Down zone of property without notice

Visitor Question: Must a landowner be personally notified that his property is being Down-zoned?

I bought two parcels of property totaling about 120 acres in southern California 9 years ago. It was zoned (W-2) "Controlled Development Zone" but did have enough Permitted uses and Conditional uses to make it a valuable holding. When a prospective buyer inquired to the city about the zoning he was told it was re-zoned to (OSG) "Open Space General" about 4 years ago. I was flabbergasted as this was the first time I heard that. I called the city Senior Planner and asked him why I was not informed. He said it was done as a update of a general plan and the City does not have to inform each landowner if there are more than 1,000 mailings. Because of this change, my property value is one quarter of what it used to be. I don't know how the other people in this city were affected, but I bet very few if any had their property Down-Zoned.

Can that be true? Can they devalue my property without even telling me? Please help with any guidance on this subject.

Thanks

Darrel

Editors Reply: Yes, it is certainly possible that the city down-zoned you and others without any notice if it was done as part of a general or comprehensive plan update process. Many times city attorneys will say that news reports and publicity surrounding comprehensive plan update serve as sufficient notice to meet the intent of state law requirements for providing notice to landowners and their immediate neighbors. It sounds as if that is exactly what has happened to you.

Since that is where you find yourself, we suggest two possible courses of action for your consideration, each with its own costs and potential rewards.

The first option that might bring you some relief would be to apply to have your zoning changed to the original category, W-2 Controlled Development, if that category still exists. If there is no longer such a category, you could apply to be rezoned to the closest district to the permitted and conditional uses that attracted you to that zoning classification in the first place.

In weighing whether you want to do that, you would want to evaluate (a) the cost of the application plus any attorney's fees or fees for another type of spokesperson that would be common in your jurisdiction, (b) the likelihood of opposition from nearby neighbors, and (c) the text of the new comprehensive plan, including any description of and rationale for the W-2 zoning classification that you find there.

The plan might state the criteria for that zoning, and that in turn might give you some hints about why your particular property was down-zoned. If the plan language strongly opposes the development of land situated in a similar way to yours, then your chances of succeeding in the rezoning application may well be poor even if no opposition from the public surfaces.

You also could read the text in the plan to see if you can understand any reason that the city thought they had too much land zoned for development. For instance, do you they talk about the need for more open space for conservation, air quality, wildlife habitat, or recreational purposes? Do they talk about the inability of the city to meet the infrastructure, social, and environmental needs of a lot more people? Try to understand what might be behind the down-zoning. Your effort is better focused there than on your understandable sense of outrage that you were not notified.

If you decide that you don't want to apply for rezoning back up to the original classification because you don't want the hassle or expense, or believe you cannot win, then your second and probably less satisfactory option might be to sue.

However, here you are guaranteed a considerable amount of legal expense, and your outcome is by no means assured. In fact, many courts grant cities what is called a presumption of validity, meaning that whatever the city council approves is going to be assumed by courts to be in the public interests unless it violates state law or well-established and specific legal precedent. So an individual's chances of winning a lawsuit against a city are never all that high, but in your case, that fact is compounded by the fact that you are now facing an action that was taken as part of a general plan update. This means the city can be very effective in arguing that this action is consistent with the comprehensive plan, since indeed it was implemented as part of the revision of that plan.

Of course the money damages involved would be quite substantial, it sounds like, so you might decide that it is worth it to you to go this route. If you are interested in exploring this further, we suggest an appointment with a land use attorney who has represented quite a number of rezoning applicants in your city. This is an occasion for a specialized attorney, and not necessarily one who just likes to spar with your particular city either.

If you decided on a lawsuit, you could make a due process argument since you did not receive any notification. A judge might or might not sympathize. But aside from that, you would have to show in court that the down-zoning doesn't make good planning sense.

So one way or another, to get justice for yourself, you are going to have to dig into what that general plan update did and said (or pay someone to do it). Ask for help from the city planners, other planners you or your friends might know, or maybe a nearby university. But it sounds as though you are savvy about this stuff yourself, so our advice is to start reading.

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