Old Land Use Outline

7/25/2019 Old Land Use Outline

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LANDUSEPLANNINGBOOKOUTLINE, FALL2014B. NUISANCEASALANDUSECONTROLDEVICE

Nuisance law is sometimes referred to as judicial zoning for when legislative rules are sparse.

Most common in unzoned rural areas

Nuisancecant use your property in a way that injures anothers rights to their own property

No unreasonable uses of premises that materially annoy neighbors

Bove v. Donner-!nn! Co"e Cor#.

F!$%&' !o"e #actory began operating in the neighborhood long after $uyer bought her home. %team from the

#actory carried dirt and soot into $uyers home and cause her poor health. %he sued& claiming the #actory was a

nuisance.

I&&(e''ere the !o"e #actorys activities a nuisance capable of being enjoined(

e)*'No& they were not a nuisance. )he area was never fitted to be a residential district& and had traditionally

been used as an industrial site. $uyer "new before she moved in that she might be subjected to dirt& fumes& etc.

because she chose to live in a city and not the country.

'hether something is a nuisance is a *uestion of fact& and depends upon whether it is reasonable given

the surrounding circumstances.o nuisance must be certain& substantial& and interfere with the physical comfort of a reasonable

person

In*(&%r+!) o#er!%+on& !re no% %#+$!)) n(+&!n$e& en $on*($%e* +n !re!& e$+/+$!)) &e% !&+*e /or

%e+r o#er!%+on.

+eep in mind that& when the $uyer moved in& there was a hic"ory grove ne,t door to the $uyer.

'hen she moved in& the zoning statutes had not yet even been enacted . . . -'%-//+))0M0N1

'23N/4536-N64%3!%3%.o ou should always also be wary of how a court characterizes land . . . )he land the $uyer bought

really could have easily been a residential. 0t wasnt as clear cut as the court suggested

)he court relies on the fact that factories are necessaryfor cities because they produce jobs andeconomic health. )hus& you cant e,pect the *uiet of the country if you choose to live in the city.

$asically& nuisance is a !)!n$+n %e&%' $alance the gravity of the wrong against the utility of the conduct

)hus& nuisance really isnt very predictable at all. 7oning was meant to address this unpredictability

Notes.

Nuisance. nuisance is an unreasonableinterference with the use or enjoyment of land. )he harm against the

plaintiff must be weighed against the public utility of the defendants actions.

8lanning loo"s forward& while nuisance loo"s bac"

8lanning involves the whole community& while nuisance only involves the litigants

8lanning is general& while nuisance is specific 8lanning is predictable& while nuisance is not

Farming and Nuisance. %ome residential areas developed around farms and were successful in having them

shut down for nuisance. fter that& all states passed right9to9farm acts& immunizing certain farm operations

from being declared nuisances.

Aesthetic, Emotional, and Psychological Injuries. )hese sorts of claims against neighboring land use generally

arent actionable :i.e.& losing your view of the river isnt actionable;.

Must actually be a physical harm occurring


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et some courts allow aesthetics9based claims where diminution of value can be shown. %ee #oley v.

2arris& :allowing aesthetics9based claim where prospective purchaser of plaintiffs lot lost interest

because of wrec"ed cars lining defendants lot;.

Evolving Nuisance Laws.Nuisance law can evolve to meet conduct that has only recently emerged as harmful.

Nuisance per accidens. 'hile a nuisance per se is an action specifically characterized by law as a nuisance& a

nuisance per accidens is a legal action that is only a nuisance because of the specific circumstances surrounding

it.

ctivities that are licensed or permitted by statute cannot be a public nuisance.

private nuisanceinvolves an invasion of the interest in the enjoyment of land& while apublic nuisance

involves an interference with the rights of the public.o n action could be both or neither

hortcomings o! Nuisance Law. Nuisance law has proved inade*uate to address problems brought by a growing

population and increased land development. Many developers are hesitant due to nuisance laws

unpredictability.

Nuisance law also cannot address cumulative harm :i.e.& smo"e damage from tons of smo"e9producing

operations nearby. !ant be addressed because you cant pinpoint the e,act operation causing the

damage;.

D. PLANNINGASTECRITICALTOOLFORFRAINGLANDUSECONTROLS

2. THECENTRALITYOFPLANNING

U*e)) v. !!&

F!$%&')here were two roads that cut through town in this shape< = :from top left< *uads >& ?& @& and A;.

-andowner owned land in *uadrants ? and @& both of which were zoned for business uses. )he town tried to

rezone all the *uadrants as residential based upon whether they were west or east of the vertical road.I&&(e''as the rezoning constitutional(

e)*'No& it was not& because it was discriminatory and not done according to the towns comprehensive

plan. 2ere& -andowners building was located in a portion of town that been zoned for business for over a

decade. %traying from that showed the town clearly strayed from its comprehensive plan.

To e v!)+*, 3on+n must e +n !$$or*!n$e +% ! $o(n+%5& 6$o#reen&+ve #)!n7 /or

*eve)o#en%.

o 8/-0!< #ollowing a plan shows that the community had some foresight about potential

problems that might occur& and that its zoning laws arent capricious or arbitrary. dditionally& it

protects landowners from abusive uses of zoning laws.

o -oo" at whether the decision was rushedB whether they appropriately considered all the issueswith zoning changesB etc. to decide if it actually followed the comprehensive plan.

-oo" at the totality of the circumstances to decide what the comprehensive plan actually is.

o -oo" at zoning mapsB e,pert testimonyB current land useB etc.

Notes.

"odel Land #evelopment $ode %"L#$&.0n response to the unpredictability of zoning laws& the merican -aw

0nstitute released the M-6!& which integrates zoning and subdivision regulations and streamlines the

development permission process.


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3. THECOMPREHENSIVE, GENERAL, ORMASTERPLAN

$oth #lorida and !alifornia have laws establishing mandatory elements of a comprehensive land use plan.

CAPTER289ONING' CLASSICTOCONTEPORAR:A. LOCAL9ONING' TECLASSICS

lthough some view zoning as *uintessentially local& localism sometimes reinforces economic and social

ine*ualities through political power. 5egional problems are often addressed by regional special purpose districts. )hese districts are typically

formed to provide water& transit& waste disposal& and educationo 4nfortunately& these districts have added to the problem

1. The Clss!" Cses

V+))!e o/ E($)+* , O+o v. A)er Re!)% Co.

F!$%&'!ity of 3uclid enacted a zoning ordinance& which would have forced ppellee to use his land for

residential& and not industrial& purposes. )his change would cause ppellee to lose loads of money :CDEF of his

value;. ppellee sued& claiming the ordinance deprived him of property without due process.

I&&(e''as the ordinance constitutional(

e)*'es& it was.

'hile the police power justifies zoning ordinances& the same ordinance might not be e*ually

constitutional in different settingse.g.& a town as compared to a rural area.o An or*+n!n$e5& $on&%+%(%+on!)+% +& $+r$(&%!n%+!).

n ordinance is still valid even if it e,cludes more than it needs to be enforced& so long as its reasonable

)he court claims e,cluding certain buildings associated with trades and businesses from residential areas

has a rational relationship to the communitys health and safetyo %eparating residential& business& and industrial buildings will ma"e it easier to fight firesB ma"e

neighborhoods safer by preventing traffic accidentsB etc. s a result& the ordinance was rationally related to public safety

o partment buildings are described as a blight

An or*+n!n$e5& e//e$% on #ro#er% v!)(e& *oe& no% !//e$% +%& $on&%+%(%+on!)+%. :might not be true&

listen in class for this;

3ssentially& the court compares reasonableness in zoning to nuisance law . . . Nuisances are only illegal under

certain circumstances.%imilarly& certain zoning restrictions are only reasonable in certain circumstances.

)he court gives a lot of deference to the -egislatures zoning choices . . . they can be reasonably over9 or

under9inclusive

$ut zoning cant be thesameas nuisance because nuisance is a parcel to parcel comparison . . . $ut it

can be arbitrary. %ee Nectow.

0n this case& ppellee wanted to put apartments in the residential area& which was disallowed. )he court decides

that preventing apartment buildings there #srationally related to using the police power for public health&welfare& etc.

$asically& the ordinance was meant to "eep poorer people out of residential areasto segregate them

according to income.o T+& #(r#o&e $!n5% e re)!%e* %o %e$u%l!" e)/!re.!hoosing one group over another does not

amount to the public welfare& because it relegates one group to lesser conditions& etc.

