Taking the Mulligan: The Land Use Regulatory Hurdles in Golf Course Repurposing

18 | THE PRACTICAL REAL ESTATE LAWYER NOVEMBER 2020ARTHUR J. ANDERSON is a Shareholder with Winstead PC, in Dallas. He represents land-owners, developers, and builders with respect to major land use issues with local governmen-tal entities. He also litigates matters before both federal and state courts. His litigation experi-ence includes trial and appellate victories on vested rights, annexation, impact fee, subdivision approval, eminent domain, and other land use matters. He has experience with land valuation methodology and techniques through his eminent domain and inverse condemnation experi-ence. In addition to arguing before the Texas Supreme Court and various courts of appeals, he is often asked to prepare and file amicus briefs in these courts. He also processes development applications and presents cases before administrative and legislative bodies. The author appreciates the valuable contributions of Winstead’s land use associates Laura Hoffman, Brad Williams, and David Martin in the preparation of this article. An earlier version of this article appeared in the Fall 2019 ACREL Papers.There are numerous obstacles facing developers attempting to repurpose a golf course. It can be polit-ically controversial. Nearby residents often oppose the idea of replacing a low intensity, visually pleasing quasi-natural environment with a development that could bring in more people and more traffic. Golf courses are often viewed as open-space amenities, and homes abutting golf courses may be worth more than similar homes that don’t. In an economic down-turn, though, it can be expected that many public golf courses will close. When golf courses fail due to reduced play, or in regions suffering housing short-ages, some type of redevelopment will have to be authorized; or else homeowner associations and/or conservation groups will have to raise enough money to purchase the course. Otherwise, the course will likely be abandoned, maintenance will cease, and the result will be bad for everyone involved.Litigation is expensive. This can be an impediment for members of the public opposing golf course redevelopment. An alternative available to most homeowners is to convince their local governmen-tal entities regulating golf course development or redevelopment to deny the redevelopment or impose conditions acceptable to area landowners.Every jurisdiction has different statutes and ordi-nances regulating land use. While the politics in each jurisdiction is different, the legal process is fairly similar. Typically, the entitlement process for a new project will be as follows: comprehensive plan, zoning, platting, site improvements, building per-mit, and certificate of occupancy.1Even our neighbors to the north are addressing golf course redevelopment challenges. The Mead-owbrook Golf Course was developed in the 1930s and is located on the island of Montreal within the boundaries of both the City of Cote-St. Luc and the City of Montreal. In 2013, a developer submitted a request to build 1,500 housing units on the Borough of Lachine (Montreal) side of the island, but the bid was rejected by the Montreal City Council. Accord-ing to news articles, the council claimed to reject the bid because of high infrastructure costs. As stated in a newspaper article, “it was not interested in cover-ing the costs for a new road, bridge and water and sewage pipes into the development.”2In 2015, the land use and development plan for the island of Montreal was revised to re-designate a portion of the Meadowbrook Golf Course on the Lachine side from “residential” to “large green space or recreational.”3 The change was in response to petitioning from multiple conservationists, and the developer then filed a $44 million lawsuit against the City.TAKING THE MULLIGAN: THE LAND USE REGULATORY HURDLES IN GOLF COURSE REPURPOSING TAKING THE MULLIGAN: THE LAND USE REGULATORY HURDLES GOLF COURSE REPURPOSING | 19In 2017, a Superior Court judge rejected the devel-oper’s Lachine lawsuit on the grounds that the City’s actions were not the proximate cause for the failed development attempt. The trial court judge pointed to the developer’s need to finalize negoti-ations before development with the City, adjoining municipalities, Canadian Pacific, the suburban train authority, and Ministry of the Environment. Under the City’s new land development plan, the land-owner is still free to operate a golf course or other recreational facilities.4The other side of the course, located in the City of Cote St-Luc, was designated recreational in 2000. The developer filed a regulatory takings lawsuit against the City of Cote St-Luc, which has been pending for years.5 While the golf course could con-tinue to operate under the new category, residential development would not be allowed.6ZONINGWe conducted a survey of the zoning statutes in the 50 states. It does not appear that any state legislature has imposed a specific statutory