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The planning implications of zoning by initiative and referendum

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Title:
The planning implications of zoning by initiative and referendum
Creator:
Sellman, Kathleen Anne
Publication Date:
Language:
English
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67 leaves : ; 28 cm

Subjects

Subjects / Keywords:
Zoning law -- United States ( lcsh )
Zoning law -- Colorado ( lcsh )
Zoning law ( fast )
Colorado ( fast )
United States ( fast )
Genre:
bibliography ( marcgt )
theses ( marcgt )
non-fiction ( marcgt )

Notes

Bibliography:
Includes bibliographical references (leaves 64-67).
General Note:
Submitted in partial fulfillment of the requirements for the degree, Master of Planning and Community Development, College of Design and Planning.
Statement of Responsibility:
by Kathleen Anne Sellman.

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Source Institution:
University of Colorado Denver
Holding Location:
Auraria Library
Rights Management:
All applicable rights reserved by the source institution and holding location.
Resource Identifier:
10974578 ( OCLC )
ocm10974578
Classification:
LD1190.A78 1984 .S44 ( lcc )

Full Text


THE PLANNING IMPLICATIONS OF ZONING
BY INITIATIVE AND REFERENDUM
by
Kathleen Anne Sellman
A paper
submitted in partial fulfillment of the requirements for the degree of Master of Planning and Community Development The University of Colorado at Denver May 1984


My Thanks
to
Professor Herb Smith who apparently believed all along that I would finish this paper
to
Nicki Stoner
for applying gentle pressure;
and most of all, to my husband, Mike for his love and patience throughout this project


TABLE OF CONTENTS
Page
INTRODUCTION: PURPOSE AND METHODOLOGY i.
SUMMARY.........................................................iii.
CHAPTER ONE
ZONING AND LAND USE DECISION MAKING
HISTORY AND NATURE OF ZONING 1
Nuisance law..................................................... 1
Restrictive Covenants ............................................ 2
Early Ordinances ................................................. 2
Distinction between zoning, planning and other devices ... 4
LEGAL BASIS FOR ZONING............................................... 6
Standard Zoning Enabling Act ..................................... 6
The Character of Zoning .......................................... 9
Legislative Nature .............................................. 10
Quasi Judicial Nature.............................................11
Administrative Nature.............................................13
THE "TAKING ISSUE"...................................................15
DUE PROCESS AND EQUAL PROTECTION ................................... 16
RIGHT TO TRAVEL......................................................18
ARBITRARINESS ...................................................... 19
PROTECTION OF ECONOMIC INTEREST .................................... 19
PROPERTY VALUES .................................................... 19
CHARACTER OF THE NEIGHBORHOOD........................................21
SPOT ZONING..........................................................21
EXCLUSIONARY ZONING ................................................ 22
CHAPTER TWO
THE APPEAL OR~ REVIEW PROCESS........................................23
Standing..........................................................23
CRCP Rule 106 Judicial Review...................................25
The Board of Adjustment Administrative Review ................. 25
Initiative and Referendum Legislative Appeal .................. 26
Countersuit by Developers Against Petitioners ................... 26
CHAPTER THREE
CASE STUDIES.........................................................28
Lakewood..........................................................29
Arvada............................................................33
Greenwood Village .. ............................................ 36
CHAPTER FOUR
PLANNING IMPLICATIONS OF THE EXISTING SYSTEM AFTER MARGOLIS,
YANZ, AND WRIGHT
REFLECTIONS ON TRENDS .............................................. 40
David Miller: American Civil Liberties Union .................... 40
Colorado State Legislature 1984 - SB 194.........42
Colorado Municipal League ....................................... 43
Coping with Citizen Participation in Land Use Decisionmaking 45
Neighborhood Planning ........................................... 46
Neighborhood Referral System .................................... 55


CHAPTER FIVE: CONCLUSIONS
BIBILIOGRAPHY ...........
APPENDIX ................
page
59
64
67


INTRODUCTION AND METHODOLOGY
My purpose in researching and developing this paper is to investigate the zoning concept, trace its development and legal basis, and examine the recent trend of citizen challenges to local government land use decision-making, specifically as it affects planning.
My assumption is that local government policies and programs affect the nature of citizen participation in land use decision-making. As a neighborhood planner for the City of Aurora, Colorado for the past four years, I have been involved in the zoning process as a project manager, as a neighborhood liaison/consultant, and as an observer. During the same period, I have served as an elected Trustee in the Town of Bennett, Colorado, and as the Town's Planning Director. This juggling of roles has afforded me the opportunity to experience "zoning" from a variety of perspectives. Needless to say, I have begun to develop some strong ideas about the topic itself, its purposes, and the processes through which it is carried out.
My research has both formal and informal components. I have found that some of my most valuable insights have resulted from "shop talk", particularly with Bob Rogers, Frank Mizner and Peter Grossheusch, as well as other staff of the City of Aurora. The original suggestion for this topic came from Frank, thus ending, or perhaps beginning, one period of my academic and professional search.


11.
Over a period of thirteen months, beginning in March, 1983, I conducted a survey of the planning and legal literature which was relevent to zoning, citizen initiative and referendum, recent court decisions in the State of Colorado and elsewhere, and a series of
r-X
interviews with local planners whose nunicipalities have experienced the "citizen thing". I continued to feel that something was missing from my information until a few weeks ago when I concluded that it might not be the information itself which was incomplete, but instead the accepted concept of property rights.


SUMMARY
Present zoning law derives from the nuisance lawsuits of Elizabethan England and the restrictive covenants of the mid-eighteen hundreds. New York City established the nation's first comprehensive zoning ordinance in 1916 and municipalities nationwide quickly followed suit for the purposes of lessening congestion in the streets, to secure safety from fire, panic and other dangers, to promote health and general welfare, to promote adequate light and air, to avoid undue crowding of the population, and to facilitate adequate provision of public facilities and services. Zoning, like other nuisance laws, was viewed as a legitimate exercise of the police powers of the state, restricting personal property use, but offering no public compensation.
Through comprehensive planning, a concept of the probable future is developed to provide public decisionmakers with a sound basis for policy formulation. Court decisions since the time of Euclid v. Ambler Realty, in 1926, have agreed that zoning is the appropriate tool for implementing community goals as established by planning.
The Standard Zoning Enabling Act, which delegates zoning power


iv
from the state to local governing bodies, has endured since the 'Twenties and provides the basis for zoning ordinances nationwide.
Unique to the zoning concept is that its requirements differ from district to district instead of being uniform throughout the municipality. Within the districts, zoning regulates the height and bulk of buildings, lot area which may be occupied, size of required open spaces, population density, and use of buildings and land, without regard to the ownership of the property or who may be the operator of the use.
In addition to uniformity within districts, the zoning ordinance must 1) include a reasonable basis for classifying a particular area differently from others; 2) cover the entire jurisdictional area of a municipality; and 3) be reasonably related to its stated purpose.
Land use decisions must further adhere to procedural requirements imposed by state statutory and constitutional provision for adequate notice and public hearing.
Through the years, zoning has been categorized as legislative, administrative, and quasi-judicial, depending upon the specific application. It has been observed that since the power to zone has been granted by the state for the public good, then zoning is a legislative act.
Still, other states hold that an amendment to the zoning map is quasi-judicial because of the formal hearing and fact-finding procedural requirements, and because existing policy is being applied to a specific factual setting.
In yet another zoning action, the Board of Appeals, established in the enabling legislation, hears and decides appeals from the enforcement of the requirements of the ordinance an administrative


function. So, the precise character of zoning is various, and, at times ambiguous.
Several constitutional and other issues have arisen over the years: the taking issue, due process, equal protection, the right to travel, arbitrariness, protection of economic interest, property values, 'character of the neighborhood', 'spot zoning', and exclusionary zoning.
The appeal or review process varies with the nature of the zoning action being questioned. Where the action is legislative, citizen initiative and referendum are available. A quasi-judicial action can be reviewed under CRCP Rule 106 by the district court; and the Board of Appeals can hear and review appeals from any order, requirement or decision made by an administrative enforcement official.
Any interested landowner has standing to appeal a zoning decision, and recently, neighborhood organizations have been granted standing as well.
The recent Colorado Supreme Court decision in the Margolis /
Wright / Yanz cases, held rezoning to be a legislative act, and thus subject to referendum. This decision has precipitated a number of referenda in local municipalities, forcing local planning agencies to re-evaluate the whole zoning process. Developer initiated harrassment suits have likewise probably caused citizen-petitioners to think twice.
In response to the court's ruling, SB 194, a product of the Colorado legislature's 1984 session, seeks to statutorily define rezonings as quasi-judicial, eliminating the initiative potential and severely restricting future referenda. Although it has passed


both Houses, intense neighborhood lobbying for a gubernatorial veto makes the bill's future uncertain.
In any case, new strategies may be necessary to deal with increasing citizen / neighborhood desire to more actively participate in land use decision-making. The City of Aurora, Colorado, which has to date been free of initiative / referendum squabbling, has an active neighborhood planning program and an aggressive neighborhood referral process for all land use change applications.
New strategies and new philosophies may be required to cope with increasing citizen demands for a more formal role in today's zoning and land use decisions.


