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40 Cards in this Set

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Zoning Basics-
What is it? Zoning is the use of governmental power to regulate land use. Zoning laws divide political jurisdiction into specific separate geographic areas and impose limits on the permissible uses of land within each area. Is the use of public power to impose uniform results that might otherwise be accomplished in more piecemeal and selective fashion by private bargains (via servitudes) and nuisance law.

1. to prevent in compatible uses from occurring (thus reducing the need for nuisance law)
2. to increase property values generally by minimizing use conflicts (thus increasing the property tax base)
3. to channel development into patterns that may serve larger social goals. (ex, reduce urban sprawl and to conserve resources and reduce air pollution from auto commuting)

We can have private zoning and public zoning because people would go willy in there property. There is a tension between planning by market and planning by government. The American approach has been a communistic approach because we talk about government formation of plans.

Constitutional Validity
. Zoning ordinances that openly infringe constitutionally fundamental rights or that emply suspect criteria (race) are presumptively unconstitutional. Zoning laws that lack such damning characteristics, however, are presumptively valid.

Constitutional Validity

Example of:

o They didn’t go to the zoning board to get a variance. Why didn’t they do that? They wanted to win on an injunction not a specific variance. People are not going to bother to buy this property if they don’t have the variance yet. You can challenge the zoning code because the existence itself is void as expressed.
o Does it violate substantive due process? A state can’t violate unless it violates certain standards.
o If the legislature has the power to zone. Where does that power come from? Police powers. It is in the 10th amendment. The providing of help for our well being.
o All the stuff that would give one party the right and not the other. You can’t use property this way because sic utere..
o We are going to protect property rights of those who want to live in there single family homes. All we are doing is the nuisance standard if it violates people use of their property than it is constitutional it is valid. If it in someway is designed to prohibit unhealthy mixed uses to the states police power then the states says its unconstitutional.
o Zoning has to be contextual. You have to look at the area and you have to somehow demonstrate that where we put one no matter where in the town it is going to be a nuisance.
o Who gets the most protection? Family. Because family was the core of conservative values.
 Notes- Justice decides it is unconstitutional as decided
Review of the Village of Euclid case.. The foundation of Zoning law
Village of Euclid v. Ambler Realty Co

Facts: Euclid ohio adopted several zoning ordinances that restrict the use of property, limited the hight of structures and imposed minimum lot size requirements for certain types of buildings. The P argues for an injunction against the enforcement of any of the restrictions, limitations or conditions of the ordinance because a portion of the land of the P cannot be sold for certain enumerated uses because of the restrains.

The SC upheld the validity of the law against a due process and equal protection challenge. The law’s objective – minimizing land use conflicts to prevent nuisances from ever occurring – was a ligit exercise of the state’s police power bc its content was neither unreasonable or arbitrary.

A valid law can, however, be applied to an individual in an unconstitutional manner. A zoning law that so severly restrict use that no economically viable use is permitted is an unconstitutional taking of property without compensation. Zoning ordinances that openly infringe constitutionally fundamental rights or that emply suspect criteria (race) are presumptively unconstitutional. Zoning laws that lack such damning characteristics, however, are presumptively valid.
Structure of Authority underlying zoning
a. Enabling Legislation

Most zoning laws are local. Some sates have regulation statewide. The power of the local governments in relation to the govt of the state in which they are located is controlled by state constitution and state statutes. Usually, the power to adopts is reserved to the state government. If this is the case then the state must enact legislation authorizing local governemtns to adopt zoning laws. In general, a local zoning law is void unless sit is in conformity to the states enabling act. The law authorizing localities to engages in zoning. Every state, even those with home rule cities have enacted legislation authorizing locality to zone.
The Standard State Zoning Enabling Act
The Standard State Zoning Enabling Act- empowers cities to “regulate and restrict the height, number of stories, and size of buildings and other structures, the percentage of lot that may be occupied, the size of yards, courts, and other open space, …. Create use of zones with differing regulations, and modify zoning laws and grant variances when in the public interest to do so.