)his case shows how zoning ordinances can be used to perpetuate social injustice.

Ne$%o v. C+% o/ C!r+*e


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F!$%&'ppellant contracted to sell land for business G industrial use. )his land was surrounded by railroads and

industrial plots. 2is purchaser refused to comply with the contract& however& after !ambridge enacted a zoning

ordinance that designated the land as a residential area. )he lands value was greatly reduced without the

possibility of supporting a trade or business. s a result& ppellant sued by claiming the ordinance deprived him

of property without due process.


e)*'No& it was not.

9on+n re()!%+on& !re no% $on&%+%(%+on!) en %e *o no% e!r ! 6&(&%!n%+!) re)!%+on7 %o %e

#()+$ e!)%, &!/e%, or!)&, or ener!) e)/!re.

o 2ere& an appointed master for the case found that the ordinance was not substantially related to

these factors.

5ather than challenge the zoning law on its face& li"e in 3uclid& ppellant challenges it as9applied.

7oning should not have survived after Nectow& but the %upreme !ourt didnt ta"e another zoning case for EH

years.

$etween 3uclid and Nectow& there wasnt clear guidance. 3ssentially& there was only the notion that

zoning& as a broad idea& was fine. s a result& courts had to fill in the gaps& and zoning became localIstate

law.

!ustomary accessory uses to single family homes

Notes.

urrounding areas.$oth 3uclid and Nectow are concerned with the characteristics of both the plots in *uestion

and surrounding areas.

'ome values. )hese cases essentially pushed zoning as a means of protecting civic and social values of the

merican home. 2ome life& the courts reasoned& was the most important factor in creating good citizens.

/wning homes& they reasoned& encourages stability& more attention to children& more support for

churches& etc.

3. Autho&!t' to (o)e

)e,t of the %tandard 7oning 3nabling ct 4nder 'hich Municipalities May dopt 7oning 5egulations found

here.

%3!)0/N>. !ities may enact zoning regulations to serve the public welfare& health& safety& or morals.

)hese regulations could address height& size& occupation& land use& etc.

%3!)0/N?. )hey may divide land into different purposes< residential& industrial& etc. $ut the

re*uirements in any one district must be uniform for every building.

%3!)0/N@. )hese regulations must be made according to a comprehensive plan.

%3!)0/NA. )he legislative bodies will decide on content and enforcement. $ut every ordinance musthave a hearing before hand.

%3!)0/NE. 8eople have a chance to protest and prevent an ordinance. 0f ?HF of owners oppose it& it

wont go through. $ut the legislative body can override this by a J vote.

%3!)0/NK. 7oning commission has to do all the research and whatnot.

%3!)0/ND. $oard of djustment may allow e,ceptions to the zoning ordinance& so long as these

e,ceptions are in line with the general purpose of the ordinance.o 0ts decisions can be appealed& which stays all actions furthering the ordinance.

Notes.


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(utdated.)he %tandard 7oning 3nabling ct :%73; is outdated. )he Model -and 6evelopment !ode

:M-6!; is much more updated& integrating zoning and subdivision regulations and streamlining the

development permission process.

8rimary focus is development& not planning

/nly #lorida has really embraced it.

'ome rule authority.%ome states& li"e !alifornia& grant police power directly to counties and cities. )hus& they

have a broad& but not unlimited& power to zone. )his home rule authority is granted by statute in some states.

'here home rule authority e,ists& local ordinances !NN/) conflict with state law

$ut in some states& home rule authority does not confer zoning power

B. BASE9ONING' USES, FLE;IBILIT:, ANDDESIGN

2. *se +!st&!"ts ) A&e Re-u!&eme)ts

P+erro v. B!


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0f the motel was permitted when 8ierro applied . . . he would have a vested rightto build a motel even

after the new amendment.

7oning classifications are subject to rational review . . . so its a low standard& and most courts defer to the

legislature.

!ourt also says you can e,clude a use entirely from all zoning districts in a town . . . if youre preserving

property values.

$ut this is relative to whoseproperty youre tal"ing about.

lso& the relationship between property values and zoning is circular.

)he court seems an,ious here to protect the towns goal of protecting property values . . . so it reads into the

statute what wasnt there before. 0t could have forced the town to deal with its lac" of foresight& but it ta"es the

opposite tac" and tries to protect it from its inability to predict the future.

n ordinance that completely e,cludes a certain use :e.g.& a homeless shelter; forces other nearby towns to bear

the brunt. 0.e.& homeless people will travel to other towns.

0n 8ennsylvania& a total9use e,clusion raises a presumption that the zoning ordinance is unconstitutional.

o 8uts burden on municipality to show that the e,clusion is justified

Notes.

#ra!ting regulations./rdinarily& the widest& most permissive uses of land should be the defaultonly limited&

reasonable ordinances resulting from the police power should curb desired land uses.

!ourts often fall into the trap of characterizing proposed land uses in non9zoning terms.

E)clusion. )o maintain peace and *uiet& many ordinances try to completely e,clude undesired people by

re*uiring single family uses. )here are other ways to deal with problems rather than complete e,clusion.

Agricultural uses.7oning land for agricultural uses is often viewed as a way to preserve open land at farmers

e,pense. )o succeed& the govt should consider soil type& the need for agricultural production& and otherresources& including groundwater.

ern!n*e3 v. C+% o/ !n/or*

F!$%&')he !ity was developing a new planned commercial district. )o protect the economic viability of its

downtown area& which was filled with furniture stores& the !ity enacted an ordinancepermittingdepartment

stores and home furnishings to be sold in the 8! district. 0t did not mention furniture sales& however& so it was

unclear whether such sales were or werent permitted. lmost a decade later& 8laintiff opened up a furniture

store in the 8! area and was fined by the !ity& although department stores were not also fined for selling

furniture. %hortly thereafter& the !ity enacted a new ordinance specificallyprohibitingfurniture sales in the 8!

area& with one e,ception< large department stores could continue to sell furniture& so long as they limitedfurniture to less than ?&EHH s*. ft. of store space. 8laintiff challenged this later ordinance.


e)*' es& it was.

5estricting the e,ception to large department stores served the goal of preserving the economic viability

of boththe downtown area and the planned commercial district. 6epartment stores were necessary for

the latters economic health.

A 3on+n or*+n!n$e ! )!/()) re()!%e e$ono+$ $o#e%+%+on %o !$$o#)+& !n o?e$%+ve v!)+*)

+%+n ! $+%5& #o)+$e #oer %o &erve %e ener!) e)/!re, &($ !& #re&erv+n e!(% or #reven%+n

(r!n=&((r!n *e$!.


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o $ut it cant regulate economic competition just to secure a competitive advantage to a party

o dditionally& cities can accomplish more than one goal with an ordinance. 2ere& the city wanted

to both protect the downtowns economic viability and ensure the department stores would

continue to do business in the town.

$ecause no fundamental rights were implicated& the court used the rational relationship test.

Municipalities lac" any power unless the state specifically grants them that powerthat includes zoning.

0ts /+ for zoning to regulate economic competition if theprimarypurpose of the ordinance is N/) theprivate

anticompetitive goal of protecting or disadvantaging aparticularfavored or disfavored business

7oning can regulate economic competition only i!it advances a legitimate 84$-0! purpose

3ssentially& its /+ to have that use as long as theres nothing particularly harmful about it :in a special9use

conte,t;.

Notes.

Anti*!ormula business ordinances.$ecause corporations typically use the same building design and signage

everywhere& some cities are enacting anti9formula business ordinances to maintain the uni*ue loo" of theirtowns.

Many have been deemed to violate the dormant commerce clause by having the practical effect of

discriminating against out9of9state business. Many businesses could not operate within the strict

constraints re*uired by these ordinances.

+ig bo) stores./ften located on the fringes of a town& big bo, stores encourage sprawl development& which

increases cost in municipal infrastructure& road congestion& and loss of open space. )hey may also present

competition problems for local businesses.

dditionally& abandoned big bo, stores are an eyesore and draw vandalism.

Anti*competition laws.%tates are protected from liability for anti9competition laws. 8ar"er v. $rown.

dditionally& persons have a #irst mendment right to petition the government for anti9competition laws

without fear of liability. Noerr98ennington.

