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"Takings bill" passes house


lsgchas

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Recently, the S.C. House of Representatives passed a bill that would require cities to compensate a landowner for any zoning restrictions placed on their property. Not surprisingly, many mayors are outraged. Essentially, anything could be built anywhere, and the only way to stop it would be to compensate the landowner for taking away the lost "value" of his property. South Carolina would join Oregon, which is in a state of chaos following the passage of a similar law. This law would be a disaster. There would be no way of knowing what can or can't be built in your neighborhood. You could wake up and find an adult bookstore going up next door, or a meatpacking plant, or a junkyard. After selling out to the billboard industry, our state may soon be selling out to real estate developers.

Here's one opinion against the bill, from Charleston mayor [url="http://www.charleston.net/stories/?newsID=76770

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We have certainly elected a bunch of morons.

I think that it is very important to address issues related to Kelo vs the City of New London ruling. Most of what is in that bill is acceptable- the main problem is the "just compensation" part. It would require that ANY negative effect to the property owner be compensated for. That means that cities would be effectively barred from changing zoning laws because it could harm the property values. If this passes it will be bad news for out cities. I'm starting to wonder why we even have land use regulations. If SC wants to manage growth/sprawl, it will have to strengthen its land use regulations and controls (cities) not weaken them.

But you can't oppose the bill, because you cant bee seen as being against increasing land values.

For a more reasonable opinion, check out the Municipal Association of South Carolina's view: http://www.masc.sc/legislative/Eminentdoma...lkingpoints.htm

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I personally don't think this is a bad idea. If your property is devalued due to a down zoning, you should be justly compensated. This would not affect the ability to zone and the sky is certainly not falling. What it would do is prevent "emergency" rezoning of properties when someone sees that land is being bought and thus resulting in a devalued property.

I don't see how this measure, in itself, will "cause" any more (or less) sprawl.

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Infinite1, thanks for that info. I just about had a knee-jerk reaction to this legislation before reading your post. I think we're so accustomed to our "brilliant" SC legislature voting for stupid bills that we can overlook what the bill contains, which is what appears has happened. Property rights are extremely important, especially in cities, and this bill looks as if it addresses the problem properly. I don't think this will prevent any SC city from zoning properties at all...the sky is definitely not falling.

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I think this is a good bill for the following reasons:

- It compensates the owners of the property for changes in zoning the devalue their property. Before, cities would just make property owners "eat" the costs. This will help city planners to realize there are real costs to their actions and their not the benign, omniscient planners they think they are.

- So what if you wake up next to a junkyard? If it bothers you, you can always sue the junkyard for nuisance and make them pay you for the loss of value in your home. I'm not sure if this law will fix it completely, but before if you house was zoned residential and the lot next to you was zoned for industrail (ie. the junkyard), you wouldn't be able to recoop the diminished value of your house from the junkyard. Plus, I for one wouldn't mind living next to a junkyard if it meant significantly lower housing prices.

- I think it will also encourage more diverse mixed used type devlopments. Cities will be less reluctant to zone an entire area for "residential," because it would require them to compensate the owners for lost "commericial" value (which is always more).

I haven't figured out whether this will help the sprawl situation or hurt it. What do y'all think and what is your reasoning behind it?

Finally, IMHO, cities should just stop zoning altogether. I think everybody would be pleasantly suprised by the amount of "order" and sheer design that can emerge from the free market.

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I haven't figured out whether this will help the sprawl situation or hurt it. What do y'all think and what is your reasoning behind it?

Finally, IMHO, cities should just stop zoning altogether. I think everybody would be pleasantly suprised by the amount of "order" and sheer design that can emerge from the free market.

I think if you proposed eliminating all government interference in the way cities are planned and grow, you might intrigue a lot of smart-growth people. Not to say it would be a good idea, but it would be better than this bill. So... eliminating government interference would mean scrapping Euclidean zoning, stopping all subsidising of the automobile as a primary mode of travel (which in turn subsidises suburban sprawl), scrapping President Clinton's sales tax break on home sales under $500,000, and eliminating all tax breaks for homeowners, to name just a few things. The truth is there are many fingers on the scale when it comes to development, and most of them help developers. But you won't hear developers and builders wanting to eliminate any of those policies. This bill would simply eliminate the main tool that local governments have against unwanted development.

