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Click here for the full text of this decision FACTS: Super Wash contracted with White Settlement to buy land on which to build a car wash. The sale was premised on Super Wash getting all necessary permits and approvals. Six months later, the city issued a building permit that was based on the plans and specifications originally submitted by Super Wash. The plans clearly showed an exit onto Longfield Drive. The city’s zoning map did not note that a 1986 ordinance changed the zoning classification for that area, so the plan was based on the old ordinance. The ordinance stated: “This change of zoning is expressly conditioned upon the owner and/or occupant, now or later, of this property constructing and thereafter maintaining a six-foot wooden privacy fence with brick columns on Longfield to the building line on Cherry Lane in accordance with the requirements in the Building Code. Failing these conditions, there shall occur an automatic revision to”MFM’ Multi Family Medium Density zoning classification.” A week later, residents in the area notified building officials of the zoning ordinance. Consequently, on Feb. 12, 2001, a building official contacted Super Wash to tell them a fence would have to be built along Longfield Drive, and that the curb cut-out for the driveway would have to be widened from 18 feet to 24 feet. Nearly three weeks later, however, after researching the 1986 ordinance further, the city informed Super Wash that it would have to modify its plans again. This time, no curb-cut at all would be allowed. Super Wash revised its site plan, though it did so under protest and without waiving or relinquishing any rights to complete construction. Super Wash then challenged the validity of the ordinance in court. Super Wash filed its motion for partial summary judgment on the grounds that the condition requiring a fence on Longfield Drive violates the Zoning Enabling Act because the fence condition is not uniform with conditions on other property classified as thoroughfare commercial; the condition requiring the fence is impermissible contract zoning; and the reversionary clause is invalid under the Zoning Enabling Act, impermissibly delegating the city’s legislative power. The city filed its motion for summary judgment on the grounds that the ordinance was validly passed pursuant to established procedures; the ordinance is entitled to the presumption of validity and enforcement, and there is no evidence to rebut the presumption; Super Wash has no standing to challenge the ordinance; the ordinance was validated by the legislature; the city cannot be estopped from enforcing the ordinance; and the reversionary clause in the ordinance is not at issue in the case. The trial court granted the city’s in its entirety without explanation, and Super Wash’s motion was denied in its entirety without explanation. HOLDING: Affirmed in part; reversed in part. The court first considers whether Super Wash has standing. The ordinance specifically limits Super Wash’s fundamental right to use its property. Therefore, Super Wash has sustained direct injury and it has an individual interest that is distinct from the public general interest in the ordinance’s validity. Standing is also proper under the Declaratory Judgment Act because its rights, status or other legal relations are affected by the municipal ordinance. The court then considers several subissues related to whether the ordinance is valid as a matter of law. Super Wash contends that the fence requirement is invalid contract zoning, that is, where the city binds itself to zone land in return for the landowner’s promise to use or not use property in a certain way. Contract zoning is different from conditional zoning, the court points out, which occurs when a city unilaterally requires a landowner to accept certain restrictions without a prior commitment to rezone the land as requested. Conditional zoning is valid if not arbitrary or capricious, and if it reasonably relates to the public welfare. The ordinance in this case is an example of conditional zoning. Super Wash’s promise to build a screening fence did not bind the city; in fact, it was a promise necessitated by the existing requirements of the ordinance. The court finds that the Zoning Enabling Act, passed by the legislature, validated any defects in the ordinance. The statute is designed to cure procedural defects, which is what Super Wash claims is wrong with the statute. Super Wash does not allege constitutional defects, which the act would not have validated. The court does, however, find the reversion clause of the ordinance (reverting to MFM zoning conditions upon failure of the conditions) is void. “The Ordinance in this case amended the original multifamily medium density zoning classification to thoroughfare commercial zoning classification. A zoning regulation should be amended only when public interest requires the amendment, that is, only when the amendment has a substantial relationship to the health, safety, or general welfare of the community. . . . The automatic reversion clause was unreasonable and arbitrary at the time the ordinance was enacted because the reversion is unlimited as to time and completely disregards the future needs of the public. . . . Furthermore, the reversion is invalid because it surrenders future legislative zoning power.” The court finds the clause can be severed from the rest of the ordinance. The court next considers the issue of equitable estoppel. The court agrees with Super Wash that a material fact issue exists over whether the actions of the building official were authorized. Also, Super Wash presented evidence that secured a building permit and, acting in reliance on the permit, began building. The car wash was 45 percent complete when it received word of the second set of revisions, the court points adds. OPINION: Dauphinot, J.; Livingston, Dauphinot and Holman, JJ.

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