Federal Land se $ontrols.)he federal governments role in land use planning has dramatically increased over

the last AH years :#air 2ousing ct& %urface Mining !ontrol and 5eclamation ct& !lean 'ater ct& etc.;.

dditionally& the )elecommunications ct of >LLK partially preempts local authority to regulate cellular

towers by< @1providing that local authorities may not unreasonably discriminate among providers of

functionally e*uivalent servicesB @2may not act in such a way that it has the effect of totally prohibiting

such servicesB and @ may not consider the environmental effects of radio fre*uency emissions if thefacility complies with federal regulations concerning such emissions.

-uc"ily& %!/)4% has lately seemed more willing to scrutinize federal commerce9clause laws affecting

state and local affairs.

#ormant $ommerce $lause.#unctions as a restraint on state G local government ability to control land use. s

a result& it protects against economic protectionism.

state or local ordinance that regulates even9handedly to effectuate a legitimate government interest

and has only incidental effects on interstate commerce will be upheld . . . unless the burden imposed on

such commerce is clearly e,cessive in relation to the putative local benefit. 8i"e v. $ruce !hurch& 0nc.


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0sland %ilver G %pice& 0nc.& :holding towns goal to remain uni*ue and free from formula businesses was

not legitimate;.

0. Co)!t!o)l *ses

!onditional or special use deals with uses that& by their nature& are difficult to fit within a particular use zone

where they can operate by right.

)hey are conditional& and not allowed outright without review& because they mayhave significant

adverse effects

Peo#)e5& Co(n&e) /or B!)%+ore Co(n% v. Loo)! Co))ee +n !r)!n*

F!$%&'-oyola !ollege bought land. 0t applied to build a retreat center on it as a special use& and the zoning

board approved the use. )he locals appealed the decision& claiming that the center would have adverse effects

given the immediate locale. )hey presented evidence that& at other locations in the zone& the adverse effects

would be diminished.

I&&(e'6oes a zoning board have to compare the adverse effects of a special use at the proposed location to the

effects it would have at another location in the zone(

e)*'No& it does not.

)he applicant just has to prove there wont be a substantial harm& not that his proposed use would

provide additional benefits to the area.

'hen the *uestion of harmIharmony with surrounding is!airly debatable& courts should defer to the

zoning board.

B !))o+n ! e$+!) (&e +n ! 3one, %e )e+&)!%(re o!r* +& $on&en%+n %o %e+r #o%en%+!) !*ver&e

e//e$%& !##e!r+n )'#he&e+n %e 3one.

o )hus& neither the applicant nor the zoning board need to consider whether a proposed use has

more adverse effects in a certain area of the zone than in other areas of the same zone.

-egislaturesP-E"Ethat an intended use is compatibleso the burden is on the dissenters to show that the

prospective use is N/) !)4-- !/M8)0$-3 '0)2 )23 !)4- %455/4N60N1 4%3%Botherwise& the permit will issue.

$ut the applicant has the burden of showing that his use wont be substantially harmful

0f both sides present persuasive evidence& and the $oard is not sure where to go& then

3ssentially& this case suggests that special uses are closer to uses as of right than to prohibited uses.

M+3%453/4+N/')23#!)/5%/N813>??.

o G 1 are good for townships because they provide fle,ibility. 8ublic welfare is very fle,ible

because& as long as what the town says is rationally related& will be upheld. 0t catches uses that

they didnt thin" of before but dont want now.

s long as the police power doesnt implicate a fundamental right& it is under rationalrelation review.

)he -egislatures zoning ordinance is a legislativeaction and subject to a deferential review under the police

power& so long as it doesnt implicate a fundamental right. $ut the zoning boards 63)35M0N)0/N of

whether a special use is permitted is a *uasi9judicial& #!)4- determination . . . thus& review is limited to

abuse of discretion I error of law.

urisdictions vary as to whether the zoning board must create formal& written findings of fact


9/49

53M3M$35< '23N-310%-)4533N!)%7/N0N1/560NN!3/5M+3%!-%%0#0!)0/N. . . 0)0%

%4$3!))/5)0/N-53-)0/N5303'& '20!20%)23M/%)63#353N)0-M/63/#%!54)0N.

Notes.

tandards !or allowing special uses.Most courts allow fairly loose standards for deciding whether to allow a

special use because its hard to predict future problems.

%ome courts& however& re*uire stricter standards. %o just re*uiring a special use not adversely impact

the public interest might be too vague. /therwise& they claim& the legislature is abdicating its duty to

decide what e,actly constitutes the public interest.

0n other words& the standard cant be too vague.

oning boards.7oning boards only have the power to decide whether a listed conceptually compatible use will

in FA$/be compatible with surrounding uses at a particular location. $ut its not free to reject the presumptive

finding of compatibility.

$hallenging special use standards.0f a plaintiff challenges special use zoning standards and wins& leaving a

blac" hole where the ordinance use to be& then he has ultimately lostthe underlying regulation remains in

place& and the zoning ordinance is gone. )hus& his intended use isnt even potentially compatible anymore.

. Oe&l' ) Flot!)/ (o)es

)hese are designed to promote fle,ibility& just li"e special uses.

(verlay 0oneoverlies established use districts& subjecting owners to two sets of regulations. 4sually

spread over two or more zones.o /ften used to preserve historic areas and the environment

o Might run afoul of the %73s re*uirement that all regulations be uniform for each class or "ind

of building in a district.

Floating 0oneszones initially put out as te,t amendments without actually being put on the map until a

later date. "i)ed*use planned unit developmentusing two uses on one plot of land.

+u!!er90onessometimes to ease the difference between neighboring zones of different uses :i.e.&

commercial to residential;& zoning boards will place a buffer zone between them :i.e.& a *uasi9

commercial& *uasi9residential zone;

Per!ormance 0oningby measuring the effects a use might have on the property and limiting them that

way. 3.g.& a factory might produce too much noise or sound for the area& or too much smog . . . s a

measurable *uantity.

C. 9ONINGADINISTRATION

/ftentimes& zoning laws dont capture what a municipality needs at the moment. zoning board and the peoplemight want to do something against the zoning laws . . . so ability to change is important

8rocess is important here

/rdinances laying down general policies without regard to a specific property are usually an e,ercise of

legislative authority . . . while a determination of whether the permissible use of a specific property

should be changed is usually an e,ercise of judicial authority and its propriety subject to a different&

more strenuous test

1. S$ot (o)!)/ ) *)!o&m!t'


10/49

P)!+n& Gr!+n& L++%e* P!r%ner&+# v. Bo!r* o/ Co(n% Co5r& o/ C!&$!*e Co(n%

F!$%&'-andowner sought a zone change from agricultural to heavy industrial to allow for the operation of a

coal9fired power plant. 'hen the rezone was approved& 8lains 1rains filed suit& alleging that it constituted

impermissible spot zoning.

I&&(e'

e)*'

0t would have been out of character for e,isting land uses . . . but not alloweduses.

$oards cant issue special use permits unless they ma"e re*uired findings< :>; no material danger to

public health& safety& or welfareB :?; development will not devalue surrounding property& unless it is a

public necessityB and :@; the proposed use will be in harmony with the area in which it is located.o pplicant bears burden of bringing in enough evidence for $oard to ma"e this determination

lthough a special use would have allowed the plant& the company wanted a rezone to ta"e advantage of

ta, benefits from the change to help finance its construction

Tree /!$%or& %o *e%er+ne o% 3on+n' @1 *oe& %e re(e&%e* (&e *+//er &+n+/+$!n%) /ro %e

#rev!+)+n )!n* (&e& +n %e !re! @2 I& %e !re! %o e re3one* %oo &!)) %o ene/+% ore %!n ! /e

)!n*oner& An* @ +)) %e 3one $!ne e +n %e n!%(re o/ 6e$+!) )e+&)!%+on7 *e&+ne* %o

ene/+% on) ! /e )!n*oner&, (% !% %e e; 'hat does prevailing actually mean( :?; what does relatively small actually mean( :@; )he criteria the court offers is not really helpful.

5everse spot zoning

Notes.

pot 0oning.)he real test for spot zoning is whether the change is other than part of a well9considered and

comprehensive plan to serve the general welfare of the community. !ollard v. illage of #lower 2ill.

0n other words& spot zoning itself is not illegalonly spot zoning that doesnt help the general welfare&

but only a single landowner.


11/49

%o there is spot zoning& and then there is illegal spot zoning.

/a) increment !inancing districts.)hese districts constitute a major subsidy to develop within a blighted

redevelopment district. )he property ta,es collected are used to develop infrastructure for the project . . .

diverting ta,es that would have gone to the local government or local schools.