It requires cities to
1. Create a comprehensive plan designed to accomplish various public objectives specified in the Standard Act
2. Creates procedures to establish, enforce, and alter zoning regulations
3. Establish a zoning commission and an appeal mechanism for affected landowners. Bc the limits on local discreation are clearly expressed in the SA it is not an unconsitutuioanl delegation of legislative authority.
Ultra vires local action
Ultra vires local action- If a local zoning law violates some express provision of the enabling act, or if it deal with matters not authorized by the enabling act, the law is void to that extent. It is ultra vires- byond the authority given the locality under the zoning act.
What is:
b. The Comprehensive Plan
The SA requires that the zoning decisions be made “in accordance with” a comprehensive plan for land use in the locality, which is intended to be a general guide for overall development of a locality. It is a statement of the local govt objectives and astandards for development. Plan based on survey’s and studies of the town’s current position and where it wants to go in the future. Only half the states require comprehensive plan. Some hold that absent very specific language in the enabling legislation, that plan need not be written down in a doc separate from the zoning ordinance itself. Even when a written plan exists zoning regulations inconsistent with it are not necessarily invale, so long as they are considered reasonable and in the public interest. There Is a trend toward finding the plan less lax.

Nonconforming uses:
Nonconforming uses: when zoning is introduced some existing land uses will not be in conformity with the uses permitted under the new zoning law. These uses are permitted to continue to exist because their immediate abatement would amount to either a taking of property without just compensation or an unreasonable exercise of the zoning power. They are often eliminated gradually

1 Forced Phase-out: there may be a specific perion after which the nonconforming use must cease. This is called the amortization period- this period varies and must be long enough to avoid a successful charge that the forced phase-out amount to an uncompensated taking or denial of sub due process.
i. Majority view: Valid if reasonable period: “involves a process of weight the public gain to be derived from a speedy removal of the nonconforming use against the private loss which removal of the use would entail. Factors include: nature of the use, the character of the structure, location, what portion of the user’s total businesss is affected, the salvage value, extent of depreciation of the use, and any monolpy or other advantage conferred on the user by reaons of the foreclosure of similar and competing uses.
ii. Minority view: Invalid per se: hold that forced phase-out are invalid. Or can be considered an uncompensated taking of property, no matter what the length of the amortization period

Nonconforming uses: Example of the minority view
PA Northwestern Distributors, Inc v. Zoning Hearing Board
Moon Township, Penn adopted a zoning ordinance extensively regulating the location of stores vending porno, the effect of which was to make illegal the sotre operated by PA northwestern distributors. The ordinance permitted Northwestern 90 days in which to cease operations.

The P SC ruled that the “amortization and discontinuance of a lawful pre-existing nonconforming use is per se confiscatory and violative of the Penn Constitution.” A concurring justice thought that the ordinance was void because the amortization period was unreasonable – it did not “provide adequate time for elimination of the non-conforming use.”
 90 days is just too short
 Not doing a Euclid analysis where Euclid looks as the zoing ordinance as a whole .. we look at its application toward this piece of property. instead if it is preexisting we have to ask if this use is a nuisance where it is located? If not you can’t change it. You have to wait for what? Use abandonment or condemned by eminent domanie, or a substantial interruption of the use.
 You don’t get to use amorlitization if it is a legal use perexisiting.
 Concurring opinion would apply Sullivan to get to the same result.
• Notes problem 1- A has lost more.
• Justification comes from a vested rights. There is a reward for those who invest and grabs the land.
• There is also an estopple approach. If you buy a certificiate and you rely and the permit does not allow it you can get an estopple.

Nonconforming uses:
2. No expansion
No Expansion: Typically, zoning ordinances stipulate that the nonconforming use may not be expanded beyond the precise boundaries of the existing use. Thus, a successful and growing business located as a nonconforming use will be forced to move to expand. A new occupant will be requires to conform to the zoning law.

Nonconforming uses:
3. Distruction or abandonment
. Destruction or abandonment: destruction of a noncomforming use usually terminates it, and so too for abandonment, which requires intent to abandon the nonconforming use. Some ordinances go further and, to eliminate litigation over intent, prohibit the continuation of a non conforming use if it is “discontinues” for a period of time, say two years.
Administrative Discretion

A. Variances
Variances- another way to get a nonconforming use is to get a variance. Of course there is a standard, the rule is that they have to have a reasonable test. Will giving the variance negitively impact the zone, to look at the harm to the party if the variance is not granted. It has the feel of an injunction and it should. The theory of variance si that they should be granted when compliance with the law would impose such extreme burden on the ower that application of the law might be unconsitutiaon or otherwise invalid.

