Thursday, March 17, 2011
It's Rational and Reasonable
The very nature of zoning is discrimination in the sense of distinguishing one thing from another and treating the different things differently. Absent First Amendment issues that can arise with adult entertainment uses, religious institutions, and the like, there is considerable deference to the distinctions a municipality or county enshrines as policy in its zoning ordinance. The general rule is that a zoning provision is valid unless it is arbitrary and capricious, or denies the landowner all reasonable use of their land. While there is no silver bullet to prevent any legal challenge, it is prudent to state in the zoning ordinance a reasonable basis or foundation for the distinctions being made. This does not necessarily have to be supported by a long list of particular evidence or findings (although the inclusion of solid evidence, if it exists, is desirable) so long as it is made clear that the legislative body adopting the ordinance made its decision on a rational and reasonable basis. And though there may be legal authority to completely exclude a type of use from the jurisdiction, regulating a lawful use so that it is not totally excluded, either formally or de facto, can go a long way to avoiding legal challenges.
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