Attorney: Errors in Rezoning Process

RIDGEWAY (Nov. 3, 2016) – An Oct. 18 work session with attorney Danny Crowe reinforced what Town Council had acknowledged during their regular meeting just days earlier – that errors were made in a recent rezoning request, and that Council has some undoing to do.

The original request came last summer from Russ Brown, who was looking to rezone .82 acres at the fork of highways 21 and 34 from R1 residential to C2 commercial. That request cleared the Planning Commission by a 5-2 vote on July 12. But when Council took the matter up for first reading at their Aug. 11 meeting, it was discovered that the property did not meet a 2-acre minimum requirement for C2. Councilman Heath Cookendorfer suggested, and Brown agreed, to amend the request to a C1 zoning, which passed first reading 3-2.

Second reading on Sept. 8, which came on the heels of a formal protest by nearby property owners, failed 1-3, as Council members struggled with the definition of “contiguous,” what constituted a three-fourths vote of Council (which is required in the event of a protest) and if the protest itself should have been made in July before the Planning Commission.

Crowe confirmed that the protest was indeed valid as it was signed by the owners of at least 20 percent of the properties contiguous to the Brown lot. Crowe defined “contiguous” as property touching, or that would be touching the Brown lot were it not for a road or a body of water.

And while “contiguous” is good enough for a protest, Crowe said rezoning a property requires something more, per the Town’s ordinances. For a property to be rezoned, he said, it must be an extension of an existing district boundary, and that means the property must physically touch another property with the zoning classification for which the property owner is applying.

In which case, Brown’s rezoning efforts may have been wasted over the last several months.

“The big caveat on all that is that’s my opinion,” Crowe told Council. “You could probably find another lawyer who had a different opinion.”

Council’s vote on a C1 classification, after the Planning Commission had approved a C2, was invalid, Crowe said.

“As I see it, the Town Council could really only consider, up or down, the recommendation of the Planning Commission,” Crowe said. “It could not include in a lesser included zoning or come up with another zoning, but had to act on the recommendation of the Planning Commission, because that was the matter that the planning commission had considered, whether it could be C2.

“You’re left with a situation where Council is voting on a C1 zoning that had never been before the Planning Commission,” Crowe said. “In my view, that is an error. Also the Council never voted, up or down, on the C2 recommendation that came from the Planning Commission. There’s still time to do that. There’s no time limit on that.”

Crowe said Council would need to withdraw the C1 vote, then send the matter back to the Zoning Administrator to determine if Brown’s property meets the minimum acreage requirements for C2. And since Brown’s property is less than 2 acres, it would not meet that minimum – except . . .

“That creates a little bit of a wrinkle,” Crowe said, “because that’s a request by Council and not by the owner, so the minimum acreage provision would not apply in that situation.”

Contiguous property owners wishing to protest would have to file new papers, Crowe said, protesting a C2 classification, in which case second reading of the rezoning would require four votes.

Council is expected to take the matter up once again at their Nov. 10 meeting.