*This article revisits and updates topics originally explored in Harold A. Ellis, Neighborhood Opposition and the Permissible Purposes of Zoning, 7 J. Land Use & Envtl. L. 275 (1992).
**J.D. 2017, Washington University. The author thanks Professor Daniel R. Mandelker for his mentorship and for his guidance with respect to earlier versions of this article.
NEIGHBOR OPPOSITION TO LAND USE CHANGE is too often a deciding factor in local decision- making. The concern and input of neighbors affected by a proposed land use is an integral component of the zoning process;1 however, local legislators agreeing to the demands of vocal opponents to land use change provides an opportunity for irrational decision-making that courts should reject. This article addresses the question of whether, and when, courts can reject denials of land use change because a decision-making body relied improperly on neighborhood opposition as the basis for its decision.
The problem of neighbor opposition improperly influencing land use decisions might arise in several situations where a local decision-making body has the discretion to reject a proposed use. For example, a board of adjustment or other decision-making body may refuse to grant a variance from the terms of a zoning ordinance where the ordinance creates unnecessary hardship or practical difficulty.2 Similarly, zoning enabling acts invariably grant local decision-making bodies the authority to grant special or conditional use permits according to standards provided in a zoning ordinance. A zoning ordinance will contain provisions enumerating which conditional uses are allowable in different zoning districts and will detail the standards for granting or rejecting those conditional uses.3 Courts presume classifications delineating conditional uses in the ordinance valid and uphold denials if “fairly debatable.”4 A landowner who is not able to get a variance or conditional use permit can seek to amend the zoning ordinance. The adoption or rejection of a zoning amendment by a local government is generally held a legislative act,5 and courts address refusals to rezone by presuming the decision was constitutional and upholding the refusal as long as its wisdom is fairly debatable.6 In each of these cases, there is the possibility that the decision-making body refuses an applicant a proposed land use primarily in response to neighborhood opposition.
Neighbor opposition also commonly arises where a developer seeks approval of a planned unit development.7 This is a development approved after the comprehensive review of project design and can include a variety of project types, including infill developments, housing developments, and mixed-use developments, such as master-planned communities.8 Changes in use and density required by these projects may often lead to opposition that leads to project defeat.9