As far as I can tell, there isn't even a grace period associated with this bill... No time for local governments to fine tune their zonings before the law takes effect. This would be a nightmare. You have to understand that as recently as a few years ago (and even now in some cases), many governments would routinely zone everything to maximum density. You could own property 40 miles from town and they'd zone it 4 houses per acre. The thinking was that no one would build a lot of houses out there, and if they did, more luck to them! Of course, that was before development began to explode. You'll notice that developers don't want to eliminate the power of government to change any zoning if it benefits the developer. They only want to eliminate rezonings that curb their ability to pack out their land (recently purchased, for the most part) with development, even if it's obviously to the detriment of the greater good.

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I think if you proposed eliminating all government interference in the way cities are planned and grow, you might intrigue a lot of smart-growth people. Not to say it would be a good idea, but it would be better than this bill. So... eliminating government interference would mean scrapping Euclidean zoning, stopping all subsidising of the automobile as a primary mode of travel (which in turn subsidises suburban sprawl), scrapping President Clinton's sales tax break on home sales under $500,000, and eliminating all tax breaks for homeowners, to name just a few things. The truth is there are many fingers on the scale when it comes to development, and most of them help developers. But you won't hear developers and builders wanting to eliminate any of those policies. This bill would simply eliminate the main tool that local governments have against unwanted development.

As far as I can tell, there isn't even a grace period associated with this bill... No time for local governments to fine tune their zonings before the law takes effect. This would be a nightmare. You have to understand that as recently as a few years ago (and even now in some cases), many governments would routinely zone everything to maximum density. You could own property 40 miles from town and they'd zone it 4 houses per acre. The thinking was that no one would build a lot of houses out there, and if they did, more luck to them! Of course, that was before development began to explode. You'll notice that developers don't want to eliminate the power of government to change any zoning if it benefits the developer. They only want to eliminate rezonings that curb their ability to pack out their land (recently purchased, for the most part) with development, even if it's obviously to the detriment of the greater good.

That wouldn't exaclty be the case. Most far-flung undeveloped parcels are zoned for farming, low density residential or consevation (at least in the Charleston area). So any development of these areas already requires rezoning and/or a Planned development program. None of this is affected by this law. Those affected are landowners who hold land in a a dveloping area. Once development begins to densify, someone decides enough is enough and moves to rezone remaining parcels to a lower density (usually as soon as they hear that XYZ Devloper is looking at or has bought the property). In cases such as these, the land value is clearly diminished (intentionally) by the actions of the government. There should be just compensation.

Another issue where I can see this having an impact is in lower Richland County where the T&C Land Use plan calls for alot of that land to be conservation space.

As far as the grace period, you can't have your cake and eat it too. If you intentionally allow the max zoning on all parcels, that improves the property value for taxing purposes and helps the entity. When it is no longer convenient, they want to down zone the property and accept no responsibility.

I think a law like this would force municipalities to take a more serious and organized approach at how they zone.

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Wow, both sides of the debate have presented excellent arguments to this issue. Now, I'm undecided about how I feel about this bill. I know I can have a tendency to be pro-developer, but I do agree that city governments need control in what should be built in different locations. It allows for proper planning of the community.

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Looks like this bill is dead for now. yay!

Senate Puts the Brakes on Regulatory Takings Legislation

H.4503 by Rep. Edge (R-Horry)

Senator Gregory's Judiciary Subcommittee refused to address Regulatory Takings and instead decided to complete its work on S.1030, a statutory bill that only clarifies South Carolina's Eminent Domain law. The Subcommittee approved the "clean" Eminent Domain bill this week with several technical amendments, so the Judiciary Committee is expected to consider the legislation next week.

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I think that it is very important to address issues related to Kelo vs the City of New London ruling.

The thing is, they already have. There is a separate eminent domain law. This takings legislation has actually been kicked around for several years. The Kelo case has somehow gotten associated with this bill, even though the legislation predates it and the connection is minimal.

If your property is devalued due to a down zoning, you should be justly compensated. This would not affect the ability to zone and the sky is certainly not falling. What it would do is prevent "emergency" rezoning of properties when someone sees that land is being bought and thus resulting in a devalued property.

I don't see how this measure, in itself, will "cause" any more (or less) sprawl.