CHAPTER ONE
V*
Zoning and Land Use Decisionmaking
Zoning is the regulation by a local government of the use of land within the coraiunity, and of the buildings and structures which may be located thereon, in accordance with a general plan, and for the purposes set forth in the enabling act. The forerunners of zoning were the so-called nuisance regulations which governed uses such as livery stables, tenements, theaters,animal slaughter facilities, factories, and signboards on the grounds that they presented a nuisance or a hazard to adjacent property owners.
Nearly all American regulation of land use has been based upon the police power. Norman Williams, in American Planning Law, identifies three types of legal tools which have traditionally been used to regulate the use of land and structures. All three relate to the interdependence of land use "The obvious fact that one landowner cannot really enjoy the use of his land without having some control over the activities and structures on nearby land." (Williams 1974) The three tools are nuisance lawsuits, restrictive covenants, and, finally, zoning. (Williams 1974)
/
/
Nuisance lawsuits arose out of the cannon law maxim to use one's land so that no harm is done to another's. They date back to Elizabethan England and were originally designed to deal with the typical
1


2
land use conflicts of their time obnoxious odors, dunping on adjacent land and so on. In nuisance actions, no actual physical invasion occurs.
Restrictive covenants are land use controls deriving from private agreements which mutually restrict the use of land. The covenants developed primarily in the 1SQ0 's as a way to provide subdividers with a method to regulate the long range use of their land to insure its value and attractiveness for resale. In the absence of covenants or sanctions against conrnon law nuisances, the use of land, and the bulk, type and design of buildings located there resulted solely from market influences.
Zoning is land use control developed by public legislative bodies through ordinance or statute. The zoning concept appeared as a response to congestion resulting frctn the characteristic of increasing urban densities in the early twentieth century United States. The zoning ordinance separates incompatible land uses, comprehensively assigning compatible land uses to zoning districts throughout the conmmity.
Zoning is an extension of the earlier nuisance doctrines developed by the courts. Throughout the years, the courts had affirmed that the invading use was usually ccmnercial or industrial. They had recognized the value of preserving established residential areas through prohibiting the location of offending uses in residential neighborhoods. Zoning, like other nuisance laws, was veiwsd as a legitimate exercise of the police powers of the state, placing substantial new restriction on the use of personal property without offering public compensation. (Nelson 1977)


3
The comprehensive zoning ordinance ratifies this land use structure. It divides the municipality into a number of zones, with the major classifications separating residential, earnercial and industrial uses. Residential uses are located at the top of the land use pyramid, with conmercial and industrial uses following. Zoning ordinances were originally accumulative. They allowed "higher loses" in the less restrictive "lower" zones. Most modem zoning ordinances are not cumulative (Mandelker 1982).
The effect of prohibiting certain uses in the locations occupied or permitted to be occupied by "higher" uses (primarily residential), was to categorize them legislatively as nuisances and render them subject to injunctive restraint without the necessity of providing the elements of public or private nuisance. The designation of the loses as nuisance in the particular location in the ordinance substituted for the proof of nuisance previously required (Rathk opf 195]),
The Supreme Court's first review of zoning legislation, Village of Euclid v. Ambler Realty Co., in 1926, followed by ten years New York's comprehensive zoning ordinance.
The first comprehensive zoning ordinance in the nation, the Zoning Resolution of the City of New York was rapidly imitated for style, content and format 'in numerous other states, among them Massachusetts, Louisiana, New York, Illinois, Minnesota, Wisconsin, Kansas, California, Rhode Island, New Jersey, and Texas, and these state courts held the comprehensive zoning ordinances to be constitutional prior to Euclid. The Supreme Court's Euclid decision affirmed that
the zoning power is part of the police power of the several states (Seneker 1974).


The characteristic feature of the zoning ordinance that distinguishes it from most other regulations is that it differs from district to district instead of being uniform throughout the municipality. This is in contrast to building codes which normally apply to all buildings in a given category regardless of location (Goodman
v*
and Freund 1968). Within the districts, zoning regulates the height and bulk of buildings, the area of the lot which may be occupied, size of required open spaces, population density, and use of buildings and land, without regard to the ownership of the property or who may be the operator of the use (Rathkopf 1981).
Nuisance law and early zoning ordinances had in conrnon the goal of preserving existing residential neighborhoods, providing protection from vises which threaten to reduce the quality of neighborhood environment, or, as the Douglas Conmission on Urban Problems stated in 1968: "The purpose of zoning becomes, in effect, to keep anyone from doing something on his lot that would make the neighborhood a less enjoyable place to live or make a buyer less willing to buy" (Nelson 1977).
Distinction between Zoning, Planning and Other Devices
The appropriate location of various uses depends upon physical facts, economic factors, and public facilities. Planning and land use controls (zoning) are concerned with generally the same subject.
Although early zoning ordinances were adopted without planning, the Standard Zoning Enabling Act, the point of reference for early zoning legislation, refers to a "comprehensive master plan." It is unclear specifically to what this might refer, beyond the suggestion


5
that there "was, or should be, a relationship between the various existing and proposed physical features of the municipality, such as streets, highways, parks, public buildings, schools, institutions, bridges, and the zoning districts therein" (Rathkopf, 1981)
The purpose of planning is to provide public officials with sound advice on how to deal with current problems. One basic element of this has been to develop a concept of the probable future. Planning is concerned with the interrelationships and distribution of land uses, not only the physical manner in which land is developed, but the manner of its lose (activities and functions), the existence of municipal facilities to accomodate such use, as well as the various related economic and social problems and programs. Planning provides a necessary basis for resource distribution decisionmaking, with basic policy decisions preceding the selection of tools required for implementation.
The courts have been unanimous in declaring that zoning is the tool by which the agreed upon objectives of the comnunity, as established by planning, are implemented (Rathkopf 1981). A zoning ordinance, allocating the comnunity's land for the major functions to be performed there, should follow both quantitative (how much land is needed) and qualitative (what is the relative value to the community of each land use) assessment to ensure that needs are met and resources are wisely used. (Williams 1974).
Zoning does not regulate the materials and manner of construction of a building. This is a function of the building code.
Zoning does not designate location of streets, installation of utilities, or dedication of public land for streets, parks, schools. These are generally covered by subdivision regulations.


Zoning cannot ordinarily be used to set minimum costs or to control aesthetics. This is normally a function of restrictive covenants. Historic district designation, however, does rest on aesthetics because the purpose of the district is to maintain its aesthetic character (Mandelker 1982) and rests on public benefit rather than nuisance prevention.
Zoning is largely ineffective as a method for correcting existing problems. Its focus is toward a coherent pattern of future development.
Legal Basis for Zoning
Standard Zoning Enabling Act
The Standard Zoning Enabling Act was drawn up in the 1920's by Edward M. Bassett, Frank B. Williams, and Alfred Bettman under the auspices of the United States Department of Commerce (Williams 1974).
The Act was adopted at one point in all 50 states and is still in effect (with various modifications) in all but Kentucky, Vermont, and Pennsylvania. Mcst of these 47 states authorize municipalities to zone but it is not mandatory to do so.
The Principle concepts of the Standard Act are:
1. Section 3 Statement of purposes, together with the comprehensive plan doctrine;
2. Section 2 Authorization to create districts, together with the uniformity requirement;
3. Section 1 List of approved devices;
4. Section 7 Establishment of the board of adjustment and definition of its three standard powers (interpretation, special permits, and variances)(Williams 1974).


7
Remaining sections of the Act define and outline procedural elements.
Over the approximately sixty years since the framing of the Act, the states have provided for variations from the original. These variations mainly concern:
a) Governmental units authorized to zone municipal, county, regional and special units;
b) Statutory purposes;
c) The conprehensive plan requirement;
d) Creating districts and establishment of powers within districts;
e) Devices authorized;
f) Treatment of nonconforming uses;
g) Interim zoning;
h) Powers of the Board of Adjustment O'h-lliams 1974).
The "Grant of Power in Section I of the Standard Zoning Enabling Act authorizes the local legislative body
to regulate and restrict the height, number of stories, and size of buildings and other structures, the percentage of lot that may be occupied, the size of yards, courts, and other open spaces, the density of population, the location and use of buildings, structures, and land for trade, industry, residence or other purposes (Mandelker 1982).
The purposes of local zoning are outlined in Section 3:
Purposes in View. Such regulations shall be made in accordance with a conprehensive plan and designed to lessen congestion in the streets, to secure safety from fire, panic and other dangers; to promote health and the general welfare;


to promote adequate light and air; to prevent the overcrowding of land; to avoid undue concentration of population; to facilitate the adequate provision of transportation, water, sewerage, schools, parks and other public requirements. Such regulations shall be made with reasonable consideration, among other things, to the character of the district and its suitability for particular uses; and with a view to conserving the value of buildings and encouraging the most appropriate use of land throughout such municipality (Mandelker 1982).
The Standard Zoning Enabling Act in Sections 4 and 5 authorizes the local legislative body to "adopt and amend zoning 'regulations and restrictions and...[district] boundaries'" (Mandelker 1982) but does not provide the statutory standards to guide those processes.
Section 2 of the Standard Act details the districting concept and instructs that the local government establish
districts of such number, and shape and area as may be deemed best suited to carry out the purposes of this act; and within such districts... to regulate and restrict the erection, construction, reconstruction, alteration, repair, or tase of buildings, structures, or land (Mandelker 1982).
Williams notes how remarkable it is, indeed, that this law, drafted in the 1920's, has endured and serves to authorize the many new control devices such as density zoning, vise of bonuses, amortization of nonconforming uses, off-street parking and loading requirements, cluster developments, and planned unit developments. Per-


9
haps equally remarkable is the fact that all the states use essentially the same enabling legislation. This conmon statutory root for local zoning makes court decisions on zoning broadly applicable across the country.
The Charac ur of Zoning
Zoning is an exercise of the basic power of the state and its political subdivisions to enact legislation protecting the public health, safety, morals, and general welfare of its citizens. Through the police power, zoning ordinances take away certain rights normally associated with property ownership and no compensation is paid. The owner of zoned property shares in the benefits which are available to all resulting from zoning protection and this itself provides a form of compensation (Williams 1974).
Each regulation in the zoning ordinance must bear a reasonable and substantial relationship to these ends.
The power to zone is customarily delegated and restricted by the state through an enabling act to local governmental bodies. A governmental subdivision must, then, demonstrate that its zoning ordinance meets not only constitutional standards, but also the legislative requirements of the state as to substantive provisions and the procedures followed in its enactment and administration (Goodman and Freund 1968). In addition, procedural requirements beyond those required by the state may be established by local governments.
State restrictions and the courts have limited legislative zoning ability to include:
-that within a district, the regulations must be uniform for each class and kind of building;
-that there be a reasonable basis for classifying particular


10
areas differently frccn others;
- that an ordinance cover the entire jurisdictional area of the municipality; and
- that regulations be reasonable and that property should not be zoned for a use which it cannot physically accomodate (Goodman and Freund 1968).
In addition to the substantive standards, land use determinations must adhere to the procedural requirements imposed by state statutory and constitutional provisions for adequate notice and public hearing.
The Standard Zoning Enabling Act authorizes the local government to provide for the amendment of the adopted zoning ordinance. Typically the state ordinances make provision for the local governing body to anend the text and the map of the zoning ordinance. The map amendment changes the rules, in effect, by moving a parcel of land from one classification into another.
The State Zoning Enabling Law Only Grants the Governing Body of a Municipality the Power to Zone and Rezone as an Exercise of Legislative Power
The amendment process traditionally is carried out by the local governing body; it has been described as legislative in nature and thereby entitled to a presumption of constitutional validity. This presumption is an important factor because its consequence is that the party attacking a zoning ordinance has the burden to prove it is unconstitutional. The court will accept the policy expressed by the regulation unless it is clearly unreasonable.


