International Municipal Lawyers Association - Local Government Blog

Void ab Initio, Ultra Vires and Anyone Want to Buy Some Extra Copies of a Zoning Ordinance? | January 12, 2009

Posted by: Dwight Merriam, Partner, Robinson & Cole, LLP

Stone County, Missouri, is 463 square miles and has a population of 31,382 as of 2006. It lies west of Branson and extends to the Arkansas border on the south at Blue Eye.

On Friday, January 9th, the zoning office closed after a judge ruled the County’s zoning procedure was invalid and ordered the County to stop exercising zoning powers.  Maybe one of our readers has seen such a ruling before resulting in the shutdown of zoning operations for an entire local government jurisdiction, but I can’t recall one.

Click here for a news story on the situation.

Click here to read the judge’s decision.

Basically, what happened started in 1995 when the County adopted (so it thought) planning and zoning under the state’s enabling legislation including an official master plan, zoning regulations, subdivision regulations and a procedural manual, all to implement the comprehensive plan. As part of that process of enacting zoning, the County adopted a fee schedule.

The County and its largest residential developer got into a dispute over the approval process and development fees. The County Counselor “confirmed on the record that there was no order from the County Commission authorizing a fee of $30.00 per unit condominium development as a special use permit fee.” By the time the case went to trial, the developer had paid at least $7,250.92 in special use permit fees as part of the total of $64,121.82 in building permit fees, subdivision plat filing fees and special use permit fees.

The problem with the ordinance was the County, instead of establishing zoning districts, “made all existing uses permitted and grandfathered into Stone County’s new zoning scheme” as part of its “Existing-Use Zoning Procedure.” The court held that this was contrary to the requirements of the zoning enabling statute and ruled: “No zoning powers shall be exercised by Defendants until such time as Defendants comply with [the zoning enabling statute] by adopting a zoning scheme with original zoning districts for various classes and uses,…”

The court spoke with some directness on the issue of accounting for the fees: “The County’s evidence was conflicting and unbelievably inaccurate with regard to receipts and expenditures regarding the operation of the planning and zoning process.”  The court ordered a credit to the developer of $64,121.82 against all futures fees.

Attention all planning consultants:  Be on the look out for an RFP from Stone County for a new zoning ordinance.

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This blog is made possible by the International Municipal Lawyers Association (IMLA), but may include guest bloggers (who are attorneys with experience in local government matters) who might or might not work for IMLA. Their views (and those expressed on this site) do not necessarily express the views of IMLA.







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