The standard for granding variances I that that it may be ranted if the zoning law would impose undue hardship on the applicant. This hardship must not be created by or be peculiar to the owner.
Administrative Discretion

A. Variances; example of a Hardship- Commons v. Westwood Zoning Board
Commons v. Westwood Zoning Board- vacant lot. Waited on it and now the land does not facilitate the house that they want to buy. If boards wanted to deny variances they can but they cant act arbitrarily they have to articulate the reasons. The applicant failed to demonstrate that there was any hardship. Show that there is a taking. There has to be some use. How does builing the house neg impact the health and welfare? It does not. Cause they couldn’t cause all the other houses were not in code. Too.
The supreme court reversed the denial of a variance, reasoning that “undue hardship” means that, absent a variance, the property may not effectively be used, a condition that Commons had established by his efforts to either rsell the lard to his neighboy or acquire additional adjacent land to conform to the ordinances area rquiremnts.
Administrative Discretion

A. Variances; Exceptional uses
Exceptional Uses: are uses that are permitted by the zoning law but which might impose material external costs on neighbors. The standars set out in the zoning law govering an exception are rarely phrased I terms of external costs; usually the standard is something like “compatibility with existing uses.” Or “in furtherance of public health, safety, and general welfare.
For a variance what are the two things we look at?
1. Pre-existing non-conforming use(Indeterminent grandfather clause)

2. Subsequent uses- (setback violations)
What are the negative factors that you would look at?
- makes sure no detriment to the public good

- that it would impair the tent of the plan, does this include neighbors concerns also? Yes
What happens legally if the variance is denied?
If it is created by the property owner- and since self imposed hardships are not considered as much you would examine what or how much must be done to bring the land into compliance.
Courts will not Permit a Variance if..
the neighbor chooses to buy the extra land and the value has to be if the vairience was granted to be fair to everyone
Example of exceptional use:

Cope v. Inhabitants of the town of Brunswick- The zoning board refused to grant an exception for a 48 unit apartment complex propsed to be located in a suburban residential zon.e The law permitted excetions which did not “adversely affect the health, safety of general welfare of the public” and which would not “alter the essential characterisits of the surrounding property” but the zoning board thought that the apartment complex would produce aderverse effects and alter the essence of the surrounding property.
The court found that the standard in the code gave the zoning board no lawful “basis for determining that a particulare location was unsuitable becase of the existence of certain characteristics which rendered the general legislative determination inapplicable.
What if the land is zoned for X but I want to do Y
They will grant but will put conditions on the grant.
Do variances run with the land?
Yes they do.

Variances are there to *avoid unconditutional application of a zoning ordinance*
Should a vairance be granted on the ground of practical dificulties or unnecessary hardship?
no; existing violations cannot be made a basis for further violations, and "hardships" does not include personal infirmity... Irrelevant hardships that are a product of personal circumstances.. note 2. pg 992
Special Use Permits/Same as Exceptional Uses- we discussed earlier...
They say that is is ok to build that type of building but we have to give you the go on how it looks.
Example- Special Use permits

How was this case viewd? What was unconstitutional was the way in which this statute was written. It was written by the legislation who gives the power to the zoning board. The zoning board inturn argued that the building could not be build because it did not fit in with the health and blah blah that they look for. The builders argue for unconsitutional grounds, Since it is a special permit they can build already. The zoning board is appointed by the Mayor and they are given the athority to regulate and not to legislate. The bill that they were give gave them the power to legislate and this makes it unconsitutiaonal. Examples of the the ZB does have the power to do is conduct the impact of the building on traffic, parking, environment ect.
Variances v. Special Use Permits (exceptions)
Variances- can be vague you must show the hardship on the property and the hardshop on the intended comprehensive plan.

SUP- can not be vague, you don't let people change them, if you keep it out does not mean that you are relegislating...

Some states do allow Cope because state enabling statutes permit it
What do you do if you can't show an undue hardship and you can't put up a variance fight?
you argue for rezoing.. it is not unusual
the two questions to ask are
Zoning Amendments and the Spot Zoning Problem
- Spot Zoning- a zoning amendment that delivers special private benefits (and no public benefits) to a small, discrete parcel of land which is not in conformity with the comprehensive plan.
- The traditional approach is that the amendment is valid until the challenger has proven otherwise
Zoning Amendments and the Spot Zoning Problem:

-The Rochester, city council amended a city zoning ordinance to rezone a tract of land on the edge of a business district from a low to high density housing area. Allowing young to construct a 49 unit condo.
- The council decided that the proposed use was compatible with the existing use and that there was a need for high density housing in that area.
- A local group sought to invalidate this rezoing arguing that
1) The amendment was quasi-judicial in character and thus the courts should not presume its validity abasent substantial documentary evidence supporting the change.
2) The land was inconsistent with the current land use.
3) The amendment was invalid for spot zoning.