11
The grant of the zoning power to municipalities indicates that the State has granted the municipalities the right to zone by legislation. It allows zoning "for the purpose of promoting health, safety, morals, or general welfare of the comnunity- The State Act declares that zoning is "to promote health and general welfare". This language confers legislative authority, not judicial. One acts legislatively for the general public good; one does not necessarily act judicially in the same broad, general
manner (Kahn, 1980).
Additionally, the State Act
which permits changes in zoning regulations, contains a a provision by which the landcwners affected and the neighboring landowners may demand a three-fourths (3/4) vote of zoning body to approve the rezoning. Such a procedure is inconsistent with a judicial determination where the rights of an individual are being determined. It shews that zoning and rezoning always affect a class of people in a general way and, therefore, must be considered legislative activity.
Indeed, zoning that is done on an individual basisjudicial zoningis spot zoning and is illegal and void. (Kahn 1981).
The &iasi Judicial Process of Zoning Particular Tracts of Land is Not a Legislative Matter and Is Thus Not Subject to the Referendum Power.
Still other states hold that an amendment to the zoning map is an adjudicative and quasi-judicial act, rather than a legislative act. When a court holds a rezoning quasi-judicial the presumption of


12
constitutionality no longer applies and the burden of proof is on the local governing body. That body must also adopt formal hearing procedures for zoning amendments and must make adequate findings of fact.
In Cooper v. Board of County Carmissioners (1980) the Idaho Supreme Court noted an unusual justification for the quasi-judicial position:
The great deference given true legislative action stems from its high visibility and widely felt impact, on the theory that appropriate remedy can be had at the polls.. This rationale is inapposite when applied to a local zoning body's decision as to the fate of an individuals' application for rezone. Most voters are unaware or unconcerned that fair dealing and consistent treatment may have been sacrificed ... (Mandelker, 1982).
In Neuberger v. City of Portland (1979) the court "noted that a land use decision is quasi judicial when a particular action by a local government is directed at a relatively small number of identifiable persons and when that action also involves the application of existing policy to a specific factual setting, (in Mandelker, 1982) and finally, a rezoning would also be quasi-judicial if "the process is bound to result in a decision". (Mandelker 1982).
In Snyder, the Court held that while the passage of the general zoning ordinance is legislative, "the enactment of a rezoning ordinance pursuant to the statutory criteria, after notice and a public hearing constitute(s) a quasi-judicial function....". (Snyder 1975).
The Snyder decision was followed in the subsequent case of Corper v. City & County of Denver, 191 Colo. 252, 552 P.2d 13 (1976). In this
case the Court held that the zoning amendment procedure utilized by


13
Denver was quasi-judicial in nature/ even though the City's ordinances referred to rezaning actions as "legislative.
Three factors the Court in Snyder thought essential to a finding that the action of a municipal legislative body is quasi-judicial are:
(1) a state or local law requiring that the body give adequate notice to the community before acting; (2) a state or local law requiring that the body conduct a public hearing, pursuant to notice, at which time concerned citizens must be given an opportunity to be heard and present evidence; (3) a state or local law requiring the body to make a determination by applying the facts of a specific case to certain criteria established by law. Snyder (1975).
administrative Nature of Zoning
An administrative zoning function was designed into the Standard Zoning Enabling Act in its Board of Adjustment also kncwn as zoning board of adjustment or board of appeals. This municipal body visually is empowered as follcws:
(1) to hear and decide appeals where it is alleged that there is an error in any order or decision of an administrative official e.g. a zoning officer or building officer; (2) to hear and decide special exceptions;
(3) to authorize variances frcm the terms of the zoning law.
(Rose 1980).


14
The Standard Zoning Enabling Act is ambiguous with regard to the precise nature of the variance. It is not clear from the language of the Act whether variances may be granted "to change the use to which the property may be used or whether variances are limited to changes dealing with the relation-ship of the bulk of the proposed structure on the lot.
(Hose 1980).
"Unnecessary hardship" is the standard to which the Board of Adjustment looks in evaluating the likely outcome of literal zoning ordinance enforcement. Certain criteria have repeatedly been reaffirmed by the courts in dealing with the definition of the "unnecessary hardship" concept:
(1) mere inconvenience is not sufficient;
(2) reduction in value, alone, is not sufficient;
(3) inability to put the property to its most profitable use does not constitute "unnecessary hardship"..;
(4) the problem must be caused by the ordinance and not by the owner or seme person;
(5) a shewing that the land could not be used for any purpose for which it is reasonably adapted does constitute "unnecessary hardship". (Rose 1980).
Additionally the Board must conclude that the variance is in the public interest and complies with the spirit of the
ordinance.


15
The Taking Issue
The fifth amendment to the U,S. Constitution provides that "private property (shall not) be taken for public use, without just compensation. The taking clause is applicable to the states under the fourteenth amendment and this raises a major question for land use regulation.
A complete restriction cn the right to use is a taking.
A local government can restrict the use of land under the police power without compensation. A restricted landowner can argue that a taking without just compensation has occurred when a land use regulation excessively restricts use of his land without compensation.
There does not appear to be clear concensus among the courts regarding the proper interpretation of the taking issue. Where a regulation is so restrictive that the owner is precluded from making economic use of his property, it is sometimes stated that a "taking" or "inverse condemnation" has occurred. (Seneker 1974 ).
Two judicial tests, "balancing" and "benefit-burden" have been applied to determine when regulation equals a taking. The "balancing" test dates to 1922, the case of Pennsylvania Goal v. Mahon 260 US 393 (1922) in which Justice Holmes noted that the "general rule at least is, that while property may be regulated to a certain extent, if regulation goes too far it will be recognized as a taking". (Seneker,1974 and Mandclker 1982). The balance involved is whether the regulation so impairs private property values as to outweigh any corresponding public benefit.
The "harm-benefit" theory essentially is that compensation is required where the governmental action is taken to extract benefits for the


16
public, while canpensation is not required where the action is taken primarily to prevent public harm or nuisance. (Mandelker, 1982J.
Ihe courts have been divided as to how much decrease in value must occur before a taking happens. Sane have held that a landowner must be left with no reasonable use of the land before a taking occurs. They have also held that when the government acts in its enterprise capacity, without taking title to property involved it places an undue and uncompensated burden upon a landowner for the public good that a taking has occurred. Zoning ordinances adopting the traditional land use classifications are relatively well protected fron talcing. Landowners may only attack a zoning classification "as applied to their property". (Mandelker 1982). The courts must then determine whether the economic loss involved is a taking.
Due Process and Equal Protection
The constitutionality of an ordinance or amendment must be determined by whether it infringes on the constitutional prohibition against deprivation of property without due process of law or the denial of equal protection. There are two kinds of due process: substantive and procedural.
The substantive limitations are restated in state zoning legislation with regard to the police power. Whether land use regulation serves the general welfare is the principal question. (Euclid) (Mandelker 1982).
The constitutional due process procedural limitation requires the availability of acceptable procedures in the government decisionmaking


17
process. This requirement relates primarily to administrative decisions (such as board of adjustment decisions). Sane state courts, including Colorado, new impose procedural due process requirements on the legislative zoning proceedings of local governments. (Belle Terre) (Mandelker 1982).
"Equal protection of the laws" is contained in the Fourteeneth amendment of the federal constitution and in many state constitutions.
Two requirements of the principle of equal protection are: (1) no law may unduly favor one group over another; and (2) no law may impose a hostile discrimination on any particular group. (Rose, 1980).
Since land use regulation classifies land uses, it raises an equal protection question. Equal protection claims may be of two kinds:
- objection to classifications between land uses in the zoning ordinance text;
- objection to the land use classification made by the zoning map.
The courts responses to the equal protection claim is that legislative classifications be reasonably related to a legitimate public objective, and to the means used to accomplish the legislative purpose. (Mandelker 1982). This is similar to the standard applied to "due process" objections.
Hie courts have also applied a second test, called "strict scrutiny". This test is applied only in cases involving a fundamental right (such as the right to vote) or a suspect classification (based on an inherently involved standard, such as race) (Rose, 1980). If neither a fundamental right nor suspect classification is involved, then the rational basis test (above) applies.


Right to Travel
18
Not contained in the U.S. Constitution but developed over time by the courts through their rulings is the right to travel. In 1965, the Pennsylvania Supreme Court was the first to directly confront the conflict between land use regulation and residential mobility. In the case of National Land and Investment Company v. Kohn, the court overturned four acre minimum lot size zoning in Easttown Township (Nelson, 1977).
The growth control issue, as in Golden v. Planning Board of Ramapo (1972) and Construction Industry Association of Sonoma County v. City of Petaluma (1974) leans heavily on the grounds they openly restrict, personal residential mobility (Nelson, 1977). In its written opinion, the court "observed that the Petaluma plan constituted an effort avoid the problems that accompany contemporary trends in population growth and that the actual effect of the plan was to exclude substantial numbers of people from the city. The court could find no "compelling interest" sufficient to justify the resulting restriction on numbers of new residential units to be constructed annually. Alternative solutions such as expansion of sewage treatment facilities and water supply systems had not been sufficiently attempted. Therefore, the court concluded, a "municipality capable of supporting a natural population expansion may not limit growth simply because it does not prefer to grow at the rate which would be dictated by prevailing market demand".
(Seneker, 1974).