Unzoned property. Right now, property that is unzoned is effectively free to do whatever a person wants with it. Anytime unzoned property effectively becomes zoned, it is "being downzoned." Zoning and other land restrictions are really the only defense against sprawl.

- It compensates the owners of the property for changes in zoning the devalue their property. Before, cities would just make property owners "eat" the costs. This will help city planners to realize there are real costs to their actions and their not the benign, omniscient planners they think they are.

Contrary to popular belief, planners possess no power, and they shouldn't. They simply make plans and recommendations. It is up to elected officials to follow through. Do not confuse a lack of commitment to planning from the elected officials with "omniscient planners" doing shoddy work.

- So what if you wake up next to a junkyard? If it bothers you, you can always sue the junkyard for nuisance and make them pay you for the loss of value in your home. I'm not sure if this law will fix it completely, but before if you house was zoned residential and the lot next to you was zoned for industrail (ie. the junkyard), you wouldn't be able to recoop the diminished value of your house from the junkyard. Plus, I for one wouldn't mind living next to a junkyard if it meant significantly lower housing prices.

You can sue, but you wouldn't win. You wouldn't mind living next to a junkyard... specifically so you can have lower housing prices? Sure, if you are going to buy it, but what if you were the owner who lost the value of the home? If anything, by promoting mixed uses and denser development, good planning is vital to the development of housing that is in the lower price ranges.

- I think it will also encourage more diverse mixed used type devlopments. Cities will be less reluctant to zone an entire area for "residential," because it would require them to compensate the owners for lost "commericial" value (which is always more).

Actually, it won't. Mixed use developments will only appear in the denser urban areas, as that is generally the only place where residential land can make commercial developments more profitable.

I haven't figured out whether this will help the sprawl situation or hurt it. What do y'all think and what is your reasoning behind it?

Finally, IMHO, cities should just stop zoning altogether. I think everybody would be pleasantly suprised by the amount of "order" and sheer design that can emerge from the free market.

Sprawl is a product of the free market. We are an automobile-centered society. Sprawl is a result. In most cases, the invisible hand of the free market is the best avenue to pursue, when it comes to land, it isn't. Because land is of finite supply and it is requirement for living, there are limits the amount of development than an area can accomodate without compromising the safety of the public. Public infrastructure needs to be planned. A failure to plan results in a variety of negative consequences, ranging from, at its most benign, Woodruff Road congestion, and its worst, manmade disasters costing human lives.

I think if you proposed eliminating all government interference in the way cities are planned and grow, you might intrigue a lot of smart-growth people. Not to say it would be a good idea, but it would be better than this bill.

There are definitely ways to improve zoning, but this bill is not it. "Smart-growth people," while they have objections to Euclidean zoning, have even stronger objections to this bill. New zoning practices that are more "smart-growth" friendly such as density-based zoning would face more of a challenge than Euclidean zoning would.

...scrapping President Clinton's sales tax break on home sales under $500,000, and eliminating all tax breaks for homeowners, to name just a few things.

That's an intrigueing idea, but it is complicated. Tax incentives for homeowners, while being one of the biggest contributors to sprawl, also has a huge stabling effect on the US economy, as a whole. I guess the question is, what's more important... less sprawl or a less stable economy?

As far as I can tell, there isn't even a grace period associated with this bill... No time for local governments to fine tune their zonings before the law takes effect.

Most far-flung undeveloped parcels are zoned for farming, low density residential or consevation (at least in the Charleston area).

Most undeveloped parcels in this state are not zoned, meaning the owners can do whatever they want with the property. Any zoning ordinance inacted, by its defintion, can be considered as limiting what a person can do with their property, and therefore considered a taking.

So any development of these areas already requires rezoning and/or a Planned development program. None of this is affected by this law. Those affected are landowners who hold land in a a dveloping area.

There is no language in the law that draws a distinction between undeveloped land and land that is in a developing area.

Once development begins to densify, someone decides enough is enough and moves to rezone remaining parcels to a lower density (usually as soon as they hear that XYZ Devloper is looking at or has bought the property). In cases such as these, the land value is clearly diminished (intentionally) by the actions of the government. There should be just compensation.

That practice is already illegal and court cases are brought by developers as a result. The planning process is elaborate and must be followed in order to legally enforce land regulations. This law simply allows developers to use a lawsuit, or the threat of one, to bypass land regulations.

