The Principle of the Two Tier-Test for Abuse of Discretion - Essay Example

? Martin Jaffe UPP 553-LAND USE LAW 26 May MIDTERM PAPER ASSIGNMENT I. Under the law, Able is allowed to file an “appeal within ten (10) days from the time the Zoning Board of Assessment (ZBA) renders a final and executory decision and filed in the board’s office. The appeal is in the form a verified petition to be filed in a court of record” (Dougherty 16). “Another remedy which is available to any person or persons separately or jointly aggrieved by any decision of the zoning board of appeals may take an appeal to the superior court. Said appeal to the superior court shall be by a writ of certiorari as provided by State law. The aforementioned appeal must be filed within 30 days from the date of the decision of the board of appeals, and failure to file said appeal within the 30-day period shall make the decision of the board final and executor” (Section 1809 Article XVIII Zoning Board of Appeals). In Able’s verified petition, he can raise the following contentions: 1. That the board (ZBA) committed a grave abuse of discretion by denying his application for variance. In the case of City of Dallas v. Vanesko, 189 SW 3d 769 (2006), it laid down the principle of the two-tier test for abuse of discretion. The decisions of the ZBA, which is acting as a quasi-judicial body can be the subject of an appeal before a state district court by filing an application for a writ of certiorari, as a mode of appeal. “The reviewing court shall not be allowed to replace its own judgment for or in behalf of ZBA. However, the presence of any aggrieved party who will challenge the decision of ZBA must be able to establish that the board has only reached a single decision. It is the reviewing court which has the power to render a decision in finality. Hence, appeals based on the ground of abuse of discretion is akin in the nature of trial de novo, where the appeals court conducts a new trial, as if no trial has been held in the first place, as it overturns the determination made by a lower court. It shall be the appeals court’s duty to determine if the board acted in bad faith, malice or gross negligence” (Dougherty 16). 2. In the case of Lucas v. South Carolina Coastal Council, 505 U.S. 1003 (1992), the court ruled that the “total takings test” shall be applied when the property, which is the subject of the actual taking is being made valueless and use would not constitute a common law nuisance, then such regulatory taking requires compensation. Able can raise the issue that the challenged zoning forbids all economically viable use of his land. In an analogous case involving similar facts, Mr. Lucas was able to show that the South Carolina Coastal Commission had forbidden practically all development of his beachfront property, amounting to $975,000. Even if the regulations do not destroy entirely all uses of the owner’s land, a favorable decision may still be granted to him provided he will establish that there is a severe economic damage on him and that the temporary interference with an owner's use of his property breaks a distinct investment expectation, may still constitute within the concept of taking for which the Constitution requires that compensation be paid. In the final resolution of this instant case, Able’s contention is untenable. It has been a time-honored principle that zoning is a valid exercise of the police power of the state. It is the comprehensive regulation of land use in a city which imbued with public interest and such power has been recognized by the State. “In the case of Connor v. City of Univ. Park, 142 SW 2d 706, 712, the court held that zoning is intended to conserve property values and encourage the most effective use of property throughout the city. As cited in the case of Strong v. City of Grand Prairie, 679 S.W.2d 767, 768, the basic purpose of all restrictive zoning ordinances is to prevent one property owner from committing his property to a use which would be unduly imposed on the adjoining landowners in the use and enjoyment of their property”(Dougherty 1). While the case of Galveston Historical Found. v. Zoning Bd. of Adjustment, 17 S.W.3d 414, 417, ruled that zoning promotes the welfare of the entire community rather than protects the value of individual properties for the benefit of one party. Hence, Able’s case will not prosper. The decision of ZBA must be upheld because it will redound to the benefit of the whole community and not just a single individual. As aptly put in the case of “City of Brookside Vill. v. Comeau, 633 S.W.2d 790, 792, zoning regulation is a recognized tool of community planning which allows a city, in the exercise of its legislative discretion, to restrict the use of private property” (Dougherty 1). II. Under the law, Baker is allowed to file an appeal within ten (10) days from the time the Zoning Board of Assessment (ZBA) delivers a decision that does not work to her advantage, which must be filed at the board’s office. The appeal is in the form a verified petition to be filed in a court of record. Another remedy which is available to Baker is to file an appeal to the superior court. “Said appeal to the superior court shall be by a writ of certiorari as provided by State law. The aforementioned appeal must be filed within 30 days from the date of the decision of the board of appeals, and failure to file said appeal within the 30-day period shall make the decision of the board final and executor” (Section 