$ut it clearly supports a public purpose of redeveloping blighted lands

-eason v. the masses.5emember< ust because a lot of people oppose a land use& doesnt mean it shouldnt be

pushed through as part of a comprehensive zoning plan anyway.

trategic Lawsuit against Public Participation:%-88 %uits;. 6evelopers often use these to deter citizen action

and deplete citizen resources. Most of these suits claim that negative speech about the project is defamatory

mainly& its just a tactic to shut people up long enough to complete the project.

3.g.& the 246 sued the citizens of $er"ley& !a. for violating the #air 2ousing ct when they opposed

the development of a group home for the mentally disabled there.

Many states now have anti9%-88 statutes to route unworthy cases out early on

!itizens can fight bac" by counter9suing for malicious prosecution or abuse of process.

COENTONUNIFORIT:

%73 O ? provides in part that all such regulations shall be uniform for each class or "ind of building through

each district& but the regulation in one district may differ from those in other districts.

3ssentially& a statutory e*ual protection command that li"e uses be treated the same

%pot zoning that gives different treatment to a single plot of land surrounded by similar land for the

economic benefit of the owner violates e*ual protection

4niformly applicable regulation that might produce different results on land within a district do notviolate

uniformity re*uirements.

!onditional zoning& however& might run afoul

-imitations imposedon land by mutual agreement dont violate uniformity . . . but limitations li!ted

from land might

/verlay zoning might raise uniformity objections.

2. (o)!)/ Le/!slt!e o& 4us!56u!"!l

Most state courts try to treat zoning amendments as legislative acts& thus giving them a presumption of validity.

)he same is true of a denial of a re*uest to rezone.

)his highly deferential review can give local legislatures nearly unrestrained power& so many courts tend

to review ordinances under a much harsher lens when they suspect wrongdoing.

$ut the fact that zoning boards of adjustment have the right to decide whether permit applicants may

build means they apply law to the facts of a situation . . . 0n other words& these boards act in a 2uasi*

judicial capacity.o cting in this capacity subjects them to much harsher scrutiny

F!&!no v. Bo!r* o/ Co(n% Co+&&+oner& o/ >!&+n%on Co(n%

F!$%&'6eveloper got the local board to rezone land it owned from residential to planned. 6oing so allowed it to

put a trailer par" in the area. )he $oard denied the -andowners appeal at first. $ut on appeal of that decision&

the trial court found in favor of the -andowners bIc the 6eveloper had not shown why the surrounding


12/49

neighborhood changed. )he !ourt of ppeals affirmed this reversal bIc 6eveloper had not shown trailer par"

was part of comprehensive plan.

I&&(e'%hould the zoning change be upheld(

e)*'No& it should not.

'hen a legislative action creates a general rule or policy that is applicable to an open class of

individuals& interests& or situations& it is a legislative act and gets judicial deference. $ut when the

legislature applies the general rule to specific individuals& interests& or situations& it is a judicial action

that does not get deference.

>en %e )e+&)!%(re !%%e#%& %o $!ne 3on+n )!&, +% (&% #rove %!% %e $!ne $on/or& %o

%e $o#reen&+ve #)!n. To #rove %+&, %e ov5% (&% &o' @1 %ere +& ! #()+$ nee* /or %e

$!ne !n* @2 %e nee* +)) e e&% &erve* $!n+n %e $)!&&+/+$!%+on o/ %e #!r%+$()!r

#ro#er% !& $o#!re* %o o%er !v!+)!)e #ro#er%.

o )he greater the change& then the harder to prove its part of the planB the harder to show the

impact on the surrounding area was carefully considered.o 0f other areas have previously been designated for the particular change& the govt must show< :>;

why its necessary to put the change where proposedB and :?; why those particular property

owners should bear the change.o 2ere& there was absolutely no e,planation for the zoning change& so the court struc" it down.

0ts more important to prevent local governments from being manipulated by economic interests into

ma"ing unnecessary or unfair changes than to have it be easy to ma"e desirable or fair changes.

#asano

/ut of #asano& there came out ? ways to limit governmental power< :>; treating it as a *uasi9judicial decisionB

and :?; re*uiring that zoning changes be made in tune with a comprehensive plan.

-ots of deference for legislative decisions& but not as much deference :and the burden shifts; for *uasi9

judicial decisions.

)he court ma"es a point of saying that not all legislative decisions get the same deference as a 3uclid

decision

)he court is worried about politicians being bought bIc they are in small govt :i.e.& not a whole lot of

representatives& so there is an easy number of people to bribe;

)he idea is that federal govt has enough factions to balance out all the other interestsits why the

court in #asano thin"s that the federal govt is less susceptible to corruption

)he findings are a "ey piece of the decisionyou have to ma"e findings in an impartial& objective manner.

/rdinance laying down general policies without regard to specific properties are legislative . . . while

determining whether the use of a specific piece of property should be changed is judicial. 0n #asano& the court applies this rule by claiming it was general& so it should be treated legislatively.

)he problem here is that almost all rezonings affect specific property. Most decisions can be categorized

in both ways.

Bo!r* o/ Co(n% Co+&&+oner& o/ Brev!r* Co(n% v. Sn*er

F!$%&'%nyder owned land in a flood zone and petitioned for a zoning change so he could build more units on

his property. n ordinance restricted the property to two units& but %nyders construction wouldnt begin until

after the conditions that had spawned the ordinance were no longer a problem. )he commission originally


13/49

thought to approve the change& but neighbors opposed it. s a result& the commission denied the re*uest but did

not provide an e,planation as to why.

I&&(e'

e)*'

'hen the policy9ma"ing function of a legislature is before the court& it gets deference if it is fairly

debatable. $ut if its *uasi9judicial& it is upheld only if supported by substantial evidence.o 1enerally& creating a general rule or policy is legislative& while applying that rule is judicial.

o !omprehensive rezonings that affect a large portion of the public are legislative. $ut when the

impact is on a limited number of people& its normally *uasi9judicial.

(n+$+#!) *e$+&+on& on !##)+$!%+on& /or 3on+n $!ne& !re &(?e$%e* %o &%r+$% &$r(%+n (#on

rev+e.

A )!n*oner &ee"+n %o re3one #ro#er% (&% #rove %e $!ne +& $on&+&%en% +% %e

$o#reen&+ve #)!n !n* $o#)+e& +% !)) #ro$e*(r!) re(+reen%& o/ %e 3on+n or*+n!n$e.

o A% %+& #o+n%, (r*en &+/%& %o ov5% %o &o %e e


14/49

)he people themselves gave the legislature its power. )he legislature delegated this power to the zoning

boards. $ut when the people use a referendum to decide whether to adopt a zoning law& it is nota

delegationinstead& it is the people using the power they already possessed to act for the public interest.

S(?e$%+n 3on+n or*+n!n$e& %o ! re/eren*( *oe& no% v+o)!%e *(e #ro$e&& re(+reen%& o/ %e

U.S. Con&%+%(%+on.

D+&&en%'1enerally applicable zoning ordinances are properly submitted to referendum& but here the proposed

change affects only a single person. 'e want to avoid a tyranny of the majority situation here.

D+&&en%'6etermining whether the zoning of a specific parcel of land should be changed is a *uasi9judicial

action& not a legislative one. 2ere& the referendum addressed what should have been a judicial matter.

8opular vote is not an acceptable method of adjudicating the rights of individual litigants.

%!/)4% says that& &o )on !& %e re&()% +& no% !r+%r!r& then its /+ if the process of arriving there is

arbitrary.

3ssentially& it can never be arbitrary or capricious bIc the original ordinancewas not arbitrary or

capricious. %o& if a referendum rejects a proposed change in favor of what was there before& the result

cannot be arbitrary.

5emember< 5eferendums cannot create new zoning ordinances.

%o this test doesnt protect anyone because there is N/ scenario in which the outcome of a referendum would

be struc" down.

5eferendums get deference because they are deemed to be legislative acts . . . :see the majority opinion;. )he

dissent tries to argue that they are& to the contrary& *uasi9judicial.

$ecause they dont have to consider the comprehensive plan& or ta, revenues& or the overall good of the

community& etc. . . . . they dont have to be rational about what they do.

C+% o/ C(!o! F!))& v. B($"ee Co(n+% o#e Fo(n*!%+on

F!$%&'$uc"eye wanted to build low9income& multifamily housing units on land zoned for apartments. fter thecommission approved it and submitted it to the city council for final approval& voters launched a referendum.

