Reading the Alabama Supreme Court's decision in City of Alabaster v. Shelby Land Partners, LLC, No.1120677 (Jan. 24, 2014), we are reminded of that episode of Star Trek where the gang accidentally ends up in a parallel universe, where things are all backwards. That's the episode that probably started the meme that in order to portray someone as "evil," just give 'em a Van Dyke, like mirror Mr. Spock. Well, to an outside observer like us, nearly every party in the City of Alabaster case may need a beard, because the situation, with the exception of the final result, seemed so backwards from the situation that we're used to in zoning cases.
Here, the developer wanted to make less intensive use of its property -- it asked for a downzoning to allow a senior residence in a commercial district -- and asked the City for a change in designation from B-3 Community Business District to R-6 Multifamily Residential. In most places, this type of downzoning would be considered a good thing, a cakewalk at the city council: senior residences don't generate that much traffic, nor do they contribute to the need for new schools and infrastructure.
But members of the public testified against the proposal, the city staff recommended denial, and the City eventually denied the application, concluding that Alabaster had enough houses and that the proposed downzoning and development would take property from income and property-tax generating commercial activities to residential. The City even put on testimony that the "highest and best use" of the land was for commercial uses.
So off to court the developer went, eventually obtaining an order from the trial court that the downzoning denial was a violation of the usual suspects in these type of cases: due process, etc., etc. The court issued an injunction, requiring the City to grant to downzoning application.
Uh oh, you say, what about the rational basis test usually applied in zoning cases?
So did the Supreme Court of Alabama, which reversed, holding that Alabama applies the "fairly debatable" and "substantial relationship" rules, which means that courts generally take a hands-off approach to zoning matters, unless the City has -- to use our metaphor-du-jour -- ventured completely into another universe. As Gideon Kanner pointed out, the rational/conceivable basis test as currently applied by the courts means that judges simply will not examine the government's rationale for adopting a law, even if that means stretching the basis of conceivability into the province of Star Trek:
In my post-Midkiff lectures, I have been using as an example of the absurdity inherent in this judicial formulation a hypothetical taking for senior housing for elderly Martians living among us. Would that pass muster as a "public use"? Hyperbole, you say? Be careful. In a prime example of Oscar Wilde’s dictum that life imitates art, I offer for your consideration the pertinent part of the transcript of an oral argument before the U.S. Court of Appeals for the Ninth Circuit. There, the U.S. Justice Department asserted that, if Congress were to enact laws for the benefit of unseen and undetected "space aliens" among us, the courts would have no alternative but to approve it as consistent with the Constitution:. . . .JUDGE FLETCHER: . . . Is it conceivable that space aliens are visiting this planet in invisible and undetectable craft?MR. YELLIN: Is it conceivable?JUDGE FLETCHER: That’s my question.MR. YELLIN: Yes, it’s conceivable.JUDGE FLETCHER: And that would be a basis for sustaining Congressional legislation, if . . . the person sponsoring the bill said, "Space aliens are visiting us in invisible and undetectable craft, and that’s the basis for my legislation," we can’t touch it?MR. YELLIN: If Congress made a finding of that sort?JUDGE FLETCHER: That’s my question.MR. YELLIN: Your Honor, I think if Congress made a finding of that sort, I think, Your Honor, it would not be appropriate for this Court to second guess that.JUDGE FLETCHER: Okay, in other words, "conceivable" is "any piece of nonsense is enough."
Gideon Kanner, "Unequal Justice Under Law": The Invidiously Disparate Treatment of American Property Owners in Takings Cases, 40 Loyola L.A. L. Rev. 1065, 1080-81 & n.68 (2009) (p.s. - the government won that case).
And appellate courts really don't like it when trial courts order municipalities to affirmatively change zoning, even if it is to a less intensive use.
The Alabama Supreme Court concluded that although the R-6 zoning designation was plausibly reasonable, so was the B-3 zoning, and just because the downzoning was reasonable did not mean that the existing zoning was unconstitutional.
Given the highly deferential standard we must apply, we cannot say that the City's decision to deny the application to rezone a portion of the City's largest commercial area for multifamily residential use was not "fairly debatable," particularly given the expressed desire to maintain the commercial character of the community business district.
Slip op. at 23.
A desire to maintain the "commercial character" of land, a city that wants to zone for the highest and best use, and a public that testifies in favor of more intensive uses? Most developers we know would only wish that Star Trek's transporter was a reality so that they could beam their land to such a jurisdiction.