As far as the grace period, you can't have your cake and eat it too. If you intentionally allow the max zoning on all parcels, that improves the property value for taxing purposes and helps the entity. When it is no longer convenient, they want to down zone the property and accept no responsibility.

It's not a matter of convenience... it's a matter of necessity. What happens in a situation where a lack of planning has resulted in inadequate infrastructure for new development? Who fits the bill? Do you tell people they can't develop as much as they want or do you simply let them develop and exacerbate the existing problems?

I think a law like this would force municipalities to take a more serious and organized approach at how they zone.

The problem is that local governments are not doing enough to plan better. This law will scare many local governments into abandoning any kind of land regulations. The big ones will still do it, but they will need to drastically increase their legal budgets

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^ too many quotes to address them all but...as far as I know, by state law every county is required to have a land use plan and associated zoning. I know of no "unzoned" properties anywhere. Since land plannig is required by state law, I don't see any municipalities being "scared" awya from it, More likely they would take a hard look at how the really want their area to grow, zone those parcels accordingly.

Furthermore, I know of no law stating when or why a property can be rezoned. Proeperties are frequently rezoned when news of impending sales of large swaths of land. This is typically accomplished via the application of some sort of "overlay district" but not always.

Sprawl is a product of a lot of things, but I would put lack of zoning way down that list. Typically large parcels planned for development are "upzoned" to accomodate that developement. This means that a rezoning must be requested. If these rezonings are are not allowed, these parcels would not be developed. But time after time rezonings are approved, circumventing the planned zoning and the intent of the land use plan. Why?? Money. Instead of denying rezonings municipalities bargain for what they can get out of the developer. Add a turn lane, a traffic light, some sidewalks and donate 50 acres for schools and you got a deal.

This law would have dealt with the realatively minor problem of down zoning. Typically, this happens in an area that is already built up. I have seen it specifically in Mt Pleasant and James Island. Although I don't see it happen often, I believe anytime someone's property is devalued "for the greater good" then that person should be compensated for the lost value. In that vein, it is very similar to the eminent domain legislation.

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^ too many quotes to address them all but...as far as I know, by state law every county is required to have a land use plan and associated zoning. I know of no "unzoned" properties anywhere. Since land plannig is required by state law, I don't see any municipalities being "scared" awya from it, More likely they would take a hard look at how the really want their area to grow, zone those parcels accordingly.

Actually, state law mandates that all municipalities have a land use plan and zoning. Counties are not required to, though most of them do have land use planning. Counties by and large do not have zoning. Only the most urban ones do. Richland and Charleston have 100% zoning. There are several with partial zoning. most have none. Those that need them the most do not- Greenville, Spartanburg, Anderson). Ok, Anderson has partial zoning, but it is largely ineffective. Rural counties may not create one themselves, but the often ask their respective Counil of Government will create one for them.

Zoning is not the cure-all for sprawl by anymeans. Its not necessarily the cause of it either, but it is a factor. Zoning forces us to compartmentalize our lives. We live here, work there, shop there- so we must drive to each location. The 'mixed-use' zoning is a type of fix for that because it allows us to live, work, and shop in the same place. Its a radical concept in this state. Our larger cities are catching on... slowly. It needs to apply to a larger area that downtown. But anythign is better than nothing.

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^But that hasn't exactly worked for Houston, has it? That city has no zoning laws, but plenty of sprawl to go around. I just find it interesting, because in such a case, you could theoretically have a 50-story tower built next door to your 2-bedroom ranch house (not that it's likely).

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^But that hasn't exactly worked for Houston, has it? That city has no zoning laws, but plenty of sprawl to go around. I just find it interesting, because in such a case, you could theoretically have a 50-story tower built next door to your 2-bedroom ranch house (not that it's likely).

I have heard that situation does exist in Houston (maybe not a 50 storey building, but an office tower none the less. Houston is still an American city. the rest of Texas and America use zoning, so its bound to be influnced by the same forces. Its not just a localized problem :)

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^ too many quotes to address them all but...as far as I know, by state law every county is required to have a land use plan and associated zoning. I know of no "unzoned" properties anywhere. Since land plannig is required by state law, I don't see any municipalities being "scared" awya from it, More likely they would take a hard look at how the really want their area to grow, zone those parcels accordingly.