Arbitrariness
Whether an ordinance is arbitrary depends upon its substantial relation to the furtherance of any of the general objects mentioned in the enabling act.
"It will be set aside only where the court is convinced that the ordinance involves a mere arbitrary exercise of power having no substantial relation to these objects". (Rathkopf 1981).
A zoning ordinance may be either arbitrary upon its face or arbitrary as applied to a particular property or under particular circumstances. It is necessary that there be legitimate public purpose to enact an ordinance. (Rathkopf 1981).
Protection of Economic Interest
Rathkopf notes, in The Law of Zoning and Planning, that "a zoning ordinance which has among its purposes the protection of economic interests of the general public has been held to be reasonably related to the premotion of the general welfare". Those zoning ordinances, he points out, "which are based in part upon aesthetic considerations have been held to have a reasonable relationship to the preservation of the values of property in the community and therefore, to the community as a whole, and are not arbitrary. (Rathkopf 1981).
Property Values
Zoning regulates the use of land in many cases preventing the more intensive uses which could reasonably be expected to reap higher returns and therefore reducing the property's value. It is usually neighbors


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who feel that it is the function of Zoning to protect property values.
Norman Williams, Jr., in American Land Planning Law further examines the question of what it is which is alleged to reduce property values.
Sane factors which are thought to reduce property values are clearly within the proper province of zoning. For example, a filling
station or a fried chicken drive-in stand on a residential street.
Yet other factors similarly thought to result in a reduction of property values, are clearly outside the province of zoning. The obvious example is the occupancy of houses in the area by members of some minority or ethnic group. In the former case, a prohibition of such an establishment is a perfectly appropriate function of zoning; in the latter case, a prohibition of such occupancy is obviously unconstitutionalt yet both are widely alleged to affect property values. An allegation that something will affect property values says nothing whatever on the subject of whether a prohibition of that something would further the appropriate goals of zoning. In other words, the fact that something allegedly will have an "adverse" effect on property values does not constitute a separate goal for public action; such an effect on property values is purely derivative, reflecting the presence of something else -and the latter is the primary factor. The validity of public action depends in every instance an this primary factor, which must be identified, analyzed, and classified as a valid (or invalid) goal. (Williams 1974).
In a Mississippi case, Ridgewood Land Co., Inc. v. Simons (1962), the court decided that a development including a shopping center and 1200 new hones must provide a buffer of a new street and a row of homes between the proposed shopping center and an existing residential


neighborhood. The court's acceptance of this "buffer" was based on the premise that "it was reasonable to believe that the proposed additional row of new houses would adjust itself to the fact that these were next to a shopping center. What was clear was that in any event no one cared whether (or how) the shopping center was objectionable to the future residents of those houses (Williams 1974). The property values of the existing neighbors were here elevated to a level above any other values.
Character of the Neighborhood
"Character of the neighborhood" is surely one of the most frequently invoked phrases at land use hearings. Williiams observes that "protecting the character of the neighborhood is almost exactly analogous with protecting property values.... The question which always arises is what characteristics?" (Williams 1974). This concept, then, is also a derivative one.
Neighborhood character may be more easily circumscribed than property values. Character is usually accepted to be existing land uses and the conditions which they create. And once so defined, the cluster of characteristics of which it may be composed may collectively support police power regulations, even if individually they may not. However, the "use of the police power should be based upon something more than whatever people are used to looking at"
(Williams 1974).
Spot Zoning
Spot zoning occurs where one or two small parcels are granted


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uses or densities not in accordance with a comprehensive plan.
Amendment to the zoning ordinance should consider the larger community or neighborhood need and not merely the special desires of the landowner/developer/applicant. Spot zoning results overall in a weakened ordinance. A court decision in favor of spot zoning is unlikely since the spot zone is perceived to be arbitrary because it confers a zoning "favor" on a single landowner without justification (Mandelker 1982),
In Burkett v City of Texarkana (1973), the court stated spot zoning "is descriptive of the process of singling out a small parcel of land for a use classification different and inconsistent with the surrounding area, for the benefit of the owner of such property and to the detriment of the rights of other property owners (Mandelker 1982).
"Spot zoning" states Williams,"is primarily an epithet"(Williams 1974).
Exclusionary Zoning
Exclusionary zoning refers to lose of any combination of zoning devices, for example, large minimum lot sizes, miniriun bedroom requirements and prohibition of certain varieties of multifamily residential units, for what the courts interpret to be improper purposes.
The court may find that such restrictions unduly affect certain classes of people. The courts have been particularly sensitive to zoning which may be used to exclude racial minorities.
These are just some of the constitutional and other land use related issues which have arisen in the sixty years of zoning in this country.


CHAPTER TWO
THE APPEAL OR REVIEW PROCESS
Standing
In the state of Colorado, any interested landowner has standing to appeal a zoning decision, and participation in the prior administrative, quasi judicial, or legislative proceedings is not required. The Standard Zoning Enabling Act, in Section 7, authorizes appeals from decisions of the board of adjustment by "persons agrieved and any taxpayer by writ of certiorari".
Landowners residing in the municipality who are adjacent to or close to land on which a zoning agency has allowed a more intensive use are usually held to have suffered special damages sufficient to confer standing....Fear of harmful adverse effects -such as a fear of apartment development, increased traffic, or the aesthetic "blight" created by an adjacent parking lot may not be sufficient (Mandelker 1982).
In Scott v. City of Indian Wells (492 P 2d 1397 Cal. 1972), the district court in California noted that non-resident landowners have standing to challenge the zoning action of another municipality
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which is contiguous or near to their land.
"To hold, under these circunstances, that defendant city may zone the land within its borders without any concern for adjacent landowners would, indeed make a fetish out of invisible boundary lines and mockery out of the principles of zoning" (Scott 1972).
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Additionally, in the same case, the court observed that "individual property interests are often affected by local land use controls and "that municipalities owe non-residents as well as residents a "duty" to hear and consider their views before acting on a rezoning (Mandelker 1982).
A recent national trend over the last decade has been to confer standing to neighborhood and other organizations in a representative capacity.
Douglas ton Civic Ass'n, Inc. v. Galvin, 324 NE 2d 317 (N.Y. 1974) is a leading case conferring standing on a neighborhood association. This case relies on the realities of the zoning litigation process... as the basis for organizational standing. The court noted an economic disparity in zoning litigation. A land-owner who stands to gain from the relaxation of zoning restrictions is not reluctant to engage in litigation to acheive this result. Individual landowners in the neighborhood may not realize the inpact of the change on their property or may not have the finances to effectively oppose the zoning change..'.'By granting the neighborhood and civic associations standing in such situations, the expense can be spread out over a number of property owners putting them on an economic parity with the developer" (Mandelker 1982).
The court listed a number of criteria to be used in evaluating 311 association's standing with regard to its representative nature.


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Included were: "the capacity of the association to assure an adversary position anda requirement that the association be "fairly representative of the community or interests which it seeks to protect' (Mandelker 1982).
Other municipalities may also be granted standing, either to claim harm from generalized injuries such as increased traffic control costs and property value decline from a land use in an adjacent municipality or merely in a representative capacity without demonstration of harm (Mandelker 1982).
CROP Rule 106
A petition for certiorari ( a writ from a court to a lower tribunal requesting a transcript of the proceedings for review) must be filed in the District Court within 30 days of the final action.
This process looks for adherence to required procedures, abuse of discretion, and/or actions which exceed the jurisdiction of the lower decision-making tribunal. Certiorari applies only to quasijudicial as distinguished from legislative zoning actions.
The Board of Adjustment Administrative Review
Colorado's Zoning Enabling Act states "the governing body shall provide for the appointment of a board of adjustment.... which shall hear and decide appeals from and review any order, requirement, decision, or determination made by any administrative official charged with enforcement...." Decisions of the Board of Appeals are reviewable by certiorari for procedural compliance.
In the case of hardships, the Board has the authority to modify, or "vary" application of the zoning regulations.


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Initiative and Referendum Legislative Appeal
Since the Colorado Supreme Court's decision in Margolis (Wright, Yanz), nine zoning elections have been held: in Arvada, Lakewood, Wheatridge, Longmont and Cherry Hills Village as a reasult of citizen petitions. The initiative process permits voters to propose legislation which takes effect if passed by the voters. The referendum is a citizen review by election of a specific legislative action taken by a governing body.
The referendum and initiative can be used only in relation to legislative acts, as opposed to quasi-judicial or administrative. "Zoning referenda have been challenged in the U.S. Supreme Court as a violation of equal protection and due process. The court has upheld local zoning referenda, except when racial discrimination has clearly been shown '(Mandelker 1982). In City of Fort Collins v. Dooney 496 P. 2d 316 (Colo. 1972) a procedural due process objection was thrown out: "The fact that due process requirements may be met in one manner when the change is by council action does not preclude other procedures from meeting due process require-Tppnf-fi under the referendum.
Countersuit by Developers Against Petitioners
Recent Colorado experience in which developers bring suit against petitioners for deprivation of constitutional rights have perhaps caused citizens to reconsider the costs / benefits of petitioning for reconsideration of zoning decisions.


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Colorado's American Civil Liberties Union thinks "this is... extremely important... raising questions about individual rights, freedom of expression and rights to petition the government" (Boulder Camera 1983) and called voting, petitioning and other citizen participation in government "the most basic fundamental grounds tones of our system... that ensures a representative form of government (Boulder Camera 1983) Nationally, developer suits charging petitioners with harrassment have been unsuccessful where the objective of the petitioners is a legitimate governmental action, such as referendum. However, in Amel Development Co. v. City of Costa Mesa, 178 Cal. Rptr 723 (Cal. App. 1981) the court set aside an initiative that repealed a zoning amendment for moderate income housing. The court in Amel found no change in conditions or circumstances to justify the initiative repeal and found that the initiative was adopted for the "sole and specific purpose of defeating" the housing development. So, relationship of action to purpose appears to be a major determinant in the decisions to date.


