Governmental Land Use Controls

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Zoning

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government (state, regional or local) regulation of land

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Servitudes

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Private contracts respecting land use

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Euclidian Zoning

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The key feature of these laws is regulation of the location and separation of uses of land on private property.

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Exclusive zoning

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Forbids uses not delineated in the particular zone.

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cumulative zoning

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each more intensive use district permitted all or most of the uses permitted in the less intensive uses “above” it on the zoning pyramid

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underlying assumptions of Euclidean zoning

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(a) separation of uses is desirable
(b) the single-family residence is the most important use
(c) low-density development is desirable
(d) residents will travel by private automobiles
(e) development will proceed on a lot-by-lot basis and
(f) once zoning is established, there will be little or no need to change it in the future

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Rational basis test

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Analysis consists of two elements:
that the law is a means of achieving a legitimate or permissible government objective; and
that the law bears a rational relation to that objective.

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Strict scrutiny test:

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Analysis is applied when the regulation impacts a fundamental right such as the 1st Amend. right involved in regulating advertising, adult bookstores, etc.

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THE TESTS APPLIED IN EUCLID

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Two important principles:
The ordinance now under review … must find justification in some aspect of the police power, asserted for the public welfare.
If the validity of the legislative classification for zoning purposes be fairly debatable, the legislative judgment must be allowed to control. (p. 846).

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police power

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allows the government to intervene in matters that affect the public health, welfare and safety.

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Spot zoning

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term of art; per se illegal; single parcel taken out for use that is inconsistent with zoning

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Conditional zoning

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allow inconsistent use for certain circumstances; legal means of allowing flexibility

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K zoning

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zoning official enters into a K agreement with homeowner binding itself from changing zoning for a certain period of time

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Change or mistake rule

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Some states permit rezoning only where either the original zoning is found to have a mistake or the change is justified by changed circumstances subsequent to the original zoning.

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Conditional Use Zoning v. K Zoning

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Many jurisdictions have found conditional use zoning to be acceptable but not K zoning

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Standard of Judicial Review for Amendments

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Legal determination (great deference) v. Quasi-judicial (easy to overturn)

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Use variance

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Variances from limitations on use

Many jurisdictions will not allow any use variance.
Use variances require “unnecessary hardship” whereas area variances require “practical difficulties.”

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Area variance

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Variances from dimensional limitations such as set back requirements

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Euclid v. Ambler Realty

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Supreme Court of the United States may apply the
rational basis test
the intermediate test or
strict scrutiny test
to determine the constitutionality of a challenged law or rule where the suit involves a facial challenge

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Matthew and Miserocchi involve challenges to administrative rulings

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Courts will overturn administrative rulings only where the decision is arbitrary or capricious

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FACTORS (THEMES) TO CONSIDER IN GRANTING A VARIANCE

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1) relief is necessary because of the unique character of the property rather than for personal considerations
2) unnecessary hardship will result by applying the strict letter of the ordinance
3) imposition of the hardship is not necessary for preservation of the plan
4) granting the variance will result in substantial justice to all

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Facial Challenge

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a challenge to a statute in which the plaintiff alleges that the legislation is always unconstitutional, and therefore void.

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Non conforming use

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For a non conforming use to be entitled to continue it must have been lawful & in existence at the time the zoning ordinance was passed

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Amortization schedule

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Many zoning ord. place a time limit on a non conforming use

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Abandonment of a non conforming use

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Courts view abandonment as to whether there was an intent to abandon

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Intensification of or changes of the use

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Municipalities forbid this

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Vested right

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In some jurisdictions the landowner's estoppel claim may be identified as a claim that she has acquired a vested right to proceed with the planned use.

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Estoppel

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To estop a municipality from applying its zoning ordinance to block the approval use (or to successfully claim a vested right to proceed with development) the landowner must demonstrate:
1) that she incurred substantial expenses in good faith
2) reasonably relied upon appropriate gov't action
3) and that it would be inequitable and unjust for municipal rezoning to take away landowner's ability to proceed

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Minimal scrutiny approach

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If no fundamental right is involved, a statute or governmental rule will be upheld as long as it is a reasonable effort to promote the ultimate objective of the law.

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Strict scrutiny approach

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If a fundamental right is involved, a statute or governmental rule will be upheld only if the government has a compelling interest in promoting the ultimate objective of the law.

