The Basics of Zoning for City and Town Officials 2016 League Annual Conference League of Arizona Cities & Towns Frank Cassidy, Marana Town Attorney August 25, 2016

Recent changes to cities’ zoning authority Sign regulations after Reed v. Town of Gilbert (2015) Regulation of vacation rentals after SB1350 “Leading edge” or “outside the box” zoning regulations after SB1487 Zoning exactions after Koontz v. St. John’s River Water Management District (2013)

The purpose of zoning Traditional view: Zoning protects the public health, safety and general welfare by separating incompatible land uses and by organizing, arranging, and locating land uses to optimize available public services Modern view: Zoning protects the public health, safety and general welfare by addressing any valid government concern

Brief history Building requirements go back nearly four millennia, to the Code of Hammurabi (1750 BC) Planning requirements were brought to the New World by the Spaniards with The Laws of the Indies, promulgated by King Phillip II of Spain in 1573 and codified in 1681 Zoning requirements were common in the early colonial experience

Modern legal framework of zoning Federal State Local Private

Modern legal framework of zoning Federal government land use regulation Endangered Species Act (“ESA”) Clean Water Act, especially Section 404 Religious Land Uses and Institutionalized Persons Act (RLUIPA) Fair Housing Act

Modern legal framework of zoning State government land use regulation Planning enabling legislation (Growing Smarter) Zoning enabling legislation Subdivision enabling legislation Floodplain enabling legislation Private Property Rights Protection Act (2006 Proposition 207)

Modern legal framework of zoning Local government land use regulation Zoning regulations and official map Comprehensive plan Subdivision regulations Floodplain regulations

Modern legal framework of zoning Private land use regulation Nuisance law Covenants and deed restrictions (“CC&Rs”) Affirmative and negative easements

Zoning nuts and bolts Sources of government land use regulation The police power: to provide for the general health, safety and welfare of the public The power of eminent domain: to take private property for public use, paying “just compensation”

Zoning nuts and bolts Constitutional limitations on these government powers Right of due process Procedural due process Substantive due process Protection against “takings” without “just compensation” Physical taking of property – condemnation of private property for public infrastructure improvements or redevelopment projects Regulatory taking of property – When a regulation restricts land use so much that it is tantamount to a physical taking Exactions (dedications, impact fees)

Zoning nuts and bolts Constitutional limitations on these government powers Right of equal protection Right of freedom of speech Right of freedom of religion

Administration issues Arizona zoning enabling statutes Nonconforming uses & vested rights Planning commission Hearing officer Boards of adjustment Enforcement

Public involvement General plan adoption and amendment Citizen review process for zoning, rezoning, specific plan adoption, and modification of regulations or conditions

Public hearings Arizona Open Meeting Law Legislative processes Judicial and quasi-judicial processes

Special zoning topics Arizona Property Rights Protection Act Cell towers Religious uses under RLUIPA Historic preservation Exclusionary zoning Growth management