)he voters noted they essentially didnt want blac" people in the neighborhood. )he referendum repealed the

ordinance granting $uc"eye permission to build the housing. 'hen the city refused to issue building permits

during the referendum& $uc"eye sued it by claiming that it violated the due process and e*ual protection clauses

of the 4.%. !onstitution.

I&&(e'6id the city violate either the e*ual protection or due process clauses(

e)*'No& it did not.

)he city was re*uired to deny the permits while the referendum was going on. 0t did not itself act in a

discriminatory manner by denying the permitsalthough the referendum itself may have been racially

motivated& the city itself was re*uired to deny the petition and was not motivated by any racial animus.o 0n other words& the private motives of the voters cannot be attributed to the state.

o Moreover& allowing the referendum supported the #irst mendment by fostering debate over the

ordinance. 5eferendums& thus& are tools of democracy rather than discrimination.o )hus& the city did not violate due process.

ny evidence of racial discrimination should have been used to challenge the re!erendum& notthe

government.

dditionally& the city did not violate due process because it was re*uired by law to withhold the permits

until the referendum had been passed.o Te &(&%!n%+ve re&()% o/ ! re/eren*( $!n e +nv!)+* +/ +% +& !r+%r!r or $!#r+$+o(&.


15/49

o Vo%er& ! *e$+*e o% )e+&)!%+ve !n* !*+n+&%r!%+ve +&&(e& %ro( re/eren*! .

4nder e*ual protection& there must be a discriminatory intent or purpose. 2ere& the discriminatory purpose of

the voters could not be attributed to the state. 0ts ridiculously hard to prove a >Ath mendment 3*ual 8rotection

violation due to the strict level of review

)he mayor here even made racist remar"s about everything . . . but the court refused to accept that his

private opinion was that of the %tate

$asically& the voters here are trying to undo what their elected officials have already done. )heyd already had

the opportunity to participate and influence the legislation %eo&eh). $y allowing the referendum to undo it&

were giving them a second bite at the apple.

)he referendum can be used for both very good and very bad things. 2ere& it was a bad thingit

allowed the racist townsfol" to ma"e an e,clusive decision. 0n other situations& however& it could be used

to prevent bad legislative decisions.

)he problem was that $uc"eye framed the issue poorlyit should have said that the &esult o the &ee&e)um

was bad& not that the problem was the !ity allowing the referendum to begin with.

Notes.

Neighborhood consent ordinances.%ome laws re*uire landowners get permission fromsurroundinglandowners

before being allowed to put their property to certain uses.

'hether its upheld depends on whether the purported use could be considered a n(+&!n$eor not. 0f it

could be a nuisance& re*uiring permission will probably be upheld.

lso depends on whether the ban on a certain use was already there& or whether the neighbors created it.

0n other words& if the neighborhood already banned signs& and a landowner wanted to put up a sign& he

might have to petition for permission. $ut if there was no ban on signs& and he put up a sign& and then

neighbors tried to force him to ta"e it down . . . it wouldnt be upheld.

7. Co)t&"t ) Co)!t!o)l (o)!)/

lthough contract zoning tends to be illegal& despite not being clearly defined . . . conditional use zoning is

often upheld as legal.

D(r!n* v. IDC Be))+n!, LLC

F!$%&'06! wanted to build a power plant in 6urand& so it contacted the -egislature. 0t offered the town QR

million to rezone the chosen locus to an industrial zone. t a town meeting& the townspeople voted to accept the

rezoning. %ome townspeople sued& claiming it was illegal contract zoning and the rezoning should be

invalidated.

I&&(e''as the rezoning illegal contract zoning because 06! offered to pay the town QR million for publicuse(

e)*'No& it was not illegal contract zoning.

'hen voters at a town meeting enact a zoning bylaw& it is both an e,ercise of the police power and a

legislative act.o s a result& it carries a strong presumption of validity and wont be undone unless a

preponderance of the evidence shows that the zoning regulation is arbitrary and unreasonable&

or substantially unrelated to public health& safety& or the general welfare. 0f it is even fairly debatable& it must be sustained


16/49

!ontract zoning occurs when a municipality< :>; promises to rezone a property before the rezone vote

has been ta"enB or :?; promises to rezone on a developers promises to restrict the use of his land and

provide benefits to the town.o 2ere& the townspeople were not bound to accept the rezoning regulation& so it was notcontract

zoning.

I% +& no% +))e!) en ! *eve)o#er o//er& /(n*& /or #()+$ ene/+% !& #!r% o/ $on&+*er!%+on /or

re3on+n en %!% re3on+n o()* !ve o%er+&e een )e!).

o No reason to invalidate a legislative act on the basis of e,traneous consideration because

courts defer to legislative findings and choices without regard to motive.o Te #ro#er /o$(& o/ rev+e o/ ! 3on+n en!$%en% +& e%er +% v+o)!%e& S%!%e )! or

$on&%+%(%+on!) #rov+&+on&, +& !r+%r!r or (nre!&on!)e, or +& &(&%!n%+!)) (nre)!%e* %o %e

#()+$ e!)%, &!/e%, or ener!) e)/!re.

D+&&en%')he town meeting improperly sold its police power by rezoning in e,change for 06!s promise to pay

money. Nothing on record legitimizes the QR million as intended to mitigate the impact of development or to

meet public needs arising out of proposed development.

Notes.

$ommunity bene!its agreements.!$s involve direct negotiations between developers and affectedneighborhoods. )o get a project passed& a developer might offer benefits to the neighborhoods.

+onus or incentive 0oning. )his type of zoning is a sophisticated form of barter& designed to achieve both

developer profit and municipal amenity. !ommunities lower zoning re*uirements and offer economic incentives

to encourage developers to move in and ma"e buildings with public use facilities.

D. VARIANCES

ariances& or variations or special e,ceptions& may alter the use to which property may be put or grant area or

bul" concessions. )hey are meant to prevent unfairness that could result from too strict of a comprehensive

zoning plan. 3.g.& commercial use in a residential zoneB modify setbac" lines or height re*uirements;

)he %73 provides for local zoning boards to authorize variances where it will not be contraryto the

public interesto )hus& doesnt have to be #/5 the public interest . . . just not against it

o Meant to be used where a literal en!orcementof the provisions will result in unnecessary

hardship& and to ensure the spirit of the ordinance is observed and substantial justice done

/ne of the most important and commonly used techni*ues for changing land use regulations

To#!n! A&&o$+!%+on /or ! S$en+$ Co(n+% v. Co(n% o/ Lo& Ane)e&F!$%&')he board granted a variance allowing for a mobile home par" in an area zoned for agricultural uses and

single9family homes.

I&&(e'%hould the variance be upheld(

e)*'No& it should not be.

V!r+!n$e& !re !))oe* on) en, e$!(&e o/ s$e"!l "!&"umst)"es!##)+$!)e %o %e #ro#er%, %e

&%r+$% !##)+$!%+on o/ 3on+n or*+n!n$e& *e#r+ve& &($ #ro#er% o/ #r+v+)ee& en?oe* o%er

#ro#er% +n %e v+$+n+% !n* (n*er +*en%+$!) 3on+n $)!&&+/+$!%+on.


17/49

o )he zoning body must render findings sufficient to enables the parties to determine whether and

on what basis they should see" review . . . and in the event of review& to apprise a reviewing

court of the basis for the boards actions. 2ere& the evidence didnt support the idea that other properties were enjoying privileges

not enjoyed by the parcel in *uestion. )hey needed to actually include data on other

parcels . . . .o 8resupposes the idea that only a small portion of land will be able to *ualify for a variance

A $o(r% (&% *e%er+ne e%er &(&%!n%+!) ev+*en$e &(##or%& %e !*+n+&%r!%+ve !en$+e&

/+n*+n& !n* e%er %e&e /+n*+n& &(##or% %e !en$5& *e$+&+on.

o 5easonable doubts must be decided in favor of the board.

o !ourt needs to protect the rights of nearby landholders to stymy typically forbidden land

developmento 'hereas adopting zoning regulations is legislative& granting variances is *uasi9judicial and

administrative

Notes.

EA v. /opanga. )he %73s variance provision is more general& allowing variances where they will not be

contrary to the public interest and are needed because of special conditions where a literal enforcement ofprovisions will result in unnecessary hardship. Meant to observe the spirit of the ordinance and promote

substantial justice.

0nterpreted by /tto v. %teinhilber to re*uire; land cannot yield a reasonable return if only used for purposes currently allowedB

%ome courts include unnecessary hardshipunder this first prong

o :?; owners plight is due to uni*ue circumstances and not general zone conditions that might

reflect the unreasonableness of the zoning ordinance itselfB and $est typified by topographical difficulties.

o :@; the use of the variance wont alter the essential character of the locality.