Most of the counties in SC do not have zoning. Most of Greenville County is not zoned. For smaller cities, legal battles can paralyze a city's budget. Having the spectre of having to pay through the nose for every land use regulation will not promote better land use thinking.

Furthermore, I know of no law stating when or why a property can be rezoned. Proeperties are frequently rezoned when news of impending sales of large swaths of land. This is typically accomplished via the application of some sort of "overlay district" but not always.

There are constitutional requirements requiring "due process" and "equal protection". State zoning enabling legislation (the law that allows zoning in the state) specifies notification and public hearing requirements. Failure to meet this is a slam-dunk way for a lawyer to eliminate any recent zoning changes.

Sprawl is a product of a lot of things, but I would put lack of zoning way down that list. Typically large parcels planned for development are "upzoned" to accomodate that developement. This means that a rezoning must be requested. If these rezonings are are not allowed, these parcels would not be developed. But time after time rezonings are approved, circumventing the planned zoning and the intent of the land use plan. Why?? Money. Instead of denying rezonings municipalities bargain for what they can get out of the developer. Add a turn lane, a traffic light, some sidewalks and donate 50 acres for schools and you got a deal.

One of the drawbacks of the Comprehensive Planning Act of 1995 (the law that required planning in order to enforce existing zoning) made many local governments to "go through the motions" when creating a land use plan. Many local officials do not have the intent or intestinal fortitude to tell a developer "no," except when there is visible public support for them doing so. Ultimately, I think it comes down to educating public officials on why a land use plan is being done and what the ramifications of not following it are. There are legitimate reasons for not following a land use plan, but lack of visibile public support against a development is not.

This law would have dealt with the realatively minor problem of down zoning. Typically, this happens in an area that is already built up. I have seen it specifically in Mt Pleasant and James Island. Although I don't see it happen often, I believe anytime someone's property is devalued "for the greater good" then that person should be compensated for the lost value. In that vein, it is very similar to the eminent domain legislation.

Every land use regulation technically devalues property for the greater good. If property owners can receive compensation for a devaluation of their property via regulation, then the reverse should be true... when a land use regulation increases the value of land, then governments should be able to recoup their portion via income taxes. The logic for both is the same.

While the intent may be noble, the application is not.

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^ I'm looking at Greenville County zoning online right now and there are no "unzoned" parcels evident anywhere within the county. (http://www.gcgis.org/webmappub/) From looking at the SOUTH CAROLINA LOCAL GOVERNMENT COMPREHENSIVE PLANNING

ENABLING ACT OF 1994 (cut and paste), it lists both municipalites and counties as local and thereby beholden to this reg. I'm no lawyer, but I seem to rember Richland County rushing to get the Town and Country Plan done before 2000 to comply with this regulation. It also allows for "any combination" of municipal, county and regional,joint planning, so maybe some smaller, more rural counties use their COGs to accomplish the task.

I never implied that due process was not followed in "down zoning" of properties. With a mimimal notice and 3 readings at counil meetings (a process that takes about 3-4months usually) a zoning can be changed or an overlay district can be created. As long as this process is conclude prior to the initila submittal for a plan, then it will impact the plan.

The counter argument for levying income tax when government zoning increases property tax is equally valid. Though this is already accomplished via the reassessment and property tax increases. This happens frequently and tends to be a force in the gentrification of certain areas.

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^ I'm looking at Greenville County zoning online right now and there are no "unzoned" parcels evident anywhere within the county. (http://www.gcgis.org/webmappub/) From looking at the SOUTH CAROLINA LOCAL GOVERNMENT COMPREHENSIVE PLANNING

ENABLING ACT OF 1994 (cut and paste), it lists both municipalites and counties as local and thereby beholden to this reg. I'm no lawyer, but I seem to rember Richland County rushing to get the Town and Country Plan done before 2000 to comply with this regulation. It also allows for "any combination" of municipal, county and regional,joint planning, so maybe some smaller, more rural counties use their COGs to accomplish the task.

You are looking at the land use plan. What land is planned for and what it is zoned are two different things. Zoning says exactly what a person can do with their land. The plan helps guide zoning changes. If you look at the same site you posted, and turn on the zoning layer, you will find that most of the county is unzoned. Any attempt to provide zoning in these areas would require compensation if the law passes.

