Agenda - 11-25-1985 - Laserfiche WebLink

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i I • VE ZONING § 8.01[3] • 8-5 INCENTIVE [3]--Distinctions Incentive zoning should be distinguished from two other regula- tory devices: conditional and contract zoning's and builder exec- tions.i2 Conditional and contract zoning, like incentive zoning, are de- signed to allow more favorable uses of property. Since the rezoning of property may cause hardship to neighboring property owners or be a burden to the municipality,33 the applicant agrees to certain restrictive conditions that will ameliorate any negative effects of the change."In contrast, the award of an incentive bonus is usually an • administrative determination made by the planning cotamission or similar local body responsible for interpreting and administering the applicable zoning ordinance.15 Incentive inning involves general leg- 11 Conditional zoning may be described as a zoning change which permits use of a particular property subject to conditions not generally applicable to other similarly zoned land.See Scrutton v.County of Sacramento 275 Cal App2d 412,79 Cal Rptr 876(1969).In conditional zoning,the property owner covenants to perform certain conditions, perhaps including restrictions on use,dedications of land or physical improvements to the property.The municipality,however,makes no commitments to rezone. In "contract" zoning, however, the landowner enters into reciprocal - agreements with the local governing body.The owner promises to restrict the use - of his property in return for the municipality's promise to allow the rezoning. Contract zoning agreements have been held illegal by most courts as an ultra vires bargaining away of the local government's police power.The recent trend,however, is to uphold the validity of conditional zoning.See Church v.Town of Islip,Note 13 infra For a detailed discussion of"Conditional and Contract"zoning,see Ch.5 supra. 12 For a detailed discussion of"Builders' Exactions," see Ch. 9 infra. 13 See,e.g.. Church v.Town of Islip, 8 NY2d 254,203 NYS2d 866, 168 NE2d 680(1960),where the New York Court of Appeals upheld the right of a municipal- s ity to condition the rezoning of property upon the prior filing bythe.property owner of restrictive covenants.The court declared that the imposition of reasonable condi- tions, when necessary to ameliorate the potentially deleterious effects of a zoning change on neighboring property, is a proper exercise of the local government's zoning powers. The Church decision is fully discussed in Ch. 5 supra. 14 See Church, Note 13 supra Scrutron. Note 11 supra. See also Bucholz v.City of Omaha, 174 Nab 862, 120 NW2d 270(1963). Also,see Comment,'The Use and Abuse of Contract Zoning," 12 UCLA L Rev 897, 898(1965). 15 See Svirsky,"San Francisco:The Downtown Development Bonus System,"in The New Zoning 139, 158 (Marcus&Groves, eds., Praeger-Publishers, 1970). (zoning Law) I •