#egree o! variance.pplicants are entitled to variances only to the degree re*uired to relieve the particular

hardship.

Practical di!!iculties. Many states authorize variances for unnecessary hardships orpractical difficulties& which

often result in a less stringent test for the latter. 8ractical difficulty often includesLE& first paragraph.

Personal hardships. ariances are not allowed for personal hardships& but only for hardships arising from the

land. $ut this could bend to the #air 2ousing ct or merican with 6isabilities ct . . .

A!ter*the*!act hardship. ou might be able to get a variance for hardship even after the fact& such as after youve

been told to stop building something that was previously disallowed. 1etting this sort of variance is luc"&

though& because self9created hardships are normally not allowed.

$onditional variances.!onditions can be attached to variances& but they must relate to the land and be

reasonable.

E. NONCONFORITIES


18/49

'hen zoning laws are created or amended& previously allowed uses might become disallowed. )o *ualify for

nonconformity status& a use or structure must have been legally commenced or used ab initio.

Many state zoning enabling acts prevent the immediate elimination of these nonconforming buildings or

uses.

C+% o/ Lo& Ane)e& v. G!e

F!$%&'1age bought two plots of land and constructed a building on them. 0n the building& he both ran his

plumbing business and also established his home. t the time& this dual use was permitted. 3ventually& the town

developed a comprehensive zoning plan and passed an ordinance that disallowed such a use. )he ordinance

re*uired 1age to cease using his building for a plumbing office within E years of its enactment.

I&&(e''as setting a timeline for the discontinuance within the !itys police power(

e)*'es& setting a timeline for 1age to cease using his building as a plumbing store was within the !itys

police power.

)he inability to eliminate nonconforming uses is one of the "ey problems facing zoning laws. )o address

this problem& many states allow the amortization of nonconforming uses.o 0n other words& the -egislature determines the normal useful remaining life of the building and

prohibit the owner from continuing the use after its e,pirationo Nonconforming uses endanger the benefits to be gained from a comprehensive zoning plan

3,ercise of police power fre*uently impairs rights in property because the e,ercise of those rights is

detrimental to the public interest.o 5e*uiring a discontinuance is the same as denying the right to add or e,tend buildings devoted to

a nonconforming usethe difference is only one of degree& and the latter is definitely allowed.

)he benefit to the public of eliminating nonconforming uses might be more than losses to the individual

Se%%+n %+e)+ne& /or %e *+&$on%+n(!n$e o/ non$on/or+n (&e& +& +%+n %e #o)+$e #oer.

ou dont necessarily have to allow the amortization scheme to match the actual investment. 0t could simply be

a blan"et time period.

Notes.

Property values. 0t doesnt matter how much property value you lose when they ma"e your land

nonconforming. %ee 2adachec"& :holding rezoning ordinance banning bric"yards was constitutional despite

plaintiffs property falling from QRHH&HHH to QKH&HHH;.

$ontinued se.)he fact that the building in 1age was still suitable as a residence even after terminating the

plumbing business was considered in deciding the case in favor of the government.

$ut the remaining economic life of the building might determine how much time to discontinue the use

is reasonable. 'hile E years was good for 1age& it might not be enough time for someone else. %ee

1ambrell 8laning Mill& :holding E years was insufficient for building with remaining economic life of?H years;.

Amorti0ation provision. lthough most courts uphold them& 8ennsylvania has declared them facially

unconstitutional as an unauthorized ta"ing under the state constitution.

No repairs.Most ordinance provide that nonconforming structures cannot be repaired or enlarged so as to

e,tend their lives.

8ennsylvania for the win& though< 0n 8& the natural e,pansion of nonconforming uses is

constitutionally protected.


19/49

Many ordinances also provide the nonconforming structures which are partially destroyedsuch as by

firemay not be reconstructed e,cept as allowed by the now9e,isting zoning regulations.

No continuing. nonconforming use that has been discontinued cannot be recommenced. $ut temporary

cessation is li"ely not fatal.

ignage./wners of billboards and other signs either get compensation under the #ederal 2ighway

$eautification ct or get automatic amortization of their signages useful lives.

F. VESTEDRIGTS

'hen governments announce zoning changes& developers will rush to start a project so as to ac*uire vested

rights to complete or maintain it.

Av$o Co(n+% Deve)o#er&, In$. v. So(% Co!&% Re+on!) Co5n

F!$%&' local ordinance re*uired developers to obtain building permits from the !oastal !ommittee to build

after #eb. >& >LD@& unless they received a permit and completed substantial wor" on the building through a

vested right. 0n >LD>& the 6eveloper had obtained a rough grading permit to create a residential development.

0t then incurred e,penses in getting the proper land studies done and constructing storm drains& culverts& streetimprovements& and the li"e. -egally& a permit to build could not be obtained until the grading was completed. 0t

had not completed all of the grading before #eb. >& >LD@& nor had it submitted any plans for buildings.

I&&(e'6id the 6eveloper have a vested right to build(

e)*'No& it did not.

I/ ! #ro#er% oner !& #er/ore* &(&%!n%+!) or" !n* +n$(rre* &(&%!n%+!) )+!+)+%+e& +n oo*

/!+% re)+!n$e u$o) %u!l!)/ $e&m!t !ssue %e overnen%, e !$(+re& ! ve&%e* r+% %o

$o#)e%e $on&%r($%+on +n !$$or*!n$e +% %e %er& o/ %e #er+%even +/ 3on+n )!& $!ne.o 2ere& although the 6eveloper had a rough grading permit& it did not have a building permit.

Moreover& the government did not even have plans given to it to show what sorts of buildings

would be built there& let alone their specifications. 6eveloper couldnt have a vested right to build structures that the county didnt approve

and didnt have any detailed information about

llowing a vested right because subdivision improvements too" place or the land was zoned in a

specific way before would arrest the governments ability to plan land use because such improvements

or zonings could sit untouched for years.

3ssentially& the developer here wanted a vested right because it would allow him to be e,empt from later9

enacted zoning. %o& even if zoning laws changed because of the !oastal !ommission& it would be able to build a

nonconforming structure anyway. )hats the whole point of this casevco wanted to escape needing to get a

permit from the !oastal !ommission because it& li"ely correctly& assumed it would not get a permit from the!ommission.

vcos first argument is that it had the e2uivalentof a building permit because it had already done

everything the government re*uired before allowing a building permitit had hit all the prere*uisites

and& if it had wal"ed in and as"ed for a permit& the government would have been re2uiredto do issue a

permit.o !ourt rejects this argument because the government did not have anyidea of what the buildings

will entailin other words& the governmentstill neededto approve the types of buildings for a

building permit to be issued. )hus& because it might have been denied should the buildings not be


20/49

conforming& then there was still discretion as to whether the government should issue a permit

and vco did nothave the e*uivalent of a permit.

0n this case& vco was losing QD&HHH a dayit had already spent Q? million on the infrastructure& and was just

falling deeper and deeper into the whole. 0t had been in contact with the government through the entire way&

getting information on what it needed to do before it could apply for the building permiti.e.& the

infrastructure.

)he 3on+n e&%o##e) !r(en%the e*uity argumentwas that vco relied& to its detriment& on the

government. 0t also argued that it had an e*uitable vested right.o 3*uitable arguments depend a lot on the factual piecesjust how much did the developer rely on

the governments indications(

!oncerns

8rotect reliance

5estrict local governmental power

8romote fle,ibility

8revent races between developers and zoning amendments

3ncourage multi9phase& comple, development

Notes.

Late vesting rule. !alifornia follows the late vesting rule< a developers rights have not vested until a valid

building permit has issued. dditionally& the developer must show substantial reliance to its detriment on the

final approval.

Final discretionary approval.0f a zoning ordinance becomes subject to a referendum for approval& then any

permit issued after the petition for a referendum has been certified does notcreate a vested right.

0f a permit is challenged in court& a developer should wait until its settled to build. lthough he may

lose money on the deal& he proceeds at his own ris". 3ssentially& the builder should be on notice at this point that the building might get stopped. s a result&

the building permit did not really vest a right to build at that point.o $ut say there was no zoning referendum or anything of the li"e . . . then the developer will have

a vested right& because there was no indication that there was any resistance.

/r say that he gets the permit& but doesnt build for E years . . . 5emember< Most permits have a limited

life to prevent this sort of situation.