zoning requirement for golf course development or redevelopment. Vir-tually all U.S. municipalities of consequence have enacted general zoning ordinances that comply in some manner with the Standard Zoning Enabling Act (SZEA). The Act was drafted by a committee of the U.S. Department of Commerce and first issued in 1922.7 The SZEA was initially adopted by all 50 states and is still in effect, in modified form, in most states.The SZEA authorizes a local governing body to reg-ulate the following:• Height, number of stories, and size of buildings and other structures;• Percentage of lot that may be occupied;• Size of yards, courts, and other open spaces;• Population density;• Location and use of buildings, other structures, and land for business, industrial, residential, or other purposes; and• In designed places and areas of historical, cul-tural, or architectural importance and signifi-cance, the governing body may regulate con-struction, reconstruction, alteration, and razing of buildings and structures.8COMPREHENSIVE PLANSUnder the SZEA, local governments should enact zoning ordinances “in accordance with a compre-hensive plan.”9 While not expressly defined, it is commonly referred to as an independent long-term plan regulating the future development of land.10 Comprehensive plans constitute “the general out-line of projected development,” while zoning is a regulatory tool designed to implement the plan.11The significance of zoning compliance with a local comprehensive plan for golf course development or redevelopment depends largely upon the state where the property is located. For example, Texas allows, but does not require, the governing body of a municipality to adopt a comprehensive plan.12 The contents of the comprehensive plan are left to the local entity, and a map showing future land uses must expressly state that a comprehensive plan does not establish zoning district boundaries.13Many states located on the East and West Coasts require that development ordinances be consist-ent with a comprehensive plan similar to the con-stitution.14 This compliance theory is reinforced by appellate opinions in those states.15For example, the State of Washington’s Growth Management Act (GMA) is a series of state stat-utes that requires fast-growing cities and counties to develop a comprehensive plan to manage their population growth.16 The GMA establishes the pri-macy of the comprehensive plan which must con-tain the following elements: land use, housing, cap-ital facilities plan, utilities, transportation, economic development, and parks and recreation.17 Optional plan elements include conservation, solar energy, recreation, and sub-area plans.18In California, the comprehensive plan is called a general plan and is governed by state statute.19 Each 20 | THE PRACTICAL REAL ESTATE LAWYER NOVEMBER 2020general plan must include the vision, goals, and objectives of the city or county in terms of planning and development within eight different “elements” defined by the state:1. Land use;2. Housing;3. Transportation;4. Conservation;5. Noise;6. Safety;7. Open space; and8. Environmental justice.20Cities have discretion to add elements but can be penalized if their general plan does not adequately address the eight state-mandated elements.21 Local government planning in Florida has been guided over the last 25 years by the 1985 Growth Manage-ment Act.22 It requires that every local government adopt a comprehensive plan that addresses future land use, housing, transportation, infrastructure, conservation, recreation and open space, inter-governmental coordination and capital improve-ments.23 Virginia has similar comprehensive plan requirements.24The greater the consistency between the com-prehensive plan’s land use designation and the proposed new use of the golf course property, the smoother the path to obtaining the necessary development approvals. Conversely, a large differ-ence between the proposed use and the compre-hensive plan usually makes it extremely difficult to navigate local regulatory hurdles.ZONING DISTRICTSThere are many different types of zoning, includ-ing Euclidean, performance, and incentive zoning. Understanding the base zone on a golf course prop-erty impacts the repurposing strategy. While every local land use regulatory entity has a different pro-tocol, the options for golf course property can typi-cally be broken down as follows:• No zoning;• Planned development;• Specific use permit;• Overlay district;• Straight golf course district; and• Straight district zoning.1. No zoning optionThere are few jurisdictions within the United States where there is no zoning authority. For example, Texas authorizes cities to regulate land use within their boundaries. For land located outside of a cor-porate limit, zoning does not apply because Texas counties do not have the required statutory author-ity. However, counties in many states have zoning authority on land outside the city limits.25 The City of Houston is the largest city in the United States...