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Ep. 73 | Mini Series On Zoning Options To Utilize Your Property – Legislative v Administrative Review

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On this episode of The Mobile Home Park Lawyer, Ferd discusses zoning options to utilize your property. Ferd informs us of the differences between legislative and administrative reviews, the BZA, and how to appeal cases. Enjoy!

 

HIGHLIGHTS:

0:00 – Intro
2:01 – Typically you should talk to city staff and they’ll provide a recommendation
2:19 – Ensure you read the code so that you’re waving any grandfather rights if you have them
3:46 – Ferd discusses your next step if you end up not liking the decision, legislative v administrative review
4:03 – Ferd gives an example of a legislative review for across the board effect
5:00 – Ferd talks about what to do for a singular property
7:10 – If you’re asking for a re-zone for a singular property it could be an administrative or legislative review
7:28 – Ferd tells us what we can do if the BZA says no to a one-off decision for a singular property
8:50 – Ferd gives an example of appealing the BZA’s decision
11:51 – You have to be rational and understand the government makes decisions for the protection and safety of the public
12:15 – Ensure you do a good job with your evidence at the hearing as it is hard to win against the BZA
14:02 – Some jurisdictions give the BZA limited power and they act as a recommending body but more often than not the BZAs word is final

 

FULL TRANSCRIPTION:

Welcome back mobile home park nation. Tonight I’m going to wrap up my miniseries here on how to utilize your property best via rezoning, CUP, or variance. And these are all ways to utilize the property really in opposition to, with opposition from a city, code provision or city staff. And an alternative to fighting them on grandfathering instead of you don’t have good grandfathering. So you got to come back for one of these three methods.

So I’ve touched on this a little bit in the other episodes, I’ll try to be brief on this but wanted to talk about the process. And in kind of the review standard of you are going to fight the city through like a lawsuit or something down the road. And I got a couple of stories that have happened recently with clients where some people didn’t make the right decisions, you know, that were our predecessors an interest in it’s really harmed us in our arguments at this point. Typically, you want to talk to staff, city staff, and you know, they’ll give a recommendation, and typically you got to go, you know, meet with staff, they have something called a review meeting or development committee meeting or a pre-application meeting. And they tell you all the dos and don’ts and problems. And you want to make sure you read the code and make sure that by applying for something like a rezoning you’re not waiving any grandfathered rights if you potentially do still have them.

But typically you go to staff, and then depending on the process the staff may forward you on to a plan commission, typically a rezoning or a CUP you’re going to go to a planning commission then ultimately the City Council. A variance request typically would go to a board of zoning adjustment or a board of zoning appeals. In some cities they change that. It’s going to depend on local law. But typically the BGA is supposed to be like an alternative route from the politicized route of the city council. And the planning commission, again, is a volunteer group of citizens within the community. They just make recommendations to the city council, they don’t have a ton of power. And now they can paper the record with, look, this variance rezoning should not be allowed for these reasons. What the politicos end up approving it, and you might be spot zoning, you might be subject to some later challenge. Ultimately, the council typically makes the decisions on cups and rezones. And typically the BGA does on variances. It’s not quite that simple. But it’s pretty close. And again, on variances, there’s a use variance and there’s an area variance and use variances are pretty rare.

So next, if you end up not liking the decision, what’s your path, they call it legislative versus Administrative Review. And typically, you know, anything is legislative is comes from City Council. And that’s generally more like across-the-board rules. So for example, if I go to the City, Kansas City and say, I would like there to be 10-foot setbacks instead of 25-foot setbacks for the perimeter of all mobile home parks in the city, I can do what’s called a textual amendment to the zoning code, which is often called the uniform development code, unified code, the Muni code, the code of ordinances, zoning code, planning, and zoning code, but it’s just the code, right? I changed the text, well that’s across the board. If I change the text, and all mobile home parks in Kansas City can get the benefit of this text. And then typically, if I rezone, then all people in that area would get on that classification would get benefit on the zoning map. So that’s probably not going to happen a lot where you’re doing that. If you did, the legislature makes that decision. So it’s clearly a legislative decision. But if it’s something on a singular property, like a variance, sometimes a CUP, there’s a variance like, Look, Ferds’ property deserves a different setback for XYZ reason. I got a problem. It wasn’t my fault. I didn’t cause it, but it’s just impacting me. Well, that’s pretty much you know, a one-off decision. And if I asked for a variance, they are generally done by the BGA. But I could, frankly, do a textual amendment to the zoning code that happens to only impact me.

