By Jones Osborn II

It happens all the time. A property owner fails to get the zoning he wants, or gets zoning he doesn't want. He immediately turns to his lawyer and says, "Can we sue?"

Failure to Get Zoning. First, let's look at the case where the owner applies for zoning and doesn't get it. In a recent actual case, the property owner applied to change his zoning from light industrial to general industrial. The change was consistent with the general plan. The property was bordered on two sides by light industrial and on two sides by general industrial. The planning staff recommended approval. The planning and zoning commission unanimously recommended approval. No one objected. In spite of all this, the County Board by Supervisors denied the change without apparent reason.

The property owner sued and won. The trial court ordered the Board of Supervisors to grant the requested zoning. In ordering the change in zoning, the trial court said the Board's decision was arbitrary, and that there was not even a "fairly debatable" issue as to whether the zoning was proper.

It was a short-lived victory, however.

The County appealed and won. In reversing the trial court, the appeals court said that the courts had no power to order zoning changes. Zoning is a legislative function, not a judicial one. The courts cannot act as a "super zoning commission." Under the doctrine of separation of powers, the courts cannot order a legislative body to grant new zoning, no matter how compelling the case.

Unwanted Zoning. The rules are different when the government imposes unwanted zoning on someone's property. In this situation, the zoning is subject to challenge in the courts.

However, it's not easy. The owner normally must show that the zoning leaves the property without any reasonable use. It is not enough to show that the property owner suffered a large financial loss from the rezoning, or that the new zoning is inappropriate or unwise. He must go further and show that the property has been rendered practically useless. If he can do this, he can force the government to either set aside the new zoning and replace it with the prior zoning, or to purchase the property for its fair market value.

Conclusion. If the government denies your request for new zoning, you are out of luck. The courts cannot help you. However, if the government puts new zoning on your property that leaves it without any reasonable use, you may have a chance to get the zoning overturned in court--but even then it won't be easy. It is always an uphill battle to challenge zoning in courts, but usually worth the fight if the value of your property has been destroyed.