And you are correct. Cities and counties are required to abide by the Comprehensive Act, but it is only a requirement as the basis for zoning. If you didn't complete a plan, then your zoning would no longer be legally valid. If you don't have zoning, than there's no need for a plan. Many local governments are drafting plans in preparation for adopting zoning. After 1998, communities were no longer permitted to zone without a plan.

I never implied that due process was not followed in "down zoning" of properties. With a mimimal notice and 3 readings at counil meetings (a process that takes about 3-4months usually) a zoning can be changed or an overlay district can be created. As long as this process is conclude prior to the initila submittal for a plan, then it will impact the plan.

I'm missing the hang-up here. Rezonings only affect things that are submitted after it goes into effect. I would think that a developer would be able to get their plans for a property submitted prior to adoption of a rezoning.

The counter argument for levying income tax when government zoning increases property tax is equally valid. Though this is already accomplished via the reassessment and property tax increases. This happens frequently and tends to be a force in the gentrification of certain areas.

As if reassessment period wasn't enough of a pain. Just imagine if people had to pay 25% of their property's increase in value in income taxes?

Determining the financial impact of an ordinance is unscientific, at best. Greenville County recently considered an ordinance that would impact how late race tracks could be open. If I live in an unzoned area of the county, I get money from the county, because my property is no longer as valuable to serve as a race track, therefore my property value's been diminished. This sounds ludicrous, but the language in the ordinance is very broad.

The fact that it specifically references the phrase "comprehensive plan" is kind of worrisome. Simply the passing of a plan, which is not law, nor is it intended to be, would require compensation. Suppose a sewer district is running out of sewer capacity (like they have in parts of both Simpsonville and Travelers Rest.) As a response, the plan (not the zoning, even though that would probably be warranted) is changed to recommend less intense land uses so as to not tax the sewer capacity any further. Does that mean that each property owner should be compensated based upon what they might do with their land at some point in the future? Where does this money come from?

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You are looking at the land use plan. What land is planned for and what it is zoned are two different things. Zoning says exactly what a person can do with their land. The plan helps guide zoning changes. If you look at the same site you posted, and turn on the zoning layer, you will find that most of the county is unzoned. Any attempt to provide zoning in these areas would require compensation if the law passes.
well is says "Zonng Map" so you can take that up with Greenville County,

I'm missing the hang-up here. Rezonings only affect things that are submitted after it goes into effect. I would think that a developer would be able to get their plans for a property submitted prior to adoption of a rezoning.

It was implied that a property couldn't be down-zoned upon news of an impending land transfer. I was merely stating that within 3 months zoning could be changed. and someone who bought property under a certain more intense zoning, could find it zoned mroe conservatively by the time plans are prepared. It takes several months to prepare plans for submittal to planning cmmission, especiially so for large parcels.

The fact that it specifically references the phrase "comprehensive plan" is kind of worrisome. Simply the passing of a plan, which is not law, nor is it intended to be, would require compensation. Suppose a sewer district is running out of sewer capacity (like they have in parts of both Simpsonville and Travelers Rest.) As a response, the plan (not the zoning, even though that would probably be warranted) is changed to recommend less intense land uses so as to not tax the sewer capacity any further. Does that mean that each property owner should be compensated based upon what they might do with their land at some point in the future? Where does this money come from?

I guess we just see things differently. In your example above, I say improve the infrastructure and allow the development to continue. To do otherwise would not stop development, but just spread it our over larger, less dense areas. That in itself promotes more sprawl.

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In your example above, I say improve the infrastructure and allow the development to continue. To do otherwise would not stop development, but just spread it our over larger, less dense areas. That in itself promotes more sprawl.

What happens when there is not enough funding to improve the infrastructure? Who pays the bill?

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What happens when there is not enough funding to improve the infrastructure? Who pays the bill?

Let me guess. We put up a sign that says. "Closed. No more people here. Try back in 5 years."

Seriously, at that point you should demand accountability from yuor elected officials. Why isn't there a plan for this growth? I bet you if Mercedes wanted to locate there, they would find the money for the infrastructure then. (And whre would those folks find homes?). We all know that the southeast is growing. We argue back and forth on this site about who is growing faster, so we know people are coming. Yet our elected officials still act shocked when growth hits them. But lets not hold them accountable. Lets blame the greedy developers who respond to this growth by adding products to accomodate the growth.

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