Visitor Question: Is it necessary for a municipality to explicitly state its legislative intent when amending its zoning code?
A municipality has indicated that it wants to encourage adaptive reuse of institutional buildings, in particular a defunct church for which condo land development is proposed.
The municipality has drafted an amendment to its ordinance on nonconforming uses which would allow such a conversion by conditional use, but nowhere does it state the legislative intent. Are there any potential pitfalls to not being explicit about the objective?
Strictly speaking, it isn't "necessary" for a municipal governing body, such as a city or town council, to state their legislative intent when they change the zoning ordinance.
Making the legislative intent clear, though, probably would help, perhaps a lot, in the event of a lawsuit challenging the municipal action.
Legislative intent is a term that may be unfamiliar to some readers, but think of your city council as "legislators." So legislative intent is simply the rationale--stated and sometimes not stated explicitly--for certain changes.
Notice that we said that legislative intent maybe does not have to be shown through a nice, neat, eloquent statement included in the resolution or ordinance or law enacting the zoning change.
Legislative intent might be supported in court by oral statements that council people make in response to the public hearing. Conceivably it could be shown by asking that certain items be entered into the public record.
For the best possible showing of legislative intent, however, it is still a good idea to write good succinct statements of that intent into the resolution by which the zoning law is changed.
The pitfall of not being explicit is that you may be misunderstood. Particularly at the level of lower courts, the knowledge of zoning and zoning theory may not be all that sophisticated. It's certainly certainly less expensive to do the job right the first time.
Regarding your final paragraph, your terminology may be very accurate for your local situation, but it wouldn't be typical. So please forgive us if we just leave the specifics of that alone.
This leads us to comment on one other point that would be important for all of our other readers. While it's definitely good to show legislative intent if what a governing body is doing would be considered outside the mainstream of good practice in enacting zoning regulations, there could be a different problem: your city could be enacting something like special legislation to support this particular zoning ordinance change.
An overriding principle of good zoning practice is that equal properties should be treated equally under the law. If the facts of the zoning case begin to be so specific that you are setting up something that logically would apply only to this one instance, in all probability, you should be concerned about this.
So the bottom line is to have a detailed conversation about this situation with your municipal attorney.
If you are in or near a metropolitan area where there may be several attorneys or law firms that specialize in municipal law, it can't hurt to obtain more than one opinion about the particular facts of your case as well.
Join in and write your own page! It's easy to do. How? Simply click here to return to Ask a Zoning Question.
Subscribe to our monthly e-mail newsletter, called USEFUL COMMUNITY PLUS, which provides you with short features or tips about timely topics for neighborhoods, towns and cities, community organizations, rural environments, and our international friends. Unsubscribe any time. Give it a try.