The Real Estate Espresso Podcast When Do Government Denials Become Unlawful?
On today’s show we are asking questions about property rights. Our team has been working on a development site in Utah. The property in question has a broad commercial zoning associated with it. The purpose of zoning is to restrict land use to specific uses that are in line with the city’s master plan. The intent is to ensure that developments of those properties is not in conflict with the stated goals of the city.
At this point we have presented three different site plans to the city that are consistent with the zoning. All were supported by the planning commission. The most recent site plan proposal was approved by the planning commission with a vote of 7-0. But then when it got to city council, it was denied.
Unlike in some other municipalities, this city has delegated the final decision-making authority to the Planning Commission for certain types of applications, including:
- Conditional Use Permits
- Commercial site plans
This means that for these specific applications, the Planning Commission's decision is final and does not require further approval from the City Council, unless it is appealed.
Since our property is zoned commercial, it is unclear that City council should have even played a role in the application according to the city’s own rules.
So the question eventually becomes one of property rights. At what point does the denial of construction on a property effectively become a condemnation of the property, without just compensation. We are truly starting to ask questions about the legitimacy of the repeated denials. Clearly these are risks that a developer takes. But my gosh this feels a bit extreme. On today’s show we are going to take a look at the case law surrounding excessive government interference. Now of course I’m not a lawyer and I don’t play one on a podcast.
As you can see, we’re a little frustrated with the city council and it’s looking like consulting a very experienced land use attorney might be the next step.
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