For example, if the six-acre zoning covers an area that is already largely developed with smaller lots, it may be deemed arbitrary and capricious even under current, permissive judicial standards. Or because of its location and soil characteristics, your land has no other economically viable uses, the rezoning may have destroyed its entire economic value. Property acquired utilizing state funds under the Garden State Open Space Preservation Trust that has been downzoned since November 1998 must be valued as if it could still be developed under the November 1998 zoning. The credible threat of litigation on any of the above grounds may induce the municipality to negotiate to purchase your property on favorable terms. For the present, there are no tried and true formulas for challenging downzoning.
Every instance requires creative lawyering and imaginative strategies.
But in today s regulatory climate, all strategies must be considered, conventional and otherwise, if the effects of a downzoning are to be avoided or mitigated. During the late 80's, when the housing market was booming, town after town moved to downzone residential lands. After the market slipped, and through the mid-90's, there was a certain amount of stability in zoning. In more recent years, however, more and more towns have decided that they have quite enough housing, and they look to the zoning ordinances to stifle growth. This movement seems to be reaching epidemic proportions, especially given the perception that housing means school children means tax increases.