NIMBY = Public Eminent Domain?


Soooo, here’s the story about my little old township. Over the past decade, many things have changed; population growth, infrastructure, residential developments, everything relating to a booming area. With this growth, the Township administration appears to have been a bit overwhelmed in this period. Bygones…

Picture of land under scrutiny. What’s missing is all the development happening outside the frame of the picture.

The problem now is that people are angry that a landowner/developer has decided to “destroy” this western edge of the valley. And it seems that they won’t be happy until said owner abandons all hope of building anything on his own property.  So these NIMBY folks seem to be employing a form of Neighbor Eminent Domain.  Is this any more appropriate than local governments using said instrument to “improve” certain districts?

Let ms start from the beginning. Apparently back in 1998, the Township decided that a by right use should no longer be allowed in a certain zone.  Developer who owned land with this zoning decided he would get a plan for that use approved before said zoning change occurred.

Here’s the quick timeline on this case directly from the Township and local newspapers;

  • December 17, 1998 – The Board of Supervisors adopted a revised zoning ordinance that allows quarries as a permitted use in the Agricultural/Rural Zoning District.
  • May 7, 2009 – After a legal review of the then-current zoning ordinance, the Board of Commissioners declared certain requirements concerning residential uses within the Agricultural/Rural Zoning District may be unconstitutional and commenced a 180-day curative amendment process to correct this invalidity and protect the Township from potential legal challenges.
  • September 22, 2009 – David M. Jaindl and Jaindl Realty, L.P. submitted conditional use applications and plans for an approximately 700-acre quarry and accessory uses within the Agricultural/Rural Zoning District. The submission of these applications “grandfathers” this quarry proposal and protects it from future amendments to the zoning ordinance.
  • October 29, 2009 – The Board of Commissioners adopted a zoning amendment that created the Agricultural Preservation Zoning District in place of the Agricultural/Rural Zoning District and revised standards concerning residential developments and other uses within this new Zoning District. This amendment also eliminated quarries as an allowed use in this area of the Township.
  • January 4, 2010 – The new Board of Commissioners takes office and appoints Special Counsel to represent the interests of the Township in what is anticipated to be costly and lengthy litigation related to Jaindl’s conditional use application for a quarry.
  • July 2010 – Zoning changes approved by ZHB.
  • February 2, 1011 – County Judge puts hold on Appeal being heard at the LMT Zoning Board until she can rule on the procedural issues in this case.
  • August 2011 – County Judge overturns zoning changes based on procedural errors. “..the township didn’t properly notify the public of the changes…” and that while the township made a “good faith effort”, the “advertising was misleading.”
  • November 2011 – ZHB verbally announced decision to deny the substantive validity appeal.
  • May 2012 – Board of Commissioners approve subdivision plan creating parcels based on revised zoning districts.

The last entry – the approved subdivision plan – was done under some jeopardy.  The County judge ruling is being appealed by the Township and the Developer and that has yet to be resolved.  The implication is this, should the county judge ruling be overturned, then the developer can move forward. Should the decision be upheld, presumably the entire zoning change and now approved subdivision would have to be re-approved?

At any rate, I can understand public opposition. I can.  What I cannot understand is the lack of respect given to public staff and officials who are for the most part working for the genuine interest of the public.  As a matter of fact, these folks making all  the noise went through the effort to change our township to a first class version and essentially have all the commissioners, etc. re-elected. In doing so, their support got certain folks elected.  The idea, just like our presidential election, is that the newly appointed officials would somehow have tendencies based on their political leanings. Which is what apparently didn’t happen in this case.

At the end of the day, I’m not sure anything positive comes from such disgruntled parties. No one needs unhappy neighbors.  Considering the land is already owned by the developer and not under an agreement, he has all the time in the world…

I wonder who will win?

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About Kevin
Hi… I am a husband, father, brother and neighbor. I am employed as a Civil Engineer and have enjoyed playing the drums for the last 30+ years.

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