CHAPTER THREE CASE STUDIES
In an original proceeding in December, 1981, the Colorado Supreme Court grouped together three cases in different procedural postures, -presenting the question of whether zoning and rezoning by municipal governing bodies are legislative acts subject to popular challenge by refemdum. The cases involved three separate municipalities :
Robert R. Wright et al v. City of Lakewood
(SC No. 80 SC 43) (Wright v. Lakewood)
Jerry G. Yanz et al v. City of Arvada
(Sc No. 80 SC 59) (Yanz v. Arvada)
Larry Margolis et al v. Arapahoe County District Court (Sc No. 80 SA 110) Margolis v. Greenwood Village)
The cases attracted a great deal of attention from various interests. Amici curiae were filed by both the Colorado Municipal League and the Homebuilders Association of Metropolitan Denver. The Supreme Court's opinion in the three cases, that zoning is legislative in nature for purposes of referendum, really affected only the site specific aspect of zoning. I will examine each case separately,
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beginning with the court's notes on the factual background and procedural setting, including interviews with municipal planning staff in the communities involved and concluding with the apparent consequences of the State Supreme Court's decision.
Wright: the Lakewood Case
On June 12, 1978, the Lakewood City Council adopted an amendment to the Master Land Use Plan of the City and passed an ordinance re-zoning certain properties within the area covered by the amendment to the master plan. The amendment to the master plan and rezonings by the Lakewood City Council would allow development of an activity center in the area around the Villa Italia Shopping Mall. The plan called for increased commercial, office building, and residential usages as well as significant street improvements, in an attempt to create an integrated "downtown" area within the City of Lakewood.
On July 11, 1978, Wright and other citizens of Lakewood filed petitions seeking a referendum on the amendment to the master plan and on the rezonings. The Lakewood City Council refused to repeal the ordinance and did not set a date for the referendum election.
Wright filed an action for declaratory relief and mandamus to force the City of Lakewood to hold a referendum election. On June 13, 1979, the District Court of Jefferson County granted Wright's motion for summary judgement and ordered the city council to repeal the ordinance or set an election on the referendum petition.
Lakewood appealed to the Court of Appeals. A divided court reversed, holding that the approval of an amendment to the master plan and the adoption of a rezoning ordinance were not "legislative" acts and therefore were not subject to the referendum


power contained in the Colorado Constitution, art. V, sec. 1 Wright v. City of Lakewood, 43 Colo. App. 480, 608 P. 2d 361 (1979).
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(SC No. 80 SC43, 1982).
The View frctn Lakewood Two Years Later
Interview by author with Jim Peterson, Lakewood Planner.
Background: City Council approved a rezoning authorizing approximately 1,500,000 square feet of mixed use development. At that time City Council understood that referendum could not be applied to rezoning. An ad hoc group formed in opposition to the rezoning, calling themselves "Neighbors for Lake-wood" (NFL). NFL challenged the rezoning by petition requesting a referendum. When Lakewood City Council refused to comply, the neighbors challenged their decision in District Court. Lakewood appealed the District Court's order (to repeal the ordinances or set an election) eventually to the Colorado Supreme Court. The Supreme Court decided zoning is legislative.
A referendum was held the following summer and the vote was against the City Council rezoning, although turnout was very low.
The main issue appears to have been increased traffic congestion on Wadsworth Boulevard. Opponents of the zoning felt this could cause motorists to choose alternate routes, in many cases causing increased vehicular traffic through existing residential neighborhoods.
Prior to the higher Court's decision, Lakewood City Council could have been characterized as "pro-grcwthV Now, it is less strongly so.
Hostility between City Council and the referendum proponents appears to have heightened interest in the decision-making process.


Same neighborhood associations had formed in the mid-to-late seventies at the time Lakewood drafted its first comprehensive plan, called "Concept Lakewood". The groups receded in visibility subsequent to the plans adoption but the leadership remained intermittently active. Many of these leaders participated in NFL.
Presently, NFL acts as an umbrella group,with an elected board of directors, representing an unknown and evidently fluctuating number of honecwners, neighborhood, and condominium associations.
Lakewood, a statutory city, uses the legal protest petition process Although it may have been successful in defeating a few isolated cases, it hasn't been widely used by neighborhood groups or others.
Consequences of the Wright Decision and Resulting Referendum.
The Lakewood City Council's apparent reaction to the petitioners was that they were "a minority" standing in the way of progress, and in no way representative of the bulk of citizens. Voter turnout would seem to support this view.
Former Mayor of the City did not seek re-election and there are now five new Council Members, elected in 1983. However, this may reflect support rather than displeasure. Lakewood has an eleven-member council and all seats were up for grabs.
Late in 1983, the same developer, Gary Gray, representing Charles Stanton, von City Council approval for a very similar proposal on the same site. NFL geared up again to collect petition signatures. The deadline was the Saturday of a holiday weekend. The developer challenged the petitions on grounds that many signatures were collected on Sunday of that weekend. The challenge was declared valid by the City Clerk.


NET. is new soliciting funds for a, lawsuit but it seems that they may be running out of steam.
Lakewood's new mayor ran a campaign based can getting City Council and Municipal staff working together with the neighborhoods. Two new programs have resulted:
V*
(1) Twice yearly, Ward Council Members, the Mayor, and appropriate city staff will hold a camrunity meeting (by ward) to "get input" and "close the gap".
(2) A mandatory Neighborhood Referral system for re-zonings and Use Permits is being established.
Potential developers must work through the Referral Process by meeting at least once with the neighborhood group or its representatives.
Two new staff positions have been funded to support this effort. Staff's role will include being knowledgeable about the decisionmaking processes and may involve acting as mediator in selected cases.
City Council i s still perceived by many as being somewhat pro-growth, although there are seme hints that Council may not encourage new massive multi-family developments. A recent Council goal is to establish more of a balance in types of residential development, leaning unofficially towards a cap of 10-15 units per acre. It was not determined how such a goal might be implemented.
No ordinance changes are anticipated.
It is likely that City Council is demonstrating a desire to
positively respond to neighborhood concerns in setting up the


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the Neighborhood Referral System, hat also to balance those concerns with ccnmunity wide concerns and planning goals.
Yanz; The Arvada Case
Yanz, et al. v. City of Arvada, No. 80SC59, is before this court on a writ of certiorari under C.A.R. 50 because of the important issues it presents.
Cn February 10, 1979, the Arvada City Council adopted an ordinance rezoning 3.34 acres of land at the comer of 72nd Avenue and Wadsworth Boulevard from signle-family residential to commercial.
The proposed use of the property was for a professional office building.
Within the time limit specified in the city charter, Yanz, and other qualified electors (Yanz), submitted petitions calling for a referendum on the rezoning approved by the Arvada City Council.
OK April 6, 1979, the Arvada City Council rejected the petitions and refused to schedule an election.
Yanz brought an action in the Jefferson County district court seeking a declaration that the rezoning ordinance was subject to the referendum provisions of the Arvada City Charter and the Colorado Constitution, and seeking damages for violation of Yanz' constitutional rights.
The district court granted Arvada's motion for sumnary judgment.
It held that rezoning decisions of the city council were not subject to the referendum provisions and that Yanz' sole remedy was limited to judicial review under C.R.C.P. 106(a)(4).


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Yanz appealed to the court of appeals. Certiorari before judgment was granted under C.A.R. 50 (SC No. 80SC59, 1982).
The View Fran Arvada Two Years Later
Interview by Author with Don Kinney, Arvada Planning Director.
Background:
At issue was a rezoning of approximately 3 acres in size, located at the intersection of two arterial streets, one not then constructed (72nd Avenue), The rezoning changed the parcels designation from single family residential to a very restricted professional office zone. The Right of Way for the east-jwest arterial had been acquired but construction had not ccntnenced. The rezoning only directly affected one existing residential neighborhood which backed on the parcel in question. The neighborhood perceived that the rezoning would accelerate construction of the east-west arterial.
Citizen controversy over development proposals is not new to Arvada. In the late seventies, an election to recall the Citys Mayor and Mayor Pro-Tern over the proposed conversion of seme no longer used "cottage schools" to 16 units of dispersed 4 and 5 bedroom low income housing resulted in a five to one victory for the city.
In 1982 the so-called US Heme Initiative was unsuccessfully spearheaded by a square-mile neighborhood. Known as Lake Arbor, the area is heme to three Arvada planning ccrrmissioners, among others.
The successful opposition leaders are actively involved in Democratic and Republican party activities, Chamber of Commerce, professional and neighborhood groups. Their strategy historically has been to down play the land use issue and focus on the issue of representative government, responsibility of ensuring due process, and


35
related concerns. Cue factor they have consistently publicized is the costs of a special election in Arvada, around $8,000 to $10,000 each,
There is no formalized process for soliciting or dealing with citizen opposition to or concerns. There is no Neighborhood Planning, as such, but small area plans are prepared for its Community Development neighborhood strategy areas. Two plans are canplete, another is nearing completion.
There is no legal protest clause in Arvada's Zoning Ordinance.
Consequences of the Yanz Decision and Resulting Referendum.
Arvada's City Council's response to citizen threats of referendum and initiative on zoning matters is to make sure that everything is done according to the Charter, within the scope of its prescribed powers, acting in a consistent manner, and incorporating lots of facts and figures into the public hearing record.
An unsuccessful bond issue and recall in the early seventies was the stimulus for preparation of an bi-annual citizen attitude survey, Survey responses are incorporated into the Comprehensive Plan Review Process. The latest survey reaped a 60% return rate from a 10% random sample. Responses from the latest survey indicate a high level of satisfaction with and trust in Arvada city government. The vast majority of Aryadans responded that streets need to be a high priority and speculation is that a Bond Election next Fall to fund completion of 72nd Aye, will be successful. (This is the infamous ''east-west arterial'' of the test case).


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Margolis:- The Greenwood Village Case
The case of Margolis, et al. v. District Court, No. 80SA110 (the Greenwood Village case), concerns the original zoning o.f land recently annexed to the City of Greenwood Village.
Article V, Section 1 of the Colorado Constitution provides in
part:
"The initiative and referendum powers reserved to the people by this section are hereby further reserved to the legal voters of every city, town and municipality as to all local, special and municipal legislation of every character in or for their respective municipalities. The manner of exercising said pcwers shall be prescribed by general laws, except that cities, towns and municipalities may provide for the manner of exercising and initiative and referendum powers as to their municipal legislation. Not more than ten percent of the legal voters may be required to order the referendum, nor more than fifteen percent to propose any measure by the initiative in any city, town or municipality."
On March 26, 1979, the City of Greenwood Village annexed 31 parcels of undeveloped land constituting approximately 90 acres, and on July 16, 1979, a zoning ordinance was passed establishing the zoning for the annexed land.
On July 16, 1979, a petition for a referendum on the zoning ordinance and a petition for an initiative establishing a different zoning scheme were filed with the Greenwood Village City Council.