- The court held that: the relief should be denied on the grounds that since it was determined by a legislative board and they traditionally determine what is in the publics best interest.
- The fact that the land did not conform with the existing land use was not enough to invalidate the amendment nor shift the burden of proof to the city.
- There was no proof that the land use would substantially cause a diminution in value of the property. Or that it was an island of non conforming use.

- If this was a case that did in fact involve spot zoning. Than the government would bear the burden of proof that the changes brought on the amendment bear a substantial relationship to the general welfare of the affected community.
More notes on Spot Zoning;
sometimes viewed as giving out a favor... (it is a legislative vairiance as opposed to an ordinance)

Look for these three elements
1. Small parcel of land
2. Created for a land owner's benefit and not public at large
3. Goes against comprehensive plan.

If all three are there- Ct places burden on the P to show why change is better for community.
- look for an agreement between developer and board

*spot zoning can also be done in reverse to target someone
What do you do if you don't get the rezoning that you want? What do they do in Michigan?
- you can add it to the ballot and maybe the people can vote yes

- Michigan- you can get an annexation. Township's have little power but the city has a greater power. The city is always willing to annex and get bigger.
You could also seek out an aggrement..

Conditional Zoning
sometimes a developer wishes to use land in a fashion not permitted by the zoning law, and requests rezoning in exchange for the creation of a servitude burdening thte land that is intended to eliminate or dampen the negative externalities of the proposed use.

Can be unilateral- if you rezone i promise to build
or Bilateral- if we rezone wil you put prop here?
Floating Zones:
use designation not attached to any particular land until a landowner seeks to have his land designated as the recipient of the floating classification.
Cluster Zoning and Puds-
the ides is to zone a particular area for a particular use at the specified level of denisity of occupation, but confer upon zoning administrators distraction to decide exatly how that use and density will be achieved.

PUD- similar to cluseter zones- they are a mix of residential, commercial and sometimes even industrial. Cluster involve area variations, Puds involve use and area variations.
For each of the differeing administrative discretions what do you need to know?
there are Variances, (undue hardships not created by or peculiar to the owner, Special Use (exceptions), Spot zoning, floating zones, Conditional zoning, Cluster zoning.. know that they all have some relationship to the comprehensive plan.. know when they would become under scrutiney as to being illegal

Zoning for aesthetic objectives
The traditional, judicially created, rule was that the use of zoning to achieve aesthetic objectives was beyond the permissible scope of the police power. Recently, several courts have upheld aesthetic land use regulations banning uses that result in lower property values.

Architectural review
Architectural review: Typically, such a scheme conditions a land use permit of some kind on
1- The conformity of the proposed structure to the existing character of the neighborbood.
2- The likelihood that the proposed structure will not cause substantial depreciation of the neighboring property values.
Architectural review:


State ex. Rel. Stoyanoff v. Berkely
property values and maintain Ladue’s conventional neo-colonial architectural aesthetic sensibitilites. S proposed to build a pyramid a pyramidal, flat-topped residence with triangular windows. The proposal was rejected and S attacked the validity of the entire scheme as unauthorized by the enabling act, outside the scope of the police power is so authorized, and a violation of due process if within the otherwise permissible scope of the police power.
- The Missouri Supreme Court upheld the Ladue law, reasoning that the architectural review os for the general welface and thus authorized by the enabling act. A rejection was reasonably related to preserving land values of the prevailing aesthetic sense of the community.
- This trend of furthering police power is a good thing.
First Amendment Concerns
- no court has ever held that architectural expression is protected by the first amendment, but it is a common view of commentators that design regulation, because it implicates expressive values, should at least be subject to close scrutiny.
- Strict scrutiny means that they are presumptively void and the government has the burden of proving that the speech restrictions is necessary to accomplish a compelling givernement objective, and laws that regulate speech in a consent-neutral way are subjected to more relaxed scrutiny.
- Zoning based on speech- such laws are presumptively invalid and can be saved if the govt can overcome the strict scrutiny
- Zoning that is neutral as to the content of speech- laws that regulate speech in a content-neutral fashion are invalid if they are either
o Broader than reasonably necessary to achieve a significant govt purpose other than speech regulation
o So restructive that they fail to leave open ample alternative channels of communication

City v. Gilleo
City of Ladue v. Gilleo
- In order to minimize; visual clutter” the affluent neighborhood of St. Louis banned all signs except “for-sale” signs, business or home id signs, and a few others
- It would not allow Gilleo’s sign declaring Peace in the Gulf. Eventho it was content neutral the Supreme court voided it because its “near-total prohibition” on signs failed to leave open enough alternative means of communication. Ladue’s law banned an entire medium of communication.