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In The Zone
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Regulating
development within a jurisdiction can be tricky.
By Peter Downs
Businesspeople planning any sort of development may feel that it
is their money and project, so they should be able to build it as
they want, but “they may need to look as much to developing community
support as to developing a site plan that comports with zoning restrictions,”
says Thomas Campbell, a partner with Gallop, Johnson & Neuman, L.C.
who specializes in zoning law.
Campbell has represented clients in zoning matters in St. Louis
city and county, St. Charles County, and out of state.
“One common issue overlooked by clients is they fail to appreciate
the importance of bringing local elected officials into the process
early, or at least letting them know what is going on and presenting
them the project design and the reasons why it is positive for the
community,” he says.
Municipalities have wide leeway in zoning matters, much more so
than in subdivision regulations, says Michael Turley, a partner
at Lewis, Rice & Fingersh, L.C. and a former member of the Jefferson
County Planning and Zoning Commission. Historically, courts have
been reluctant to second-guess those decisions.
In other words, it is best for the businessperson to get it right
the first time. But it isn’t easy.
Zoning, says Steve Koslovski, a partner at Blumenfeld, Kaplan &
Sandweiss, P.C., “is complicated and confusing. It involves a lot
of different legal terms, and a lot of emotion. There is nothing
more emotional than having a zoning meeting in which the room is
packed with people adamantly opposed to something they think is
going to impact the biggest investment they have, which is their
homes. Whether they are right or wrong about the impact, they feel
passionately about it.”
Koslovski has represented a variety of clients in zoning matters,
from owners of small businesses and builders of single-family homes
to large office and warehouse developers, including Sachs Properties
in Chesterfield.
The idea of zoning is to regulate development that occurs within
a jurisdiction, so that, for example, a commercial building or factory
isn’t located in the middle of a residential neighborhood. Usually,
there is already some development in place when an area adopts zoning,
so you can end up with a patchwork of zoning classifications designed
to match what is already in place. The future, however, is hard
to predict. A growing commercial area may need to expand into an
area zoned residential, or vice versa, so a constant stream of requests
to change a zoning classification or get a variance are a built
in feature of the system.
In recent years, however, battles over reclassifications or variances
have become more contentious, Koslovski says, so much so that it
is becoming almost routine for them to end up in court.
Campbell agrees, and blames it on increasing population density
across much of the metropolitan area. He says one result of widespread
suburban growth is that “any kind of development now impacts any
number of groups of people...[who] are often willing to pursue other
remedies” beyond the municipal government.
There is, however, no magic number below which the density is too
low for such disputes to arise. Turley says his conclusion from
13 years on the Jefferson County Planning and Zoning Commission
is simply that people hate change. It is not so much what a businessperson
proposes that is at issue as that it is a change. “In Jefferson
County, it’s been rural so long we’d have people who lived two miles
away [from a proposed project] come in and vehemently object to
the project because they could look out their window and see it.”
Of course, some projects introduce more change than others, and
more controversy. “I’ve seen some extremely contentious meetings,”
Turley says, “but the worst ones all seem to do with that gambling
boat in Kimmswick.”
During the years Turley was on the zoning commission, several zoning
decisions were challenged in court, though usually by developers,
not disgruntled citizens. In Jefferson County, the zoning commission
makes recommendations to the county commission, which is the board
with decision-making power. That arrangement is not unusual.
“What I saw more often than not was rezoning was denied for political
reasons, the huge opposition to the project, the developer contested
the decision on the basis that his proposed project was in compliance
with the master plan, so the denial was arbitrary.”
Courts, however, have been reluctant to intervene and second-guess
the local legislature, he says.
Courts tend to look at the process used to reach a decision, rather
than the reasons for the decision, Campbell says. He says he is
aware of a number of cases where courts cited zoning boards for
failing to meet minimum procedural requirements, but they also allow
boards a great deal of discretion on why they make the decisions
they do.
With so much discretion vested in governing boards, there is no
surefire recipe for zoning success. Indeed, “Zoning boards are as
varied as the individual that sits on them,” Campbell says. “Some
municipalities have a culture of encouraging development, others
have a culture of not being as sympathetic. You see that reflected
in the zoning boards.”
The lawyers interviewed for this story indicated that Ladue and
Town and Country are famously strict about their zoning, while poorer
municipalities hungry for development usually aren’t, except for
the city of St. Louis. The process there is sort of a four-headed
monster. There is the zoning board, same as anywhere else. But there
is also a quasi-official network of neighborhood organizations,
each of which makes zoning recommendations for its area. Then there
is the Heritage Commission that regulates development near parks
or in historical districts, which accounts for much of the city.
And, the city has a strong aldermanic system, so the alderman has
a lot of say, officially or unofficially, over what development
goes on in his ward.
This means that logistically, zoning is a game of politics, not
rulebooks.
“A lot of times, clients come to me when the horse is out of the
barn and they have a problem,” Campbell says. “And in many cases
they didn’t see the importance of bringing local elected officials
in on their plans.” In such cases, officials might first hear about
a project from its opponents, so they’d already developed ideas
about the value of the project when they finally hear about it from
the developer in a meeting.
That is why it is generally “important to try to work with the community
you are in, the city staff and elected officials, and try to work
and be cooperative with the neighborhood you are in,” says Koslovski.
“That is not always possible. It’s good to try to be cooperative,
but if you can’t, it’s important to give all the facts that support
your development, so they’re there for a judge to look at later.”
Peter Downs is a free-lance writer and editor of Construction
News & Review. |
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