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A petition for an initiative which would have imposed a temporary moratorium on jrezoning applications was also filed. The Greenwood Village City Council refused to pass the proposed ordinance or set a date for a vote on this initiative. TSiis refusal was appealed to the district court as another separate claim in this lawsuit.)
On August 6, 1979, the Greenwood Village City Council refused to act on the petitions because they related to zoning matters which the council believed were not legislative in character, and therefore were not within the referendum and initiative provisions of the Colorado Constitution, article V, section 1, and the Greenwood Village charter.
(The Colorado Constitution requires a municipal governing body, when presented with petitions for a referendum, to repeal the ordinance or set a referendum election on the issue. In the case of initiative petitions the governing body must pass the ordinance intact a£ proposed, or set the initiative for an election.)
Margolis and other qualified electors filed a C.R,C.P.
1Q6 (a) (2) action in the District Court of Arapahoe County, seeking an order either to carpel the Greenwood Village City Council to repeal the zoning ordinance or to submit the petition for a referendum, and for an order forcing the Greenwood Village City Council either to adopt the alternative zoning measure or to submit the petition for an initiative vote of the electors of Greenwood Village.
Margolis joined as defendants the Greenwood Village City Council and two of the individual landowners whose property was affected by the zoning dispute. Two other landowners moved to intervene in the action.


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The district court refused to grant intervention and dismissed all claims against the two landowners originally named as defendants. The court also granted the motion of Greenwood Village to dismiss the referendum and initiative petitions dealing with the zoning of the annexed property, on the grounds that the zoning-decisions were quasi-judicial and thus not subject to the referendum and initiative provisions of the Colorado Constitution and the Greenwood Village charter. (SC No. 80 SA 110, 1982).
Margolis; The View frcm Greenwood Village Two Years Later
Interview by Author with Steve Schroeder, Greenwood Village Planning Director
Background
Several petitions were received following Council's action zoning 90 seme acres of recently annexed land. The petitions requested a referendum on initial zoning, an initiative on a new zoning scheme, and a moratorium on rezonings in Greenwood Village. After the State Supreme Court decision, the City Council adopted the temporary moratorium and the new zoning, on the theory that if passed by popular vote, only popular vote could amend them.
Consequences
It is speculated that Greenwood Village City Council will voluntarily extend the rezoning moratorium beyond May, 1984, probably for at least six months.
The concept of zoning by referendum has been discussed, but not formally, as a means of providing a cemnunity-wide basis for decision making. There is also some speculation that a developer


39
could by-pass the municipal process entirely, going only to the citizens for an initiative zoning.
The comparatively small population of the City could work to its disadvantage if an initiative or referendum zoning election became reality, unlike the experiences of Lakaraod and Arvada.


CHAPTER FOUR
PLANNING IMPLICATIONS OF THE EXISTING SYSTEM AFTER MARGOLIS, YANZ, AND WRIGHT Reflections on Trends The Colorado Civil Liberties Union
Interview by Author with Attorney David Miller.
To date there have been in Colorado two countersuits filed against zoning referendum petitioners/organizers.
Petitioners for a zoning referendum in Louisville which adversely affected a proposed Medema Development applied great political pressure resulting in the City Council's reversal of the ordinance. Medema then filed suit against the petition drive organizers. The court awarded the defendants $7,000 plus legal fees against Medema.
The result was a lot of negative public relations for Medema, as well as legal costs, and an anti-development slate of candidates was elected to Louisville's City Council.
The Colorado Supreme Court set the standard for harrassment suits in POME (Protect Our Mountain Environment) v. Rockport-Gayno.
The decision, in February, 1984, is not yet published. The issue involved is suit against individuals who are exercising their constitutional right to petition. Rockport-Gayno felt they were injured by those petitioning against them to gain governmental action. The court ruled that regardless of other motive, if the petitioners seek to gain
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governmental action (such as referendum) then they are harmless.
Only if the petition is solely to harrass do grounds for suit exist. Nationally, no petitioner has ever lost in a harrassment suit.
The court's stand at this time, that zoning is a legislative act, may "make developers itch". But the Colorado State Constitution says that the people have the right to initiative and referendum and further, that the "citizens reserve unto themselves that right".
The government was not granted the right to exclude people from that process.
The question becomes, "When is zoning final?" In Colorado, referendum must be moved within 30 days. An initiative to provoke rezoning can, however, be initiated at any time. For procedural questions, Rule 106 may be invoked for certiorari review.
The developer has certain vested rights in this state, such that, for instance, once he has a building pernnit, damages may be appropriate. The concept of promissory estoppel may also apply. If a developer justifiably relies upon a set of facts and the situation is changed to his detriment, again damages may be appropriate at certain stages of development. There is some question as to municipla liability for citizen initiative consequences to the developer.
SB 194 suggests changing the procedural rules, timing, and percentage of signatures required. With respect to zoning, this could mean changes from our recent experiences.


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SB 194 Colorado State Legislature 1984
Trying to define the precise scope of this bill during the legislative session has been a constant challenge. As of April 15, however, on at least its second trip to,the floor, the House passed it by the minimum possible 18 votes.
In addition to tightening the time requirements for filing for referendum to ten days (filing suspends the ordinance and petitioners have 60 days to circulate petitions), petitions must new be signed by 8% of the total electors of the municipality on the day the petitions are filed.
By splitting the specific nature of zoning into two separate and distinct actions, citizen referendum and initiative are considerably limited. One of the actions is legislative, as it has been, but the other is quasi-judicial. And quasi-judicial means not subject to initiative and referendum.
The first of these actions is the enactment of the legislative scheme which establishes zone classifications, uses, and restrictions which are of general and more permanent application, which establishes general policies which are not site specific, and which is developed without the need for evidentiary hearings.
The second of these actions is the quasi-judicial application of the legislative scheme to specific parcels of property which is preceded by public notice, involves a public hearing at which evidence is presented, determines the rights and liabilities of specific pro-


perty owners with respect to their properties, is based on past and present facts applied to specific property, and is determined by applying facts to the criteria of the legislative scheme. (SB194 a/o 4/2/84).
A new section states "Election on Zoning Permitted" which recognizes that certain zoning and rezoning decisions which are quasi-judicial may affect a large number of citizens in a municipality and may have a significant impact on the entire municipality. In order to accomodate the carpeting interests involved in such decisions, to provide certainty to property owners subject to such quasi-judicial zoning and rezoning decisions, to protect the existing uses and value of property, and to assure implementation and consideration of municipal comprehensive and master plans while accounting for changes in character of the surrounding neighborhood, as a matter of statewide interest it is the intent of the general assembly to provide the registered voters of a municipality the opportunity to review municipal zoning and rezoning decisions in an election as provided in this section. (SB194 a/o 4/2/84).
Most troublesome is likely to be the increased appearance of the clause, "the ordinance has been passed as necessary for the immediate preservation of the public peace, health, or safety" which precludes voter review by election,
There has been much discussion concerning the constitutionality of SB194.
Colorado Municipal League (CML)
The Colorado Municipal League was quick to jump into the Margolis-Wright-Yanz fray as amicus curiae. The League is a non-profit,


voluntary association of two hundred twenty-nine Colorado municipalities The League's primary purpose is "to aid in the improvement of municipal government to the benefit of Colorado municipalities and their citizens" (brief filed in support of Arvada and Lakewood) Its official position in the cases, and since, is that ccrrprehensive land use planning based upon procedures designed to protect individual landowners and benefit the general public could be destroyed by applying the referendum power to zoning decisions.
Sam Mamet, CML lobbyist, at 1983's Colorado Chapter Anerican Planning Association Sunnier meeting, stated that the substantive referendum problem requires Constitutional amendment.
Cannent
SB194, on the surface, challenges the Supreme Court's Decenber 1982 decision reaffirming the citizens right to petition for redress of grievances in rezoning matters. The court says rezoning is both quasijudicial and legislative, but you can vote on rezoning.
Joanne Ditruer, in the April 22, 1984 Denver Post, seems synpathetic to the opponents' view that the Bill denies citizen First Amendment rights by stautorily changing the nature of the zoning process.
David Miller, aQlu attorney, seems to agree.
The Supreme Court rulings become part of the body of cannon law.
The legislature, then, is attempting to change cannon law by statute, which is generally constitutionally acceptable. One issue seems unresolved, Does SB194 seek to protect local governments from the very people it represents?


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Coping with Citizen Participation in Land Use Decisionmaking
Tremendous urban population growth, increasing reliance upon the automobile and changes in social structure during the twentieth century have been credited with creating a generalized sense of alienation and apathy nationwide. Government began to be perceived as representative of special interests, not of the people, as ordinary citizens felt more and more separated from decision-making processes.
According to this view
urban residents are overwhelmed by the complex structures of centralized city government and do not feel that they have the ability to influence decisions affecting their environment. Further, reform movements directed at strenghening the institutions of central city government mitigate against the maintenance of strong, cohesive neighborhood residents....Thus, many neighborhood residents have become alienated from decision-making processes.
(White and Edner 1981).
As early as 1933, Clifford R. Shaw's Chicago Area Project encouraged independence for neighborhood groups. In 1939, the Back-of-the-Yards Neighborhood Council was carefully organized by Saul D. Alinsky, an associate of Shaw. The People's Organization, in Al insky's words,
"will vork cooperatively for reasons of social good rather than individual interest...they will effectively checkmate one another and discover that the only way any of them can make progress is by the entire group's moving forward", (Alinsky, 1946).


Neighborhood organizations, with, their small scale and "town meeting character humanize the decision-making process and give neighborhood residents a sense of control over the decisions which will affect their environment.
I have been involved in working with neighborhood and planning issues in Aurora, Colorado, since 1977. In fact, irry introduction to the concepts of planning and land use came through volunteer involvement with, a city-supported neighborhood organization.
Based on my neighborhood, professional, and research experiences,
I feel that Auroras programs to foster informed citizen participation have greatly contributed to a fairly high level of general citizen support for the City's zoning decisions.
I will briefly discuss two such programs, Neighborhood Planning and Neighborhood Referral.
Neighborhood Planning in Aurora Purpose
The purpose of Neighborhood Planning in Aurora is to develop concensus about directions for the City by encouraging responsible citizen participation in the process of public decision-making. Through this process, Aurora's neighborhoods contribute both to the creation of public policy reflecting camunity needs, values and goals and to the development of local, self-help projects improving the neighborhoods themselves.


