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How much can a city zone?

Monday, October 26, 2015 by Jack Craver

You don’t need a badge and a gun to have police powers. Just ask the members of the Zoning and Platting Commission, who on Tuesday listened as Assistant City Attorney David Sorola gave a presentation outlining the extent of the volunteers’ authority.

“The courts have said that zoning is a valid use of the police power,” he told the volunteer commissioners.

How so? Zoning falls under a legitimate form of government legislative authority aimed at promoting public safety, health and welfare. But in order to properly enforce zoning, it must be done in a certain way. That means that zoning decisions must be subject to public input and enacted in a clear, consistent legislative process.

Sorola emphasized that land use commissioners are part of legislative bodies, not judicial ones. Unlike, say, the Ethics Review Commission, the Zoning and Platting Commission is not constrained by rules on what evidence or testimony can be considered when evaluating a case.

Indeed, those who come before the commission make all kinds of arguments for and against projects. Even in cases when the commission is statutorily obligated to approve a project, commissioners will patiently listen as neighbors come before the panel to decry the project.

In his presentation, Sorola also made clear that Imagine Austin, the city’s comprehensive plan, is not merely an advisory document. State law in fact specifies that zoning must be done in accordance with any existing comprehensive plan.

But cities are still free to pursue dramatically different approaches to zoning – as is clearly evident in Texas – without having to justify their decisions in court. Disputing a zoning regulation in court is an “extraordinary” challenge, Sorola explained. To do so, a plaintiff must show that the zoning regulation represents “a clear abuse of discretion” or that the regulation is entirely arbitrary.

“If the reasonableness of the ordinance is even debatable … the courts are going to err on the side of the municipality,” said Sorola.

But one way to challenge a zoning decision is to prove that it was a “regulatory taking.” A regulation would be considered a taking if it “destroys all viable economic use” or if it destroys a “reasonable investment-backed expectation.” That means that if a person buys a property with a clear intent to derive an economic benefit from it, a zoning regulation that prevents him or her from pursuing that financial gain could be struck down as an illegal taking.

And then there’s the ever-elusive concept of “contract zoning,” in which a zoning authority promises preferential zoning to a private interest in exchange for certain things, such as money. Sorola’s presentation explained it as a situation in which a city “barters away its legislative zoning authority for something of value from the applicant.”

While courts have consistently declared contract zoning to be unconstitutional, it’s not always easy to distinguish between an illegal quid pro quo and the demands the city regularly makes of developers seeking conditional zoning changes.

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