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Wednesday, July 25, 2018

Court Dismisses Zoning Challenge as Moot

A property owner filed a lawsuit against a municipality challenging a city's amendment to its zoning ordinance to require a special use for residential uses on property zoned in the light commercial zoning district. The court dismissed the lawsuit because the owner failed to exhaust his administrative remedies by not applying for a special use permit. The owner then filed an application for a special use permit, but the city rejected it because it was defective. In 2017, the city rezoned his property, which rezoning contained the same residential zoning restrictions as the previous zoning code amendment.  

Subsequently, the owner filed a second lawsuit against the city claiming that the zoning amendment passed by the city in 2013 was invalid because he did not receive individual notice of the meeting of the city council where the 2013 amendment was adopted. The trial court dismissed the case, and the appellate court affirmed, both finding the owner's case moot because even if the 2013 amendment were held invalid, the 2017 rezoning decision would remain in effect with the same residential restrictions being challenged by the property owner.

Although the substance of the case is mostly procedural in nature, the appellate court's statements on the effect of a city's zoning approvals is interesting. The owner argues that he has a right to develop his property consistent with the zoning that existed when he bought the property. The court rejected that argument, finding that an owner has "no constitutionally protected interest" in the continuation of zoning. The other important issue is that the court acknowledges that the property owner should not be able to challenge a special use permit requirement without having gone through the special use permit process.

Post Authored by Julie Tappendorf


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