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Goals
In keeping with the purpose of the program and in response to identified neighborhood needs, the program's goals fall into three major categories.
A. TO encourage citizen involvement by: ,,,
- Assisting in identification of neighborhood problems and concerns
- Providing organizational development training-
- Developing structures for citizen participation
- Functioning as a liaison with Developers, City Council and Neighborhood Organizations
B. To effectively communicate with and educate citizens by:
- Regular notification of City proceedings
- Providing manuals and workshops on the function of City government
- Assist in the development and publication of neighborhood newsletters
- Building a network of carrnunications among neighborhood organizations
- Informing neighborhoods of available resources
C. To develop ocrmiunity and neighborhood identity by:
- Encouraging local, self-help projects
- Identifying problems and goals common to different organizations
- Developing local oanminity based leadership


48
History
Neighborhood Planning in Aurora began in July of 1974 with the hiring of one planner through a U.S. Dept, of Housing & Urban Development 701 Planning grant to the City for general and comprehensive planning. Hie Grant was supplemented by the City's General Fund.
Initially, the program emphasized citizen participation in review of the Comprehensive Plan on a City-wide basis. Later, the program was focused on developing neighborhood organizations in the Northwest area of the City, and working with those groups to prepare neighborhood plans.
In 1977 the funding source changed to the Ocmnunity Development Block Grant program and a seocnd planner was hired. The program area expanded to include all of the Ocrrnrunity Development Revitalization Area (generally north of 6th Avenue). Today, funding continues to ccme frcm the CDBG program. The program is still primarily limited to the area north of 6th Avenue because of the funding source. When initially funded in 1977 the program was presented to the Citizen's Advisory Committee as a trial program that, if successful, would be submitted for consideration as a. general City-wide function with possible general fund support.
Neighborhood Reports and Plans have been prepared and published for Northwest, Del Mar Parkway, Hoffman Heights/Jewell Heights, Side Creek, Sable/Altura/Chambers, and Havana Heights. Neighborhood Reports provide the data base upon which the Neighborhood Plan is based.
The program has also provided liaison and planning assistance to the Downtown Aurora Business Association, the Original Aurora Development


Company and the Aurora flshahil itation Authority, Working with these
groups the program has produced the Original Aurora Master Plan and
/
Design Guidelines for revitalization of the Colfax business district.
Through the Neighborhood Planning Program the neighborhood organizations have initiated or actively participated in the following programs;
1. An annual Spring clean-up in the northern area;
2. Proposing the ACCESS Aurora concept;
3. Involvement in the Housing Rehabilitation Program;
4. Participation in the City, Capital Facilities and CDBG budget processes;
5. Projects for revitalization of the Colfax business districts;
6. Neighborhood crime prevention programs and creation of the Police Department's DART project;
7. Participation in the Stapleton Expansion Impact task forces;
8. Zoning and development review through the Neighborhood Referral Program;
9. Ordinances and revisions related to Code Enforcement;
10, Regular publication of informative neighborhood newsletters; and
11. Neighborhood meetings on topics of general interest from the Comprehensive Plan to Water Policy.


NEIGHBORHOOD PIANNXNG
I. INITIATICN PROCESS
Initiation is a joint effort of citizens and planning staff. Steps in the initiation process are as follows upon neighborhood request or other direction:
A. Neighborhood planner assigned to the area contacts concerned ccmrcanity leaders and residents to generate interest in neighborhood planning;
B. The neighborhood planner and citizens organize a general meeting which is announced through the news media and flyers distributed door to door in the neighborhood;
C. Participants at the general meeting voice concerns about the neighborhood and volunteer to help start the organiza-tion by delivering flyers, writing newsletters, preparing refreshments for meetings, working on special projects, etc.
D. At this point, the new organization has two primary goals: 1) to establish the organization by writing bylaws
and organizing the election of board members; 2) to develop a neighborhood report based on issues expressed at general meetings. Ccrrmittees are set up bo achieve these goals with the assistance of the neighborhood planner
E. The neighborhood planner provides leadership during the initial phases of the organization. Following elections, the board of directors assumes responsibility for running


the organization and the planner focuses primarily on technical assistance. The planners objective is to initiate organizations which are ultimately under the control of neighborhood residents.
In the case of a neighborhood having an existing organization, staff assistance focuses on facilitating an open process representative of various neighborhood interests.
II

NEIGHBORHOOD PLAN PROCESS to review Data Base and existing plans, update neighborhood organizations and set new action plan. WHEN WHAT
March A. PRE-MEETING with neighborhood to explain
process. Probably would involve a brief presentation at a neighborhood meeting. HANDOUT (AND MAIL) Data Base, list of old neighborhood issues, worksheet.
April B. WORKPLANNING SESSION
1. Purpose/Process
2. Identify Problems/Assign Priorities
3. Snail working groups (a) identify solutions/Activities/Priorities;
(b) develop implementation timetable.
4. Another meeting may be required to ocrnplete this process and assign tasks.
April-May C, N.O. working groups develop written
report based on workplanning session


52
WHEN WHAT
May D. Working groups report hack to Neighborhood Organization general membership meeting. Written report is available for Garment/ approval by neighborhood.
Sumner E. Neighborhood Report and Neighborhood Plan text and graphics are developed by staff.
Sumner F. Study Session with City Council.
September G. Final Draft to neighborhood working group for approval. N.O. presentations for approval.
Oct.-Nov. H. Planning Ccrmission approval.
Nov.-Dec. I. City Council adoption.
III
IMPL0COTATICN PROCESS
The effectiveness of neighborhood organizations is proven by their ability to inplament the recamendations defined in the neighborhood reports. Implementation occurs primarily through four processes:
A. Neighborhoods participate in the City's Neighborhood Referral process to implement their neighborhood's land use priorities.
B. The neighborhood organizations review the neighborhood report recarmendations annually and select priorities
to present to City Council arri City Departments for
consideration during the yearly budget cycle. This process identifies the most important areas for attention from the neighborhood perspective to use as guides in planning and allocating City resources.


53
C. Neighborhood planners work with other City departments to determine opportunities for citizen input into planning and decision-making processes. These procedures are clearly defined in written form so that neighborhood organizations can be aware of and appropriately utilize existing mechanisms for citizen involvement.
D. Neighborhood organizations initiate self-help and other locally based projects to work towards neighborhood improvement and cooperation among residents. Cleanups and mini-grant groups are examples of such activities.
YEAR (1984) PROGRAM ACTIVITIES
Program activities for 1984 fall into several categories related to the Purpose and Goals of the Neighborhood Planning Program.
1. Expansion of the Neighborhood Referral Program
a. Identify areas of the City not represented by a neighborhood organization.
b. Solicitation of representative membership from all Aurora neighborhood organizations.
c. Orientation workshops for organization representatives.
d. Sponsor mediation discussions with developers and neighborhood organizations on specific use and
zoning issues.


54
2. Develop a series of training workshops to encourage responsible citizen involvment.
a. Organization Development Topics
- Board structure and roles
- Volunteer recruitment and training
- Membership building
- Public relations and newsletters
b. Local government processes
- City government and how it works
- The planning process: What it is
- Zoning and code enforcement
- Neighborhood Reports
3. Administer the Neighborhood Self-Help Mini-Grant
4. Effective cormunications between the City and Neighborhoods
a. Notify of scheduled opportunities for citizen participation in public hearings, budget hearings, commission and Council meetings,
b. Publish a monthly Neighborhood Planning Newsletter.
c. Distribute a monthly calendar of meetings to neighborhood groups.
d. Provide a quarterly report to City Council on .neighborhood organization issues and activities.
e. Sponsor discussions with neighborhood organization leaders, Council Members, and City staff.
f. Expand the distribution of the "Guide to Aurora City Government" and revise as necessary.


55
5. Develop a sense of ccrrmunity and neighborhood identity
a. Initiate and update Neighborhood Reports
b. Encourage neighborhood-sponsored programs like Spring cleanup and neighborhood picnics.
c. Initiate specific programs and strategies to meet local needs as identified by neighborhood organizations.
d. Assist neighborhood groups in applying for the CDBG self-help mini-grants for local public projects.
e. Continue to cooperate with the Police Department on the Neighborhood Crime Prevention program.
NEIQBOKHOOD REFERRAL SYSTEM
Aurora's Neighborhood Referral System was created in response to requests from citizens and neighborhood groups for earlier, more direct notification and an active role in the land use change approval process.
New in its third year, the program is still undergoing changes, but appears to be meeting its primary goal of increased, responsible citizen participation.
The referral system was established to improve ccrrmunication between developers, city staff, and citizens on land use and development matters prior to public hearings. The program has evolved to accomodate citizen participation in other local government functions such as budgeting and provision of local services.
Seme specific objectives of the Referral System include;


Increased neighborhood organization understanding of City decision-making criteria and processes;
Increased neighborhood organization ability to make timely and informed responses;
Stimulating creative cooperative problemsolving by developers and neighborhood representatives prior to Public Hearings;
A more organized approach to neighborhood response formulation;
Reaching and involving those residents who are most irrmediately affected by proposed changes;
Clarifying priorities in terms of:
- staff review and reccrmendations
- City Council response
Encouraging neighbors to organize and participate in City decision-making processes;
Increased awareness of neighborhood priorities.
Implementing the Aurora Comprehensive Plan by encouraging organizational development in Aurora neighborhoods which will strengthen citizen participation in all aspects of local government, create a sense of neighborhood identity and provide a framework for neighborhood self-direction.
For the purposes of the Referral process, the term "neighborhood organization" includes business associations, homeowners associations, neighborhood associations, and coalitions of the above.


Minimum criteria for Neighborhood Referral registration include:
- A neighborhood organiztion shall be formed by residents, business people or owners of real property with a prescribed area of Aurora;
- A neighborhood organization shall have established
V*
boundaries defined by activity patterns, residents perceptions and geographic features. A neighborhood organization's boundaries shall not overlap with those of another organization of the same type, or exclude certain types of housing or businesses unless the boundaries are controlled by a haneowner association's articles of incorporation;
- Organization membership shall be open to all residents, business people and owners of real property within its established boundaries;
- An open, general membership meeting shall be held at least annually and shall be advertised by the best
means possible.
A neighborhood may apply for registration at any time by submitting a completed registration form to the Planning Department.
The neighborhood is responsible for supplying updated information annually. It must designate a primary contact person and an alternate to represent the neighborhood.
The neighborhood contact person agrees:
- to circulate any referrals he receives within the organization, solicit comments, and prepare an appropriate neighborhood
response;


- to establish a procedure for acccmplishing this which ensures a representative response.
The Planning Department's responsibilities include:
- maintaining a current list of neighborhood contacts;
v*
- monitoring neighborhood compliance with the guidelines;
- coordinating the notification process and ccrmunications between the appointed contact and city staff and assisting with specific questions concerning a referral.
The notification and review procedures function as follows:
- Registered neighborhood organizations are notified of proposed land use changes and development activities within or adjacent to their boundaries;
- The organization has two weeks to respond in writing;
- Questions regarding the referral are directed to the staff project managers. A neighborhood planner may also be involved.
- The neighborhood is solely responsible for completion of the referral review.
Planning staff has prepared information sheets for each land vise decision-making process Zoning, Use Approval, Subdivision, and so on -which explain the legal criteria for decisions.


