HomeMy WebLinkAboutCOM 0898.002 2020-2022 PC
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From: Antu Harvey r`0 V ftl"
Sent: Monday,August 15, 2022 11:52 AM
To: Council Testimony AUG 15 Am
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Subject: Testimony- Bill 194 (0989) - IN SUPPOR1017 w
By Antu(`Anne`) Harvey JHolualoa -MON AUG 15, 2022
Thank you for this opportunity to testify remotely.
I request you approve this bill.
am in Support of Amending the Conditions to Change Zoning such that Council Approval is Required.The reasoning includes
three main items:
1. Setting Expirations in the Code was deliberate and intentional.
• The decisions are weighed on factors presented at the time. Circumstances change that'blindly'proceeding with
outdated plans can significantly adversely impact the intended benefit to the public good. 'Grandfathering'in
decisions compromises the thoughtful re-consideration and weighing of updates to those key factors. (think:climate
change,degraded infrastructure, or area growth that exceeds the original projections).
2. Routinely granting extensions compromise the standard process, becomes the 'new normal'and is NOT equitable.
• Zoning change decisions are made outside the carefully orchestrated workflow and sequence. Easy extensions
unintentionally compromise equity under the law as they are handled outside the set time window and standard
process,are custom,difficult to apply fairly and open the County to litigation liability risk.
3. Including extensions at'Director discretion'is more costly to the taxpayers
• These extensions are currrently not rare.The create'backflow'to the standard process, causing more work for
staff and time for community civic engagement and Boards&Commissions to review. It is far more effective and cost
efficient to require'Return to Go'and avoid the chaotic exception handling.
• Easy extensions may both cover up previous poor process and introduce new risks for litigation.
Please simplify the workflow process for the better- for applicants, public and staff—make extensions a rare and difficult
exception.
Mahalo for your time and your service to our community.
—Antu
Related reading:
Michigan State University Extension, "Zoning Runs with the Land, Except When it Doesn't"
https://www.canr.msu.edu/news/zoning runs with the land except when it doesnt
While equal treatment under the law must always be a government priority,a number of municipal attorneys believe that zoning approvals
can expire if not acted upon within a specified period of time.
It is common knowledge that zoning`runs with the land'and any parcel-or lot-specific zoning approval,such as a dimensional variance,
continues with the land,not the property owner.In other words,if the person you bought your home from was granted approval to infringe
into the side yard setback by two feet to construct a garage,then you, as the current owner,can continue to legally make use of the garage
too. �
Comm.NCO-, Ga%I
t Ref.To- c
Ref.IDate AUG-1____6 2022
The reason is based in the Egual Protection Clause of the Fourteenth Amendment to the U.S. Constitution,which states that no state shall
deny to any person within its jurisdiction the equal protection of the laws.In the case of a zoning variance,if the facts existed to approve the
zoning request the first time,and then someone later asks for the same thing,under the same zoning ordinance,for the same parcel,there
should be no way for the answer to be any different.Identical findings under identical circumstances is equal treatment under the law. Again,
many planning and zoning officials understand that zoning decisions are permanent and run with the land.
Yet,zoning approvals can expire and it is common for an ordinance to have language that says `within X period of time an approved variance
is valid and must be acted upon'.An example is a 90-120 day`window'within which a variance must be acted upon. Such ordinance
language does not conflict with the legal principle that variances are permanent and run with the land,because the variance has not been acted
upon and rights have not been vested.Put differently,having zoning approval is not the same as `vesting rights'by acting on a zoning
approval with an investment on the property,such as the pouring of footings,construction of a foundation,or construction of the building.
A Florida Law Review article—Zoning Finality:Reconceptualizing Res Judicata Doctrine in Land Use Cases,Vol.63(Sterk&Brunelle,
2011)—frames the issue well from a legal scholar's point of view.In the section`Time-Limited Variances and Special Permits' (beginning
on p. 1,15'7),the authors write"While a board can reasonably decide that circumstances might change ...,reserving for itself the power to
make a different decision that takes into account facts that subsequently unfold,a board cannot reasonably decide that its decision would be
different ... on precisely the same facts.As a result,the board's current decision will bind the board in the future so long as the facts do not
change"(p. 1,159).A footnote then reads"Whether the board should be free to depart from its initial determination based on newly
discovered facts,that is,facts in existence at the time of that determination but not brought to the board's attention,remains an open question.
Courts typically defer to board decisions characterizing newly discovered evidence as changed circumstances".
In conclusion,a zoning approval that has not been acted upon by the property owner can expire,but the approving body must be careful when
weighing its decision the second time around.If the circumstances haven't changed the second decision must be the same as the first,
otherwise the local government may be at risk of a losing a challenge in court of violating one's Constitutional rights to equal protection.
Michigan State University Extension land use educators can help your local unit of government better understand its legal roles,
responsibilities,and limitations in planning and zoning.This is not a substitute for legal advice from a municipal attorney.
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