Zoning Permits: Curative Amendment
Similar to a substantive validity challenge, a curative amendment is a challenge to an existing zoning ordinance. The basis for a curative amendment challenge is that the existing code is invalid and should be changed because it does not meet the legal standards that all code must meet. For example, someone may bring a curative amendment challenge if their code does not provide for a certain use anywhere in the code or unfairly restricts a use.
If a landowner, for example, wants to expand an existing farm to be a large scale factory farm but cannot because their zoning code does not let them, then that landowner has an interest in a land use that is restricted or prohibited by their zoning and may want to submit a curative amendment. Unlike a substantive validity claim, a curative amendment offers alternative language for the code or a “cure” for the existing code.
What it is
A curative amendment is very similar and related to a substantive validity challenge. A curative amendment can be brought by either an impacted landowner or the municipality itself as a means of updating the existing code. Either way, a curative amendment is proposed when either a landowner or the municipality believes that the existing ordinance unfairly restricts development, such as requiring aggressive development standards or by restricting uses not considered while drafting the original ordinance. The resulting “cure” for the unfair impact is to amend the ordinance.
The local governing body (such as city council or board of commissioners) makes the ultimate decision.
Timeline and opportunities for public engagement
For a curative amendment proposed by a landowner they must first file a written challenge along with proposed language that would curatively amend the language with the local governing body.
There must be a public hearing on the landowners request within 60 days of the landowner’s filing. §609.1(a).
Before the public hearing, the amendment must be reviewed by the planning commission. The planning commission will decide whether to make a recommendation in favor of, or against, approval of the curative amendment to the governing body. This review by the planning commission must take place within 30 days of the public hearing.
At the end of this process, if the municipality’s governing body has determined the challenge has merit, it can accept the curative amendment. This may be as the amendment is presented by the challenger, a revised version of the amendment, or the municipality may internally develop an alternative amendment that addresses the challenged aspects of the code.
At the public hearing generally anyone is invited to make public comment about the proposed amendment. Sometimes the municipality limits comments to only those who live or conduct business in the municipality. It is generally up to the discretion of the municipality whether they will accept public comment from those who do not live within its boundaries.