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Home My WebLink About12-15-1969 �,,� � � � - �, ,, � CITY �DE �APE GIRA,RDEAU GAPIC a11fAf10�Al1, M�ssOURi d�7ot OFFIC[OP TN6 ' MOWAIID C. WRIOMT. J11. CITY ATTORM[Y - � r December 15, 1969 �u��ic�airr wc�ua�a 1� �o Mr. Stephen E. Strom Attorney at Law 320 Broadway Cape Girardeau, Missouri 63701 Dear Councilman Strom: This letter is in response to your request for an opinion as to possible methods by which the City could "condition" its zoning. � The particular problem to which you were referring comes up as a reeult of the rezoning procedures which are utilized by the City. Invariably, the Applicant is requesting rezoning for = some specific use and shows his plans to the City Council which generally look quite well and seem to minimize any damages or problems to the neiqhborhood. After the rezoning is granted, the property awner may then use his property for any use which is permitted in the zoninq district. In many instances, the plans of the Applicant then fall to the wayside and the area is used for a purpose different tha�n that which was pres�nted to the City Council. In light of this problem, I will attempt to suggest several solutions which could make our rezoning more flexible and give us some continuing control over the Appli.cant's proposed use. 1. S ecial Use Permit. �'robably the most common technique used to exer�aontinuing control over the use is the Special Use Permit. Out Orclinance now provides for such permits and these perrnita can be conditioned upon the meeting of aertain standarda and the perma.t can be revoked should the applicant fail to meet such standards. The enlargement of the Special Use Permits could be one poasible method of impxoving our control. � Le�'e Iook at an example as to how this might ro=k. Asswne �g that the land is presently zoned R-4 and a Doctor wante to establish ' an, of£ice building whfch requir�s a C-1 zoning. If the City Council. ,�; rezonee this lend to C-1, the Applicant could then decide that he aishes to utilize the area for a filling station. It is quite � � possibla that the specific request before th� City Council seems ' ` reasonable► ard ie compata�ble with the multiple-family dw�llings C - p _� A � D Mr. 6tephen E. Strom December 15, 1969 Page 'i�o exia►tinq in the neiqhborhood. On the other hand, the utilization o� this land as a fillinq station would be completely incompatable with the multiple-family dwellings that exist and as e consequence, the City might be reluctant to rezone or if they rezone, they might find that those individuals who live in the multiple-family dwelli.nqs would be subjected to the traffic and problams associated with a filling statfon. By removing objectionabl� uses, such as filling stations from C-1 distriet and placing this under the Special Use Permit, the CiLy can now rezone the area to C-1 without worrying ahout whether or not t.he land will be utilized as a filling station. Therefore, one suggestion is ��o remove the objectionable uses and issue the�e only under Speci.al Use Permit. Z. Conditiona�I 2onin . A zoning amendment wha.ch permits the use of e par icu .ar p ece o�property in a zaning district subject to restrictions other �han those applicable to all land sirnilarly � classed i� referred to as "Conditional Zaning" . � An exAmple of the utilization of this type of zoning is where property is zoned R-1 but is immediately adjacent to a Commercial District. The applicant wishes to naw rezone his land so that he can kauild an insuzance of�ice. The use appears to be justified but the Council i� concerned with the prablems of damages and nuisances which would result to the residential property. There might be a nwmber of housea that are adjacent to or near the area for which the zoninq requeet is being made. The City Council miqht � desire to impose conditions which are designed to protect the adjacent land from the loss of value which could occur if the nGr+ly permitted uee were perntitt0d without any restraint. An example of such condition� miqht be that an anchor pc�st fence six feet high be erected within the boundary of the property and that live shrubbery which is three f eet high be planted and allawed to grow to the height of the Pence. Pezhaps th� City would desire to restrict the closing hours of this particular establishment or the type of lighta.ng system that tniqht be used. All of these conditions could be imposed by one method or another. The usuml metho$ is that the landawner i.a advised that hie land �ill not be recla�eeified unless he executes and files a covenetnt which limits the use of the parcel of land in specf.fic w�ys not co�on to other types of property similarly classified. When � this f.s acco�li.shed, the land is rezoned wi�hout overt reference to the covenant. It would nlso be possible to amend the zoning ox�dinance to permit the use on condition that the landawner covenant to use th� land, subject to certain conditions . This would be in the ozdinance o� zeaoninq. J a � � Mr. Stephen E. Stran December 15, 1969 ;4 p eqe Th ree Such zoninq could be eubject to the objection that it offends th� requirement thnt all zoning regulati�ns eha11 be uniform for each class or kind of building throughout ths district. It is also subject to the objeCtion th at in certain instances , you may be spot zoning. Zt should be noted, hawever, that judicf al attacks are ra�=ely moun ted where Canditional 2oning is in iasue and when it has been dttacked, such attacks have not generally been successful.. The utilization of thfe pro�edure would not require any new Ordinances but merely an exami.nation of the conditions upon which such rezoning would be granted and the execution of a legal, binding covenant so as to bind the property awner and future property owners . 3. Contract Zoninq. Contract Zoning is where a zoning amendment aut�Fioriz s a partf cular use only if the landowner enters into a Covenant to restrict the use in certain ways or where a zaning amend�teat is adopte8 only after the owner of the land executes and tile� 8 covennnt restricting the use of such lana. Restriction of usee should ba distinguished from the imposing of conditions in ozd�r to understand the difference between Contract � Zoning and Conditional Soning. For example, under Contra►ct Zoning the City might grant the rezoning request only if the property o�wner would be willing to file a covenant that only certain types of u$ea would be permitted or that the land would not be used for a certain purpose. The � Caurts have taken different views of such zoning and in certain instances have upheld this type of zoning and i.n other instances they have in8icated tthat it is improper. There has been no Missouri decision to decide thie particular point. Zt occu,te to me that in many instances , a legally exeauted Socument would be suf�icient to bind many people who would not wish to get involved in !! diapute with the City. To this extent such contracts ox covenante could be effective in achieving the desirad results . Eapecially, where these indivic�uals have to deal with the City at a later time. J►qain, suCh a contract or covenant would not xequire any action in teraie of amending the Ordinances but merely a =ea3ization of what the City is attemptinq to �chieve and the execution ot a legall.y binding covenant prior to the time the rezontng i�s qranted. Ccmclueion. The abovne material has been taken from American Law o Zon�.nq by Anderson, Val. 1; 58 . 17, starting �`' "; ,.. . .. f . . � ,. �� : f � ll Mr. Stephen E. Strom December 15, 1969 Page Four at page 604-620. I will continue to look for other possible methods in which to achieve this result but feel that we will be limited to the methods herein discussed. Very truly yours , . � . How ard C. Wr ght, . CI'�Y ATT�RNEY HCW/d� cc: Paul F. Frederick,► Ctty Manager Ivan L. ,�rvin, l�qor A21 Ci.ty Councf larn �, . �.. ��,;