CHAPTER FIVE
CONCLUSIONS
The issue of citizen initiative and referendum as a method of zoning is being even more closely examined now in the wake of the Margolis decision in 1982 and S.B. 194 this year. Questions concerning the legal nature of zoning and the appropriate avenue for appeal and review merely skirt an issue which is basic to the discussion -property rights.
Property is defined in Black's Law Dictionary as "an aggregate of rights which are guaranteed and protected by the government; the unrestricted and exclusive right to a thing; the right to dispose of a thing in every legal way, to possess it, to use it, and to exclude everyone else from interfering in it" (Black 1968). As described by definition, property is made up of a collection of rights. These rights can be held as a whole or divided up and held separately.
Many property rights may run with the land, passing from one owner to another. "This view of property is known as the bundle of rights or bundle of sticks concept" (Clemson 1979). The landowner can use these rights as he desires, leasing, subdividing, placing deed restrictions, selling mineral rights, granting easements, mortgaging, selling or bequeathing the land.


60
Ownership of all rights is "fee Simple". Fee simple ownership, although exclusive, is not absolute, in that the property owner may not use his land in such a way as to injure others.
The legal status of the zoning function is still somewhat in question in Colorado. The Supreme Court in Margolis established the act of rezoning to be a legislative act, and therefore subject to citizen initiative and referendum. Prompted by the Colorado Municipal League and the Homebuilders Association of Metropolitan Denver, the state legislature in its 1984 session passed S.B. 194, in effect, reversing the ruling of the Supreme Court, by redefining site specific zoning actions as quasi-judicial. The Governor has vetoed the Bill in the face of strong lobbying from neighborhood groups. Some lobbyists and legislators have speculated privately that CML and the Homebuilders felt that S.B. 194 represented a reasonable compromise in their interests and also those of the citizenry at large. The possibility of a "backlash" bill in the next legislative session, perhaps going as far as requiring compensation for any down-zoning action, has been suggested, if only in hushed tones. Such an action would hobble, to an even greater extent than S.B. 194, citizen efforts to initiate or refer site specific zoning actions.
After examining the evolution of zoning, its purposes, and related constitutional issues; and a survey and analysis of the citizen component to land use regulation, I have come to the following conclusions:
1) The concept of zoning rests on a theory of property rights which may be outdated in today's community setting;
2) Citizens appear to seek a participation role for themselves in


61
the land use regulation process particularly where a model for that participation is not provided; and
3) A formalized municipal citizen participation process appears to provide a positive direction and structure (if not control) to citizen involvement in land use decisionmaking.
Some land use experts have claimed that public compensation is not required even for very restrictive controls. Nelson, in Zoning and Property Rights, suggests that they are, in effect, proposing public assumption of property rights, a departure from the traditional definition. He goes even farther to suggest that to counter the equity or "taking" argument, all land could be made subject to public control without regard to effects on land values. To obtain development rights, the purchasor of the land would have to pay for them or convince the government to transfer them to him. This alternative appears infeasible, more suited perhaps to preventing development than controlling it.
Nelson also speculates that the neighborhood association could assume collective ownership of development rights. Under this proposal zoning rights would be held by the association. Neighborhood boundaries would be established by some means. The process of public approval of the proposed neighborhood association would include a vote of its residents.
Like existing homeowner associations, condominiums, or cooperatives, the neighborhood association would have authority to assess residents for common improvements or certain neighborhood services. With regard to approving neighborhood land uses which have negative impacts upon a few but which benefit the majority of residents, compensation could


62
be provided to those who are adversely impacted. Because the "nuisance" continues over a period of time, compensation should be ongoing.
On short-term or minor issues, a renter might have a vote, whereas on a long range issue such as capital expenditure, presumably only property owners would participate.
Cooperation between landowners, developers and local government would be a necessity, but although theoretically possible, it is difficult to envision the implementation of this concept.
Still, a more effective role for citizens seems to be essential. The Case Study Colorado communities which have experienced recent referenda and initiatives have had no formal process which channels citizen response into responsible, effective citizen involvement in land use decisionmaking.
The City of Aurora, with a longstanding Neighborhood Planning program and a strong policy of Neighborhood Referral of all land use change proposals, has more comfortably weathered citizen opposition to zoning decisions than Lakewood, Arvada, or Greenwood Village. Some reasons for this might include:
a) higher level of citizen understanding of decisionmaking
criteria and greater citizen familiarity with the City's decision-
1
making processes;
b) greater citizen involvement early in the approval process, in many cases negotiating with applicants to prevent or lessen negative development impacts to existing neighborhoods;
c) sense of positive local government attitude toward, and


suppo
of a have need to re
rt of citizen participation.
Citizen use of referendum or initiative appears to be a symptom situation and not a situation in and of itself. That citizens increasingly resorted to this method of participation bespeaks a for planners to take a critical look at their land use tools, -examine the concept of property rights, and to develop new
vehicles for citizen participation.


BIBLIOGRAPHY
A1insky, Saul D. 1969. Reveille for Radicals.
New York: Randan House reprt. Vintage Books
Anderson, Robert. 1968. American Law of Zoning (4 vols.)
New York: Lawyers Coop Publishing Company.
Arvada, Colorado Zoning Ordinance. Arvada Planning Department,
8101 Ralston Road, Arvada, Colorado. '''
Boulder Camera. 9 October 1983, Section A, pp. 1 and 11.
"Medema's Lawsuit Challenges Rights", Sharon Gillen.
Boulder County Courant. 21 September 1983. Section 1, p. 3. "Developers Retaliate Against Petitions", Russ Arensman.
Clemscn University Extension Service. February 1979. "Private Property Rights and Land Use Regulation". Circular 590.
Clemson, S.C.
Colorado State Legislature. 1984. "Proposal for Senate Bill 194". Revised 4/2/84.
Denver Post, The. 3 October 1983. "ACLU Monitoring Suits Against Petitioners". Pat McGraw.
Douglas, Kirke. 1980. "Land Use Decisionmaking", Thesis,
University of Colorado at Denver.
Goodman, William I and Eric C. Freund, eds. 1968. "Principles and Practice of Urban Planning." Washington, D.C.:
International City Manager's Association.
Kennebunk, Paul F. and Randy D. Funk. 1982. "Legal Problems of
Rezoning by Initiative and Referendum". Colorado Municipalities, September-October, p. 22-29.
Kinney, Don. Personal interview. 24 March 1984.
Land Use Planning. 22 August 1983. "Land Use Planning's 'Taking' Protections Eroded by Recent Court Decisions", p. 264.
Mandelker, Daniel R. 1982. Charlottesville, Virginia: The Michie Company.
Margolis, Larry etal, v. The District Court in and for the County of Arapahoe and the State of Colorado. SC No. 80 SA110.
64


Miller, David. Telephone interview. 27 March 1984.
Mizner, Franklin J. Personal interviews. March 1983.
Moore, Don. Telephone interview. 26 March 1984.
Nelson, . 1977. Zoning and Property Rights.
Cambridge, Massachusetts and Lond, England: The MIT Press.
Peterson, Jim. Personal interview and telephone interview.
26 and 29 March 1984.
Proceedings of the Institute of Planning, Zoning and Eminent Domain. 1971. "Discriminatory Land Use Controls:
The Iron Wim of the Public".
Rathkopf, Arden H. 1981. The Law of Zoning and Planning.
New York: Clark Boardman Company, Ltd.
Rogers, Robert. Personal interviews. 16 April 1983, 27 April 1984.
Rose, Jerome G. 1979. Legal Foundations of Land Use Planning: Textbook/Casebook and Materials on Planning Law. New Brunswick, N.J.: Center for Urban Policy Research, Rutgers -The State University of Nav Jersey.
San Diego Building Con, v. City Council. 72 ALR 3rd and Annotation, "Adoption of Zoning Ordinance or Amendment Thereto Through Initiative Process", 974-1015.
Schroeder, Steve. Personal interview. 26 March 1984.
Seneker, Carl J., II. 1974. Land Use Regulation for Urban Growth Control: Selected Legal Principles. University of California Davis: Institute of Governmental Affairs.
Smith, Herbert H. 1970. Citizens Guide to Zoning. West Trenton,
N.J.: Chandler-Davis Publishing Co.
Weaver, Clifford L. and Richard F. Babcock. 1979. City Zoning:
The Once and Future Frontier. Chicago, Illinois: Planners Press.
West v. Portage. 72 ALR 3rd 1016 and Annotation "Adoption of
Zoning Ordinance or Amendment Thereto as Subject of Referendum 1016-1060.
White, Charles R. and Sheldon M. Diner. 1981. "Participation in Neighborhood Organizations", Ccmmunity Action, Sept/Oct.


Williams, Norman, Jr. 1974. American Land Planning Law; Land Use and the Police Power, Vol. 1. Chicago, Illinois: Callaghan and Company.
Wright, Robert R., et al v. The City of Lakevrood.
In the Supreme Court of the State of Colorado. No. 80 SC 43.
Yanz, Jerry G., et al v. The City of Arvada et al. In the Supreme Court of the State of Colorado. No. 80 SC 59.


APPENDIX
Interview Questions Case Studies: Lakewood, Greenwood Village, Arvada
1. Describe the circumstances surrounding your municipality's experience with citizen initiative or referendum relating to zoning.
2. Was the challenge from an organized neighborhood association or an ad hoc group?
3. Was an election held? Results?
4. What do you feel were the key issues involved?
5. Has this experience changed the overall attitude of your governing body toward:
(a) land use change process
(b) citizen participation?
6. Has this experience changed the overall attitude of citizens toward:
(a) land use change process?
(b) local government response to citizen participation?
7. Was the issue of representative government raised by either citizens or governing body? Describe.
8. Does your municipality use a legal protest process? If yes, how has it been used?
9. Does your municipality have a formalized citizen participation or neighborhood planning program?
10. Are any ordinance changes anticipated as a result of the initiative/ referendum experience? Any new programs?
11. Summarize likely future consequences.
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