So in Missouri, there’s something called tax increment financing. Basically, it’s a subsidy for real estate development projects. And it could apply in theory to every parcel in the state. And there’s a voluminous stipulation I’m not going to cover here, but there’s one old famous hotel called The Elms in Excelsior Springs, and like, Al Capone and his mob buddies used to like rent the whole place and throw these big parties. So it’s pretty historical, for you can see the mob. So it’s also just as big, beautiful estate and this huge hotel and it is really cool. I’ve been there a couple of times, and sprawling pools and flowers and stuff really cool. So the city, it’s also an economic engine. So the city convinced the state legislature to do what’s basically called state TIF. And it’s like I think it is super TIF or the state gives up its sales tax too. But they couldn’t make a one-off exception to benefit one business. So what they did was they said, we’re just going to make a statutory change, to allow all historical hotels that are at least 300 rooms in a town of between 26,000, 27,000. And with a historical designation in a building that is older than 100 years, all projects that fit those criteria are eligible for the benefit of super TIF.

So clearly, by that text amendment, they’re picking on and benefiting one property. But in theory, there’s a second or third hotel, just like The Elms. So tell you that story to say on the zoning, if you’re asking for a rezone, or a textual image just on your property. It could go either way, whether that was determined, whether that should be administrative, or whether it should be legislative. And this is for the review. You know, because basically, if you got a one-off decision, it’s just my property. And if I don’t like the result, for example, if the BGA says no, okay, well, that feels like you’re picking on me, well, I should have some rights. And these are rights like a regular, almost like a regular trial. And I get things like I get a hearing, I get a notice of hearing, I can present evidence, if the city presents evidence, I can rebut it, or cross-examine them. I’m going to be allowed, you know, legal counsel. And ultimately, when it’s done, I deserve a written decision, you know, up-down, and it was some analysis of the evidence that was presented. That feels fair.

And, and then I can go, and I can appeal that, typically in a BGA for variance, if you don’t like it, you flag it. What the BGA did, you can appeal but you appeal straight to the district court, and you don’t appeal to a city council. Because this is a process outside the city council. And certain court reviews these things, either de novo, which basically means like, didn’t happen, like a fresh start. And it means like new on the record or a new or something in Latin. But on something that’s BGA the topic and review it on the record. What that means is they’re not going to let you bring in new evidence. And they’re not going to take their own, do their own research. They’re going to say let’s look at the record. So recently, I was working on a case in Indiana, and the previous owner actually appealed to the BGA. But they didn’t do a good job at all. Presenting evidence from BGA. They don’t even show up. The owner, they sent their park manager and then boom, the city showed up. The whole mob of protesters showed up, the city was ready, the city’s planning staff and they just hammered this Park manager. So that Park manager didn’t do a very good job. Well, this shouldn’t be a winning case, frankly. Well, the owner then appealed to the circuit court. Well, the circuit court did not review de novo. They reviewed the record, Well, the record was crappy because they had crappy evidence. They had a park manager there, no lawyer, no owner, no coaching, no prep. And based on that record, the case was dismissed at circuit court and they were going to, and they lost what I thought was grandfathered rights. And they lost their appeal. And it was pretty brutal.

