Fighting Hotel Zoning

Visitor Question: My neighborhood has changed considerably over the years. I live in a residential community that allows hotels; however, there is only one hotel and there has only been one hotel for more than 20 years. Recently, hotels are considering our community since it is the last undeveloped section of the resort community and it is on the water.

We want to fight the zoning that allows this use. The demographics show that our community has changed but hotel owners cite the fact that in 1920 there was hotel in our community. Residents are getting push back that removing the hotels is a taking. Any recommendations on research we can do to offset these arguments?

Editors' Reply:
Let's assume for purposes of answering this question that you are in an incorporated community that has a zoning ordinance.

If so, we certainly sympathize with your dilemma. If you and your neighbors are like most of us, we feel entitled to whatever peace and quiet the existing conditions in our communities afford.

Having said that, we have to tell you that the fact that there has been only one hotel for more than 20 years doesn't make any difference legally. Emotionally yes, it could matter a lot to people who are comfortable with the way things have been. But it doesn't help you fight the already existing hotel zoning.

Similarly, we have to say that the amount and the ways that your neighborhood have changed over the years may not be relevant either, again from a legal standpoint.

You seem to imply that the neighborhood has changed by becoming more and more residential, and that could count for a small amount if your city gets sued because it undertakes what is called a downzoning program to lessen the intensity of land use that would be permitted in your neighborhood.

We mention the city being sued in the previous paragraph because that is exactly what is likely to happen in the event that longstanding zoning districts are altered without a sufficiently compelling and objective study about why that action is considered appropriate and necessary.

If you as residents know that some hotels are thinking of locating there, it may already be late to begin a sufficiently objective study of whether this is advisable, but it's certainly worth a try. If we were in your shoes, we would try to convince the city to start this study right now.

This means they will need to engage a planning consultant, most probably, unless the planning staff is quite experienced, qualified, and independent from political influence.

Your question doesn't tell us who is pushing back against residents. If your city government is telling you that the rezoning (and downzoning, to help you learn to use proper zoning terminology) may be a taking, that tells you that the government probably already is listening to the city attorney and making up its mind not to downzone.

If it is the hotel industry that is pushing back against residents, threatening that any downzoning would be a taking, that's another story.

We don't like saying this, but in the current legal environment, it's really possible that if your city downzoned property zoned for hotels to single-family residential use, courts might consider that such a severe curtailment of property value that it would be a taking.

Until recently, most courts tended to regard a governmental action as a taking only if all possibility of using a property to produce income had been removed--for instance, by saying through zoning that the property had to remain forever unbuilt.

If your city downzoned to residential, it wouldn't be a taking under that older way of thinking.

But now property rights thinking is so strong that going from a reasonable expectation that one owned property destined to a hotel to the potential for only a single-family home might be considered by a court to be a taking. For those not clued in to this conversation as much as you are, that just means that the government would be required to provide monetary compensation to the property owner because it is "taking" property value.

After this general discussion, what we can say is that residents and the city need to put their heads together and work with consultants and the city attorney to see if there is any way that the downzoning can be made reasonably lawsuit-defensible. Because probably the city would be sued, and defending the suit surely wouldn't be a slam dunk. If the city loses, you have to understand it could cost millions of dollars in damages and in legal fees.

So get expert help quickly. Some states have a vested rights theory, so the more money a hotel has invested in checking out properties in your city, doing surveys, preparing engineering or architectural drawings, and the like, the worse the outcome would be if there were a lawsuit.

Good luck to you.

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