1809 Article XVIII Zoning Board of Appeals). Baker can raise the following defenses in her petition: 1. That the special permits for Able’s new house and seawall and a variance for the rear yard setback are hazardous to the health and safety of the community; 2. That the house of Able once it is built shall become a nuisance or menace to the entire neighborhood. Thus, by granting the special permit, the ZBA failed its duty to protect and safeguard the interest of the community by favoring only one individual property owner, as against the benefit of whole of the community. Baker’s case will prosper. Under the law, “variances allow deviation from the literal terms of the zoning ordinance, provided that it is not contrary to the public interest, and due to the special conditions of the property involved, literal enforcement of the zoning ordinance would result in an unnecessary hardship” (Wilson 10). However, in this case, if Able builds a house, Baker’s properties and other down-stream properties will be affected by the construction. The testimony of Able’s engineer is self-serving because it will benefit his client by earning economic return for Able’s property. As Able’s engineer, he is paid by Able and considered his employee. It is undeniable that the engineer earns income from Able which is precisely the reason why he will testify that the special permit is proper, for the sole purpose of monetary gain for Able’s property. In the case of Board of Adjustment v . McBride, 676 S.W.2d 705, the court ruled that a variance could not be granted for purposes or reasons of convenience, profit or caprice. Hence, the special permit granted to Able should be withdrawn because the construction will redound solely for his own benefit. III. Charlie’s arguments are untenable. Well-settled is the principle that vested rights granted by the statute are as follows: 1. “A regulatory agency may consider a permit application solely on the basis of the “orders, regulations, ordinances, rules, expiration dates, or other properly adopted requirements” effective when the “original application” is filed; 2. If there are a series of permits, the application for the first permit in that series triggers the vested rights; and 3. All permits required for the project are considered a single series. Specifically, preliminary plans, subdivision plats, site plans and all other development permits for land covered by preliminary plans or subdivision plans are collectively a single series”(Wilson33). a.) Applying the above principles, Charlie cannot claim that he fully complied with C-1 restrictions. In the first place, the first permit which was issued to him was solely for the purpose of automobile service stations, without the retail grocery and convenience stores in the original application. He is fully aware that the convenience store and mini-market are only allowed in C-2 District zone. The fact that only two (2) of the pumps remained in the operation out of the six (6) pumps in his original application was reason why he was granted a permit to operate as a gas station primarily. Now that he eliminated the four (4) gas pumps to accommodate the convenience store and mini-market, it only goes to show that there is a palpable violation committed by Charlie the moment that he set-up the commercial establishments because they were not included under the C-1 District permit previously issued to him. b. Charlie cannot claim that he acted in good faith. The first permit which was applied was solely for the purpose of operating as a gasoline station. Based from his subsequent actions of expanding the gasoline station and converting it to a mini-market will manifest that his intention was really to build a commercial establishment from the very start. Hence, there is evident bad faith on the part of Charlie. c. Charlie cannot put up the defense that he merely relied on the inducements of the city planning officials. He knew from the beginning that his original application was to operate as an automobile gasoline station. He cannot claim that the city is stopped from revoking his permit. Well-settled is the rule that permits are merely granted by the State as a privilege and can be revoked anytime if there is palpable violation of the law. He cannot argue based on his whims and caprices without any legal basis. Furthermore, all permits required for the project are considered a single series. Thus, the preliminary plans, site plans and all other development permits for land covered by preliminary plans or subdivision plans are collectively a single series. Henceforth, the original application shall govern. And in Charlie’s case, his first application was for the purpose to operate as an automobile service station and he should only conduct his business as such. Works Cited: Board of Adjustment v . McBride, 676 S.W.2d 705 City of Brookside Vill. v. Comeau, 633 S.W.2d 790, 792 City of Dallas v. Vanesko, 189 SW 3d 769 (2006) Connor v. City of Univ. Park, 142 SW 2d 706, 712 Dougherty, James L. Jr. and Reid C. Wilson. Zoning: A Quick Review of Concepts, Words of Art. < http://www.wcglaw.net/docs/1092085219_Fundamentals-of-Zoning-2-12-02.PDF> Galveston Historical Found. v. Zoning Bd. of Adjustment, 17 S.W.3d 414, 417 Lucas v. South Carolina Coastal Council, 505 U.S. 1003 (1992) Reid, Wilson C. Fundamentals of Zoning. Web. 2002. Retrieved on 16 March 2011, from, Web. Retrieved on 16 March 2011, from, Strong v. City of Grand Prairie, 679 S.W.2d 767, 768 Read More