So de novo is new. So typically, when it left the legislative base decision, and you don’t like it, you can appeal to the circuit court, circuit court says, What city council? We don’t care. And they look at it from a fresh start. And they do that somebody’s reading, you know, get rid of the politics, I think, but ultimately, they say, we are the circuit court, we don’t care about city council. Now it’s hard to win those typically these the burden of proof is still on the applicant, the plaintiff, us the property owner. Continuing on with de novo review, again means new, the court may consider new evidence. So not only do they not really care what the city council considered, they’re going to do their own research, and they do their own job, frankly. And during this review, the court basically sees if the proceedings with the City Council violate any constitutional protections. And this can really happen in one of two ways, you know, facially, which essentially means that the ordinance on its face is unconstitutional. And, you know, for example, if the ordinance says we don’t think you can never utilize your property for agricultural land, even though you can’t plant flowers. You can’t do all these different things, that makes no sense. Like, there’s no rational basis to just like, not let you plant flowers on your big property. That’s just on its face is unconstitutional, it’s an unrealistic restriction.

The more common one, probably be unconstitutional as applied, which basically means as it applies to me the pissed off, you know, applicant, the decision is unconstitutional. Now the burden of proof would be on me the applicant, and I have to present, you know, clear and convincing evidence, which is, you know, 51% Plus, it’s not 100% or 99.99, like, you know, beyond a reasonable doubt. It’s got to be pretty strong. And I need to show that I’ve suffered some sort of pain. And in the end, I have to overcome this with a rational basis that this government did this, for the protection of the public welfare, the health safety, morals, and welfare of the community. So it can be tough, that’s where you lose on things like fire code, because it’s like, it’s very reasonable to have homes spaced further apart than is likely to cause them to burn one after the other.

So again, unlike the de novo review in the legislature, the Administrative Appeals, like on the BGA those are really great on the record. So if you do go to the BGA, you really got to make sure you do a good job with your evidence in that hearing. And you know, you pretty much have to have an abusive BGA overturn those. I think it’s called, like arbitrary capricious, an abusive, which basically is like the rule, the ruling was just crazy stupid. And if they are support of that, then you’re going to win, but they just not support meaning that the BGA has any real evidence supporting their input. Well, then it wasn’t a crazy, stupid decision, it was just like, it was their opinion, and they’re entitled to it. So it’s really hard to win on against the BGA appeal, they got to be almost criminal. Like they like basically, you got them on tape saying something like, Yeah, I don’t like those stupid trailer parks, or I don’t care what the request is, I’m going to turn it down. Okay, that’s an abuse of power, that’s absurd and unbiased.

Now, the downside of this is, you don’t get to just choose where you want to go the administrative review or Legislative Review route, the process you went through, kind of drives that for you. And the process you go through is based on where, again, you’re choosing these three different methods of utilizing your property, your rezoning. You’re requesting a variance typically the BGA, or you’re requesting a CUP, which, depending on the municipality could be a legislative city council move, could be an administrative BGA. And then sometimes the BGA their decision is final, like most times it’s like an alternative route city council. But sometimes in some jurisdictions, they’ve decided to give their BGA either the state of the city has given the BGA limited powers and they are just a recommending body. They’re basically a plan commission, but for an alternative route, which kind of baffles me.

But anyway, that’s a couple of tactics and a couple of just, you know, background stories of how to utilize your property, of an onerous zoning code, in the face of an obstinate or possibly in the face of the fact pattern that is not favorable, or you need to go ask for permission. I typically fight and the grandfather status. Because most of the parks I look at are legal, non-conforming, and you know, it works better than you’d think. You know I’ve got a more long-winded analysis on that I should probably do an episode, that would have been better than this, to be honest. But I’m going to reevaluate how much of that I feel like put my neck out there. So these cities hate me, and I get a speeding ticket or something. But anyway, zoning stuff honestly, not the most fun, but it’s super important. So I try to keep abreast of it, you know, at least at a reasonable level and encourage you do the same. I hope this helps. Until next time, have fun, sleep well, God bless.

 

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