[Durham INC] New Zoning Threat and Proposed INC Resolution

Tue Mar 3 17:34:09 EST 2015

Until a rezoning deprives the owner of all reasonable value  or practical
use, regulatory action is not a taking.  A rezoning can add market value or
reduce it.  Neither is compensable.  This idea applies to all property, not
just real estate.  If the government commandeers your car for the war effort
or some other public purpose, it must compensate you for it.  If it severely
restricts where you drive it (public streets), how fast you drive it (speed
limits), or whether you drive it at all (driver's license) these actions
affect its value and use, but none of these regulatory actions is a taking.
The US Supreme Court settled this question early in the last century and
since rarely even takes a case based on zoning - only when something really
novel comes along - and when it has taken a case, it is only to apply the
well-established rules.

Both WHH cases were challenged in court and when the NC Supreme Court ruled
against the landowners in the first case, the landowners in the second case
dropped their suit.  In both cases, the rezonings restricted what the owners
could do with their property and they lost market value.  In one case the
property was rezoned from office and commercial to single family and in the
other case the land was rezoned from multifamily to single family
residential.  When the rezonings were over, though, each owner's land could
be practically used as rezoned and each property had reasonable value.
Instead of motels, office buildings, restaurants, apartment buildings, and
banks, they could use the land for single family homes.  Zoned for that
purpose, the land had value not unlike other property in the area similarly
zoned.  Because of this, the court ruled in favor of the city and the
neighborhood defendants.  Value is an issue only when all reasonable value
and use are taken.

From: INC-list [mailto:inc-list-bounces at lists.deltaforce.net] On Behalf Of
Richard Ford
Sent: Tuesday, March 03, 2015 2:08 PM
To: Philip Azar
Cc: inc-list at lists.deltaforce.net
Subject: Re: [Durham INC] New Zoning Threat and Proposed INC Resolution

Well I guess a rezoning is not technically a taking, but I wanted to make
the point that a owner could lose value.

If the owner himself brings the petition, then he could not claim a taking,
legally or substantively, I think. That's why I am talking about a third
party.

WHH is an example of both an economically successfully rezoning, but there
could be owners who lost value.

Dick

On Mar 3, 2015, at 1:37 PM, Philip Azar wrote:

To the extent that a re-zoning can be a taking, wouldn't it be the substance
of the re-zoning and not the identity of the party that initiates the
re-zoning that determines whether it's a taking?

On Mar 2, 2015, at 1:39 PM, Richard Ford <rbford at aim.com> wrote:

Ed,

If due to a third party rezoning my property goes from Commercial to
Residpropertyential, I have had value taken away, altho not a right to
compensation??

Dick

On Mar 2, 2015, at 12:03 PM, Ed Harrison wrote:

Zoning is a legislative, not a regulatory, matter. Any land with a zone on
it can be presumed to have a set of allowed uses. (Tom can tell you all
about the case law for that one, if you need to know). For the 13 years in
which I've dealt with third party rezonings as an elected official, I have
believed that if it is approved by the the governing board, it isn't a
taking.  Under *current* protest petition law, it's quite easy for any of
the property owners within an area proposed for a third party rezoning to
file a protest petition. If the petition is approved, they can then present
arguments against the rezoning, as can anyone in the world who knows about
it. 

I would be curious to know if a prohibition on third party rezonings would
then prohibit the adoption of neighborhood protection overlays. 

Ed Harrison

On Mar 2, 2015, at 9:52 AM, Richard Ford wrote:

Tom

Wouldn't  third party rezoning be a taking??

Dick

Sent from my iPhone

On Feb 27, 2015, at 6:07 PM, Tom Miller < <mailto:tom-miller1 at nc.rr.com>
tom-miller1 at nc.rr.com> wrote:

The NC Bar Association is working on a comprehensive rewrite of city and
county zoning statutes.  The draft bill is currently 160 pages long.
Although it is supposed to be mostly clean up and reorganization, it
contains a revolutionary provision about what it labels "third party
rezonings."  It's about who can file for a rezoning.   Under the law as it
is today and has been since the beginning in 1923, anyone can file an
application to rezone any piece of property.  You do not have to own
anything.  This is because zoning is an exercise of the government's police
power - the power to regulate for public health safety and welfare.  Zoning
is a public right, not a property right.  Rezoning is a public legislative
process.  Everyone has an equal right to participate.  If the law is changed
in the way the NC Bar Association proposes, only the city and landowners
would be able to file for a rezoning.  People who don't own the land in
question would not have a right to apply to have it rezoned.  They would
have to ask someone who had the right to apply to do it for them - the
landowner or the city.

Here is an example:  Today, I can apply to the City of Durham to rezone the
RU-5(2) property on Edith Street around the corner from me to RU-5.  Even
though I do not own the land, I can apply to rezone it the same way a
developer would do it.  I can pay the fee, fill out the forms, and submit
the maps and attachments required.  If I do this, even though I do not own
any of the land, the city must send the case to the planning commission for
a public hearing.  After that, the city must receive the advice of the
planning commission and then the city council must hold its own hearing and
then it must decide the case.  The council has no discretion to not consider
the application.  If the NCBA bill passes as it is written, I will not be
able to do this. To rezone the land, I would have to ask the landowner to
apply to have it rezoned and, if that didn't work, I would have to ask the
city council to initiate the rezoning.  They could refuse my request.  They
could even refuse to consider my request.  I would have no right to compel a
public hearing or a vote.  If the city council granted my request to
initiate the rezoning I requested, they could modify it without consulting
me.  It would be theirs.  They could even change their minds and withdraw
the rezoning case half-way through.   If they kept the case on track, the
thing would then go through the hearing process as described above, but the
city would be the applicant, not me.  They would not have to involve or
consult me at all about how the thing was handled. 

Neighbors do not often initiate rezonings of land they do not own, but it
does happen.  In the 1980s and 1990s, my neighborhood association applied to
rezone huge swaths of land in Watts-Hillandale from multifamily, commercial,
and office zones back to single family.  The land was developed already as
single-family houses, but as the houses aged, developers had begun to buy
them up and get the property rezoned to more intense uses.  The idea was to
use rezoning to raise the property values for resale.  When the properties
began to attract the attention of motel and office developers, the
neighborhood association applied to the city to rezone the property back to
single family use.  It was a huge fight and the landowners all filed protest
petitions, but the neighborhood made its case and won the rezoning cases
with only one dissenting council vote.  The ironic thing is that the zone
changes turned a severely declining older neighborhood of small houses into
one of the city's more popular neighborhoods.  Watts-Hillandale didn't
invent the idea - Trinity Park had done the same thing a few years before us
and the TPA leaders who were so helpful to us when we were organizing,
suggested the idea to us.

Zoning was not created to annoy property owners by restricting development
on their land.  It was created to protect the investment neighboring
property owners make in their land.  The zoning on your property protects
your neighbors from the crazy things you might do if there were no zoning.
The zoning on your neighbors' property is there to protect you in similar
fashion.  Neighbors are the primary stakeholders in the whole idea of
zoning, not property owners.  The Bar Association bill would make zoning a
cozy arrangement between developers and the city. If it passes, a landowner
would still be able to compel the city to consider his rezoning request, but
neighbors would only be able to ask the landowner or the city to start the
process - a request would could be ignored or refused.  It would reduce
neighbors to Oliver Twists asking for more gruel. It would reduce neighbors
to second-class citizens.  The gruel is ours.  We shouldn't have to ask for
it.

<A Resolution by the InterNeighborhood Council of Durham Concerning
Legislation Limiting Equal Access to the Legislative Zoning Process.docx>

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