How Do I Stop the Sale of Public Open Space to a Private Developer?

Dealing with a change in the use of nearby land.

Question

A few blocks from my house there is a grassy field used by locals as a park. This open space has been there for decades. The land is owned by the school district (not the city). From what I understand it is zoned for public use, but is not maintained as a park facility. The school district wants to sell the property to a developer to raise money for schools. The developer wants to rezone the property to allow for residential development. We will lose the open space if this happens. Is there anything we can do to stop the sale and preserve the open space?

Answer

Cases like these pose a number of unique challenges. Since the school district likely has the authority to sell its property to raise money, it may be that you cannot stop the sale of the open space. However, you may be able to put enough political pressure on any potential developer that it questions whether it will be able to develop the land as it wants (and most importantly, make money).

In cases where a property is zoned for public use, any sale to a private developer will usually be contingent on the developer being able to rezone the property from public use (or similar designation) to a zoning designation that allows for private development (for example, multi-family residential). As a result, your best bet to “stop the sale” may be to challenge any attempt by the school district or developer to rezone the property.

As an initial step, take note of any deadlines or other procedural requirements that may already apply. You do not want to be precluded from participating in public hearings or subsequent appeals because you failed to meet a deadline. To make sure you are aware of all requirements, review any notices you have received and also contact the local planning department. If unsure of what you need to do, promptly hire a land use attorney.

Once you are aware of deadlines and other procedural requirements, start organizing community support for preserving the open space. You might consider hosting a neighborhood meeting to find out who in your neighborhood is on your side. Contacting the press and writing letters to the editor may prove helpful. If you rally enough support, you may create political pressure that sways local decision makers to your side.

You will also want to review the local jurisdiction’s zoning ordinance (sometimes called a “development code”) to learn what the procedural and substantive requirements are for rezoning property. Procedural requirements will include things like application fees, notice requirements explaining what must be sent to nearby property owners after a land use application is filed, as well as whether the application will require a public hearing, and if so, who the application will be heard by (for example, a hearings officer or city council).

In some locations, the application is first considered by a hearings officer or local planning commission. After this initial hearing, the hearings officer or planning commission may make a "recommendation" to the city council. Most often, in cases involving rezones, the ultimate decision will be made by the city council (or if outside city limits, the county board.) The city council, however, has many issues to deal with at any one time, so the recommendation made by the initial body often carries a lot of weight. For this reason, it is important to be involved from the early stages of any application to rezone.

Substantive requirements, unlike procedural requirements, are criteria the applicant will need to comply with for the rezone application to be approved. As an example, an applicant for a zone change may need to show the:

  • the zone change is consistent with any applicable comprehensive plan for the area
  • there is a need for the zone change
  • the zone change will be consistent with the surrounding area, and
  • the zone change is consistent with the orderly development of public services.

For a more detailed discussion of these standards, see How Can I Stop the City from Rezoning My Neighborhood.

You should also become familiar with the applicable comprehensive plan (sometimes called a “general plan”). The comprehensive plan details the public policy for land use in your community, and covers a broad range of issues, from housing and transportation to open space and recreation.

You may discover that the comprehensive plan includes a policy of preserving open space. If so, it may still be possible to develop open space, but the developer may need to show, through the application process, that the proposed development maximizes the amount of open space that remains after construction.

Becoming familiar with the zoning ordinance and comprehensive plan will allow you and your group to more effectively counter any arguments made by the applicant for the zone change. You will also be in a better position to call out the developer or city if they skip a step in the process or gloss over a substantive standard.

One of the best ways to stop a sale to a private developer is to present a better alternative to the school district and city council. For example, can your neighborhood group raise enough money to buy the land and it put in trust for the public use? Or can your group work with the developer to find a way to preserve some of the open space while allowing development of the rest?

As you move forward, keep in mind that, even if you stop the sale of the land or keep the developer from rezoning the property, you are not guaranteed that the land will remain open space indefinitely. The open space can still be developed in a manner consistent with its current zoning. For instance, land zoned for “public use” or “public facilities” will often be open for all sorts of development; from a school to government offices, cell phone towers, or even a sewer.

To address current and future use of the open space, consider sitting down with all of the stakeholders (the neighbors, developer, school district, business community, and so forth) to come up with a long-term solution. Bringing the stakeholders together to put together a plan for how the property will be used may allow for a solution that works for all concerned parties, not just now, but well into the future. Many communities have nonprofit mediation organizations that can help facilitate such a meeting.

Cases like this present a number of challenges, from the actual sale (including any laws that may apply to the sale of publicly owned land), to the land use application to rezone the property. An attorney can be an important resource as you work through these complicated issues.

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