CONDITIONAL USE PERMIT – AUTHORITY TO DENY

A recent case, Alexander & Lindsey v. Platte County  involving the denial of a preliminary plat by Platte County resulted in the Court of Appeals  directing the County to approve the preliminary plat because the plat complied with all of the requirements of the subdivision regulations.

Platte County Courthouse

Sounds pretty routine, but there was a lot more going on in this case than meets the eye.  This case is discussed in an excellent Post by Harry’s Styron in which he describes the developer like he had been pulled through a knothole backwards. The most important principle, which is not discussed in this case is that public officials should follow the Rule of Law and treat all citizens equally in accordance with the law. After all, when public officials are sworn into office they usually take an oath to follow the constitution and the laws in carrying out their duties.

In the Platte County case staff warned County officials repeatedly – at least three times – that the plat complied with all of the subdivision regulations, nevertheless County officials found reasons for denying the preliminary plat for reasons that were not in the ordinance and were far-fetched. When your staff tells you – as they did in the Platte County case – that the plat complies with all of the ordinances red flags ought to come up and alarm bells ought to go off.

Red Flag Up

Red Flag Up

So why did they do this? The dynamics of this are pretty common when citizens who live in the area oppose a development. Maybe the opponents in the Platte County case were just NIMBY’s, although they made some pretty telling points, such as the water system pressure was inadequate to fight fires and the sewer lagoon could affect adjoining property and the public. What could be more fundamental than adequate firefighting pressure and the impact of a sewer lagoon on adjoining property and the public? This is basic and something that should be considered when land is being developed, even at the preliminary plat stage. There was nothing wrong with these ideas, except the subdivision regulations simply did not address these issues.

How do you deal with concerns that are legitimate like inadequate fire fighting pressure and the location of a sewer lagoon? Certainly not on an ad hoc basis like they did in Platte County.  What is needed is an amendment to the subdivision regulations to deal with issues that are legitimate.  Amendments to the subdivision regulations ought to be broad enough to give county or city officials the ability to exercise discretion although options should not be unbridled. While this is no easy task it is something that can be done.

Of course, Platte County officials threw in a few other reasons like the lack of specification of proposed uses, a matter that is dealt with under the zoning law. To top it off they included a statement that there was potential for traffic hazards from the proposed driveways even though Platte County officials had in hand a report from MoDOT that stated MoDOT did not see any safety problems due to the driveways. What were they thinking? This of course destroyed the creditability of the Platte County officials.

In the Platte County case the County got off pretty easy with the court just issuing an order to approve the plat. Most of the time, the developer will allege that there has been a violation of due process and equal protection under section 1983 of the Civil Right Act allowing the developer to get damages and attorney fees. In Furlong v. Kansas City, the Plaintiff  got $174,871 in damages and $148,435 in attorney fees in a case very similar to the Platte County case. In addition, it is also possible to get punitive damages against public officials when personal animus is shown against the developer. When faced with a situation where the developer has complied with the ordinances governing the subdivision of property public officials can explain their actions in voting to approve the plat by making it clear  that they have an obligation to uphold  the Rule of Law.

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