrial. The change was consistent with the
general plan. The property was bordered on two sides by light
industrial and on two sides by general industrial. The planning
staff recommended approval. The planning and zoning commission
unanimously recommended approval. No one objected. In spite
of all this, the County Board by Supervisors denied the change
without apparent reason.
The property owner sued and won. The trial court ordered
the Board of Supervisors to grant the requested zoning. In
ordering the change in zoning, the trial court said the Board's
decision was arbitrary, and that there was not even a "fairly"
debatable issue as to whether zoning was proper.
It was a short-lived victory, however.
The County appealed and won. In reversing the trial court,
the appeals court said that the courts had no power to order
zoning changes. Zoning is a legislative function, not a judicial
one. The courts cannot act as a "super zoning commission."
Under the doctrine of separation of powers, the courts cannot
order a legislative body to grant new zoning, no matter how
compelling the case.
The rules are different when the government imposes unwanted
zoning on someone's property. In this situation, the zoning
is subject to challenge in the courts.
However, it is not easy. The owner normally must show that
the zoning leaves the property without any reasonable use.
It is not enough to show that the property owner suffered
a large financial loss from the zoning, or that the new zoning
is inappropriate or unwise. He or she must go that much further
and show that the property has been rendered practically useless.
If he or she can do this, he or she can force the government
to either set the new zoning aside and replace it with the
prior zoning, or purchase the property for its fair market
If the government denies your request for new zoning, you
are out of luck. The courts cannot help you. However, if the
government puts new zoning on your property that leaves it
without any reasonable use, you may have a change to get the
zoning overturned in court. However, even then, it will not
be easy. It is always an uphill battle to challenge zoning
in courts, but usually worth the fight if the value of your
property has been destroyed.
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