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Eminent domain

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the inherent power of a sovereign to take private property for a public use.

Fifth Amendment is a limit on this power

Actual acquisition

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Substantive issue: What is “public use”?

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Midkiff: public use = public purpose
Berman: public use = police power (health, safety, morality, law & order, and the public welfare)
Kelo: public use includes economic development

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Kelo – emphasizes this right

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States are free to enact laws that are more protective of property rights (more restrictive of the government’s eminent domain power).

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State courts, in interpreting the “public use” clause in their own constitutions, may:

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give a narrower definition of public use; and
less deference to legislative determinations

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Inverse condemnation

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Regulatory takings (does not physically take property but makes it unuseable to owner for their required purpose).

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Fiscal Illusion

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We make the government pay so the government can feel the pain.

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Rationale for Compensation

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Require government to internalize the cost of taking (so they will take when values are low rather than high).

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Process Failure Theory

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Overcome failures of political process.

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Reliance Theory

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No one will buy if at anytime the real estate could be taken.

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Equal Treatment Theory

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equal treatment in rationale for compensation

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Eminent domain may be used to transfer property from one private property owner to another private property owner and have the transfer meet the public use requirement only where:

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1) the taking is necessary to facilitate something perceived to be a public necessity associated with the instruments of commerce, e.g., railroads, highways, etc. -- or --
2) after the taking, the public continues to retain a measure of control over the property or
3) the land in question presents a public concern – a blighted area.

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When the government exercises the power of eminent domain to promote a public purpose, courts generally have defined just compensation as fair market value which excludes:

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business goodwill, sentimental value and relocation costs

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Two basic types of takings:

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physical invasions and non-physical regulations

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Although regulatory takings jurisprudence has reflected “essentially ad hoc, factual inquiries,” three factors that have been particularly significant are:

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1) the economic impact of the regulation
2) the extent to which the regulation has interfered with distinct, investment-backed expectations and
3) the character of the government action.

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transferable development rights (TDRs)

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a landowner can capture some of the value associated with unused development potential on her property by transferring the development potential to neighboring parcels

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The Penn Central balancing test remains viable but there are a few situations governed NOT by Penn Central but by per se tests.

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These regulations are referred to as categorical takings because they will be found to be a taking without regard to the importance of the public interest served by the regulation or the extent of diminution in value of the property.

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LORETTO V. TELEPROMPTER
The first categorical rule – (with exceptions)

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A permanent physical occupation of property by, or sanctioned by, the government gives rise to an obligation to compensate the landowner – however inconsequential the invasion and however important the public purpose sought to be served.

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JUSTIFICATIONS FOR THE LORETTO RULE

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A) historical precedence
B) physical occupation is the most serious form of invasion
C) per se rule avoids difficult line-drawing problems inherent in a balancing test

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PHYSICAL INVASIONS

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The “bright” line rule:
Any permanent physical occupation of land is a taking, regardless of whether the action achieves an important public benefit or has only minimal economic impact on the owner.
It makes no difference whether government occupies the property itself or merely authorizes a third party to do so.

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EXCEPTIONS TO THE BRIGHT LINE RULE OF PHYSICAL INVASIONS

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Not all physical invasions are takings.
A regulation that requires all landlords to supply and install mailboxes at his or her own expense is NOT a taking, even though this is a permanent physical occupation.

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A taking will be found where the government:

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A) authorizes a permanent physical occupation of the land (Loretto)
B) adopts a regulation that causes the loss of all economically beneficial or productive use of land (unless justified by background principles of property or nuisance law) (Lucas)

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LUCAS V. SOUTH CAROLINA
The second categorical rule – (with exceptions

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A total deprivation of beneficial use, is from the landowner’s point of view, the equivalent of a physical appropriation and thus will constitute a categorical taking without case specific inquiry into the public interest advanced.

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Village of Euclid v. Ambler Realty Co (1926)

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a zoning ordinance that in effect reduces the value of a parcel of land by 75% is not a taking.

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Keystone Coal v.DeBenedictis (1987)

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a state statute that requires a coal company to leave a certain amount of coal in place in order to prevent subsidence is not a taking.

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Temporary Takings

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Government may owe compensation for a temporary taking.