Can zoning be changed without notification

Visitor Question: Can the planning and zoning department change the zoning on my property without any notification?

Editors' Reply:

Oh, this really shouldn't happen. First of all, a planning and zoning department might initiate a rezoning, but it cannot pass it into law. In all states of which we are aware, the governing body, not hired staff, makes zoning decisions.

It would be very poor practice on the part of the city government to do such a thing, because it would leave them open to an accusation of denying you your due process of law.

This would be particularly true in the case of a down-zoning that would give you fewer or less lucrative options for use of your property.

Having said that we think it "shouldn't" happen, it possibly may be ruled legal for your property to be rezoned without notification. Sometimes municipal attorneys will think that if the city plans a city-wide rezoning or rezoning of an entire area, it is not necessary to notify every single property owner by mail. In that case the "notice" might be in your local newspaper or through other media, such as a city newsletter. If you live out of town, you might have missed the "notice."

Another thing that may have happened is that a notice actually was mailed to you at your address of record for purposes of paying real estate taxes. If the address was incorrect or the mailer did not arrive, the city cannot be held legally responsible in many cases.

You know that this site doesn't give legal advice as such; if you want to pursue the matter legally, you will need your own attorney. We're just giving your generalities.

So the questions to ask are:

1. Is this rezoning a part of a larger area rezoning initiated by the city? If so, your notification may have come through media and not an individual letter. We don't like this way of doing business and don't agree that most zoning ordinances would allow such a thing, but sometimes attorneys will say that it is all right.

2. Is it possible that the notification went astray, either because of an incorrect address recorded somewhere in your city or county government, or because of simple postal error?

Then you have to decide what to do about it if the rezoning already has occurred. Your first option is to go the political route, perhaps by making statements or starting a petition. The same group that changed your zoning can change it back.

Your second option is to take a legal approach, hiring an attorney and suing or threatening to do so. As we've already hinted, you have a "due process" argument already on your side. You also may have good planning practice supporting your case.

However, be aware that a city has a "presumption of validity" on its side in court, meaning that courts in many states presume that the governing body is acting on behalf of the general welfare.

If the rezoning isn't completed yet, as would be suggested by the way you talked about the planning and zoning department, you will want to learn about re-zoning opposition quickly and organize some supporters of your position. In that case, don't worry too much about the lack of notification; concentrate on the best arguments for why the rezoning shouldn't happen.

Comments for Can zoning be changed without notification

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Can a township change zone without a recorded decision?
by: Anonymous

The property I own is marked in the city plan as open space. It appears that the township never had a meeting with a resolution to change the zone to open space; is that legal?

It appears the zone was changed without the planning or any other committee meeting to make such decision; however, someone changed it in the plan without having this decision. Does the city have a legal leg to stand on?

Would appreciate your opinions.

Editors Reply: Your question might reveal the source of the confusion. You referred to the "city plan" and in another place to "the plan." A future land use plan, which commonly is contained in what is called a comprehensive plan or master plan, is different from zoning. There are also specialized plans of all sorts for districts, neighborhoods, and the like. Think of a "plan" or "city plan" as a statement of intention, while zoning refers to actual, current land use law. Or think of a plan as a broad indication of a future direction, while zoning is a specific permission.

So the city very well could have adopted a plan that shows your property or someone else's as open space, and it is very common for city plan to be made and changed without any specific notification to property owners. Approval of a plan no doubt would be made through a resolution, but you might not recognize it if you were just looking through a list of resolutions.

In contrast, zoning has to follow a specific set of procedures outlined in state law and perhaps in your local zoning law too. As we noted in our original answer, property owners usually initiate a request for rezoning of their own property, but if the city (or township in your case) wants to initiate a rezoning, they can do so, but typically they notify all the impacted property owners. However, some attorneys for a city or township would allow this notice requirement to be waived if they feel that there has been substantial publicity all over town about a rezoning that affects large numbers of property owners or perhaps the whole jurisdiction. However, in that case too, there should have been, and always has been in our experience, a resolution that memorializes the decision.

So in your case, if indeed you are talking about zoning (and not a city plan), and there is no resolution, ask the township's attorney to explain to you how the rezoning was approved. If they avoid the question or the answer makes no sense, you might have to hire your own attorney if the stakes are high enough.

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