Estoppel. 'hen determining whether an estoppel is appropriate& focus on the municipalitys conduct and the

degree and nature of the landowners reliance on that conduct. 3stoppel is an e*uitable right& meaning clean

hands are re*uiredthus& what the landowner "new at the time is important. %imply having used the property in a way that violates zoning laws for a long time without being

punished doesnt mean youll get to use estoppel when the government finally tries to shut you down.

court will preclude a municipality from changing its regulations as they apply to a particular parcel of land

when a property owner in good faith& upon some act or omission of the government& has made such a substantial

change in position or has incurred such e,tensive obligations and e,penses that it would be highly ine*uitable

and unjust to destroy the right he ac*uired.

%o four prongs< :>; governmental actionB :?; substantial e,pendituresB :@; good faithB and :A; a balancing

of public and private interests.


21/49

)hese factors can be used in a vesting rights scenario& too.

4overnmental action. )here must be a valid building permit or its e*uivalentfor e,ample& if a county

approves a traffic study& sanitary sewer line plan& drainage plan& and subdivision map& the issuance of a building

permit is probably just ministerial. 0n that case& even without the specific building permit& the 6eveloper

would have a vested right.

ubstantial E)penditures.$ecause it must be made in good faith reliance on a governments actions& the mere

purchase of land is rarely sufficient to create a vested right.

Neither is money spent on architectural plans& engineering& economic feasibility studies& or planning

because they are not made in reliance on a governments actions.

4sually& only post9application actions are given the benefit of the doubt as being in reliance.

o %ome states have a strict test re*uiring a substantial change be made in the land itself.

In good !aith.6epends upon reasonableness in the development industry.

4sually& developer cant actually +N/' of a proposed ordinance to be found to have had good faith

)he government must also have good faithit cant willfully withhold a permit by deceptive conduct. 4sually&

the developer must show; a false representation of material factB

:?; that the party asserting the estoppel did not "now or could not discover the truthB

:@; the false representation was made with the intent that it be relied uponB and

:A; the person to whom the false representation was made relied and acted upon it to his prejudice.

5uasi*estoppel. 'here the government changes its legal position during the processing of an application for

development approval& there is no need to show detrimental reliance. twood v. %mith.

+alancing public and private interests.!onsider the following factors< :>; e,isting uses and zoning of nearby

propertiesB :?; e,tent to which the desired nonconformity will diminish property valuesB :@; e,tent to which

destruction of plaintiffs property value promotes the public health& safety& morals& or general welfareB :A;

relative gain to the public compared to hardship imposed on property ownerB :E; suitability of the property for

zoned purposesB and :K; the length of time the property has been vacant under present zoning.

Pa. Law. 'hen a land use plan has been approved in 8ennsylvania& no subse*uent changes or amendments

shall be applied to adversely affect the right of the applicant to commence and complete the project.

/ther states& as well& have the general rule that rights vest at the time the developer applies for a permit

G. DEVELOPENTAGREEENTS

6evelopment agreements attempt to meet halfway between the governments need for public facilities and

developers vested rights.

%33!-0#/5N0633-/8M3N)1533M3N)%))4)3/N813???

Cene v. V+))!e 2 !% Ne o#e, In$.

F!$%&'6eveloper wanted to build a 8lanned 4nit 6evelopment :846; in New 2ope. )he -egislature enacted

ordinances to create the 846 and rezone the land& while the planning commission issued building permits to the


22/49

6eveloper. )he surrounding landowners appealed. )he court of common pleas reversed for the

ordinancesIpermits failure to follow a comprehensive plan& but the 6eveloper appealed.

I&&(e'6id the board commit an abuse of discretion or error of law by enacting the ordinances and issuing the

permits(

e)*'No& it did not.

9on+n )!& &e%e $o#reen&+ve #)!n %(&, !n %+e %e !re !en*e*, %e #)!n $!ne&, &o

%e $!n5% e +nv!)+*!%e* on %e ro(n* o/ no% e+n +n !$$or*!n$e +% %e $o#reen&+ve #)!n.

)he zoning board did not abuse its discretion because the 846 was carefully considered by the

legislature and did not really vary from surrounding land usesit was really a mini9residential pac"ed

within a larger residential.o dditionally& there was no floating zone because it was made under a comprehensive plan.

o 9on+n $!ne& !*e on re(e&% ! )!n*oner !re no% +nv!)+* +/ !*e +n !$$or*!n$e

+% ! $o#reen&+ve #)!n.

)he 846 here was particularly open to challenge because& > year before the 846 was created& New 2ope had

gone through a comprehensive planning process. )he area here had already been designated only to include

single9family homes of low density.

)here were four separate grounds the neighbors challenged the 846; floating zonesfound in the te,t& but not in the map. %omeone applies to put that zone in a particular

place& but the township can ultimately decide where to put it.o Many jurisdictions really li"e floating zones because it offers a lot of fle,ibility. 8a. courts had

already condemned floating zones& though& because they were too uncertain and zoning would

be too ad hoc. !ourt was forced to distinguish the floating zone here from the floating zone condemned

in 3aves. $ut the distinction offered was N/) persuasive at all because 335 floating

zone will be put on the map somewhere . . . but the preordained uncertainty remains

anyway until its actually put down. :?; spot zone

o !ourt finds the comprehensive plan is imminent in the zoning itself. 0n other words& the plan is

the 0oning. )hus& the plan can be changed by simply enacting new zoning ordinances& so long as

they are enacted with sensitivity to the community. T(&, no% e+n +n !$$or*!n$e +% ! $o#reen&+ve #)!n $!n5% e ! re!&on /or

+nv!)+*!%+n o% 3on+n, !% )e!&% +n Penn&)v!n+! !n* &oe o%er &%!%e&.

:@; authority to zone846s e,ceed the authority under state zoning enabling acts

o 5emember& all zoning powers are delegatedbecause they dont have the power /4)%063 the

state giving a municipality power. )hus& New 2opes power to zone comes from the state of

8ennsylvania.o )he neighbors argued that the power to create 846s was the antithesis to 3uclidean zoning

thus& 8 would neverdelegate to New 2ope the power to create a 846 at allo )his objection has been eliminated in essentially every jurisdiction where its been raised.

Nothing prohibited the creation of a zoning district withso many permissible uses. /ne

zone was allowedto include a diverse range of permissible uses

:A; administration issues

o 2ere& the court places fle,ibility as an important factor in allowing the 846.

o $asically& the ruling here is an invitation to contract zone . . . which is illegal.


23/49

%tatute has been enacted to cover the gaps of how !heneys holding would be effectuated.

CAPTER' LIITSONLANDUSECONTROLSB. DIRECTCONDENATION' EINENTDOAINANDPUBLICUSE

1. I)t&ou"t!o)

8rivate property shall not be ta"en for public use without just compensation. E)2M3N6M3N).

Meant to protect against a minority of people bearing burdens that should be borne by the entire public 2istorically& only physical invasions were compensable. 0t evolved& however& to include non9trespassory

ta"ings& too.o Non9trespassory ta"ings include regulatory measures that impose public loss andgovernmental

conduct that deprives a landowner of a legally actionable right. 8hysical trespass and deprivation usually results in the court finding a ta"ing

8urely economic harm does not usually result in the finding of a ta"ing

2. Pu%l!" *se

condemnation that results in some public benefit is also a justified ta"ing.

Ke)o v. C+% o/ Ne Lon*on

F!$%&'New -ondon was economically distressed. )o combat its economic problems& the city proposed a plan

that was projected to create more than >HHH jobs& increase ta, revenues& create leisure and recreational

opportunities& and revitalize the economically distressed city. lthough some landowners were willing to

sell& many more were not. 0n particular& the city wanted to ta"e -andowners home and numerous other

investment properties& which happened to fall in the proposed development area on the waterfront.

I&&(e''as the citys proposed use of eminent domain within the meaning of public use under the #ifth

mendment(

e)*' $ecause the ta"ings here serve a public purpose by facilitating economic development& they satisfy the

public use re*uirement of the #ifth mendment.

8fizer was planning to open a location in the city& so the plan was meant to capitalize on this newcomerto attract even more new business.

/rdinarily& the government is forbidden from ta"ing property just to give it to another private party.

)a"ings must serve a public purpose rather than simply being used by the publicits a much

broader& easier9to9satisfy test. I% *e#en*& on) on %e %!"+n5& #(r#o&e, !n* no% +%& e//e$%o !ommunity redevelopment programs must be considered on the wholeso even if one

persons home if fine& if the entire area is blighted& its justifiedo $rea"ing up a landowning monopoly is a public purpose under 2awaii 2ousing.

Must defer to legislatures determination that city needed economic rejuvenation program

o I% *oe&n5% !%%er %!% %e %!"+n $on/er& ! *+re$% e$ono+$ ene/+% on !no%er #r+v!%e #!r%

&o )on !& %e$u&$ose!& ! #()+$ #(r#o&e Te &o(%-!/%er 6#()+$ #(r#o&e7 *oe& no% !$%(!)) !ve %o e #rove* %o o$$(r e/ore %e %!"+n

+)) e !))oe*. /therwise& it would ta"e forever to accomplish anything. 0t all comes bac" to deference

to the -egislature when it decides the specifications of the plan for what the !ity needs

S%!%e& ! en!$% /(r%er re&%r+$%+on& on %e %!"+n& #oer.0ts just that the federal constitution

doesnt enact much more of a restriction on it.

Con$(rren$e' ny time a ta"ing seems to benefit a particular private party& with only the prete,t of public

purpose& the court should stri"e it down. 2ere& evidence showed that the governmentspurposewas notto help

another private party& or even 8fizer.


24/49

lthough a higher standard of review might be re*uired for particular ta"ings& its not justified here for

onlythe fact that the public purpose was economic development.

D+&&en%'0n cases allowing this sort of ta"ing& the property ta"en was affecting an actual social harm :li"e

povertyIblight;. 3ssentially& the only effective limitation on public ta"ings left is that the property be somehow

upgradedmeaning& it will li"ely be given to the already rich.

4nder !onnecticuts general statutes O R9>RK& ta"ings for a plan of economic development isa public purpose

Mid"iff doesnt re*uire the public actually use itjust as here& the property wouldnt actually be used

by the public at large.o -arger public purpose allowed #allbroo" 0rrigation 6ist.

$erman already upheld ta"ings to redevelop a blighted areahere& we had a city suffering similar

economic problems

Mid"iff already uphdeld ta"ing land simply to destroy a landowning monopoly

o BUT ERE, IT SEES TO AVE CREATED IT AGAIN B: PUTTING IT INTO TE

ANDS OF TE DEVELOPER

2ere& we are simply brea"ing up land ownership to serve economic redevelop of a blighted areaall of which

has been done before as a legal Eth mendment ta"ing

0t doesnt matter that the +elos land itself was not part of the economically blighted area because it was

part of a comprehensive plan of economic redevelopment& which has already been done before in

$ermano $erman even upheld ta"ing from one person to give to another if it was incidental to this

comprehensive plan

#urthermore& the city doesnt even need to show that the supposed benefits will actually accrue because&

again& precedent. 0n -ingle v. !hevron& the court decided that even re*uiring a ta"ing to substantially

advance a public purpose was just as"ing far too much.

)he public use re*uirement is meant to be a limit on government powereven with just compensation& thegovernment is allowed to ta"e land only i!it is for public use.

1overnment may never ta"e private land from one owner just to give it to another for no reason.

8ublic use doesnt mean use by the public. 0t means for a public purpose.

)he court allowed the ta"ings here because the city had a carefully formulated& comprehensive economic

redevelopment plan.

So %e $o(r% *e$+*e& e%er %e %!"+n& ere $on&%+%(%+on!) !&e* (#on #hethe& the $l) &!%+&/+e*

! #()+$ #(r#o&e. No% %e e


25/49

Notes.

$ompensation. 'e should ma"e eminent domains more costly to prevent them& basing them on more than just

the #M of the landIproperty.

C. INVERSECONDENATION

2. Re/ulto&' Im$"ts s T8!)/s

@! To%!) De#r+v!%+on& o/ U&e !& T!"+n&

-ucas came about in the shadow of the too far testi.e.& that government will only be held accountable for

ta"ings when it goes too far.

L($!& v. So(% C!ro)+n! Co!&%!) Co(n$+)

F!$%&' -andowner bought two beachfront plots of land& intending to build a home on them. t the time& the land

was not subject to any restrictions. $efore he began building& however& %outh !arolina enacted the $eachfront

Management ct& which prohibited him from building a permanent structure on the plots. )he ct rendered the

plots valueless& and -andowner sued for just compensation.

I&&(e' 6id the cts effect on the economic value of the -andowners plots constitute a ta"ing under the #ifth

mendment(e)*'es& it constituted a ta"ing and -andowner should be justly compensated.

Te on) ! %e overnen% ! #ro&$r+e lle$ono+$!)) ene/+$+!) (&e& o/ )!n* +%o(%

#rov+*+n $o#en&!%+on +& !&+n +%& #ro++%+on& +n n(+&!n$e )!.

o 3,ception< %tate may use the police power to curb harmful or no,ious uses that diminish the

economic value of land without providing compensation.B(% $)!++n &oe%+n +& ! 6no


26/49

0f the lands value is not completely diminished& then youd use the 8enn !entral test. ou just wouldnt get the

benefit of -ucass per se test.

%ometimes& non9use is a form of economic usemaintaining a view can have tons of economic value. )hus&

-ucas might not provide that much protection for landowners.

0t really ends up being a subjective *uestion. $asically& any sort of economic value can do.

L($!& +& #re%% ($ ! oo% #o+n% =$ %ere +)) !)!& e &oe &or% o/ e$ono+$ v!)(e, e%er

/ro (&e or non-(&e

o 3ven if cases werein the -ucas categoryin which theyre unli"ely to bethere is still an

e,ception for them. I/ %e &%!%e (&e& +%& #o)+$e #oer %o !n ! (&e %!% #oul he l&e'

%ee) %))e(n*er n(+&!n$e )!, %en +%5& )ot! %!"+n #er &e.

Notes.

/otal ta1ings. )he rule of -ucas only applies to total ta"ings& where the landowner is deprived of all

economically beneficial use of the totality of the land.

%ome courts have analyzed -ucass total loss of use as incorporating all three of 8enn !entrals factors; economic lossB :?; loss of investment bac"ed e,pectationsB and :@; the character of the governmental

action.

5etaining recreational value might mean an owner is not deprived of alleconomically beneficial use

or value.

7alue and use.)he -ucas test re*uires an obliteration of both value and use. 0t must be prohibited to use the

land& and this prohibition must destroy the #M of the land. )ahoe9%ierra 8reservation !ouncil& 0nc.

Public harm. )here is no right to land when the alteration would lead to a public harm. ust v. Marinette

!ounty.

Law o! $ustom.)he law of custom has also emerged as bac"ground principle e,ception to the -ucas per se rule. 3.g.& if the citizens of a state have a customary right to use all the dry9sand areas of a beach& it might

defeat a developers right to build in that location.

$ut statutes probably cant act as bac"ground principles of law . . .

@ P!r%+!) De#r+v!%+on& o/ E$ono+$ U&e !& T!"+n

Penn Cen%r!) Tr!n&. Co. v. C+% o/ Ne :or"most ta"ings cases fall under 8enn !entral

F!$%&'N! adopted a law to preserve historic landmar"s& claiming it would bolster tourism& community spirit&

and the local economy. 4nder the law& an owner of a designated landmar" was re*uired to "eep the building in

good repair and to see" approval before altering an architectural features or constructing improvements on the

e,terior. ny unused property rights& however& could be transferred from the owner of one parcel to the ownerof another.

8enn !entral entered into a contract allowing a developer to build an office building over top of it. 'hen

they applied for permission& the !ity denied a permit and reasoned that it might ruin the view of the station from

a nearby street. /therwise& the use of the )erminal was in no way impaired at all.

I&&(e'6id the !ity effect a ta"ing(

e)*'No& it did not effect a ta"ing.

s with all ta"ings cases& the court refuses to follow a formula to decideB instead& it focuses on the facts

and circumstances.

2ere& N!s law was part of a comprehensive plan to preserve structures of historic or aesthetic interest


27/49

o )hat the economic burden of the law might weigh more heavily on some owners than others does

not invalidate the law.

)he court defers to the -egislatures view that preserving historical landmar"s benefits everyone&

including the owners of the )erminal.

A )! +& no% +nv!)+* &+#) e$!(&e +% *oe& no% #rov+*e ?(&% $o#en&!%+on /or re&%r+$%+n ! #ro#er%

%o ! re!%er e; investment9bac"ed e,pectations of the landownerB :?;

the character of the govt actionB and :@; the economic impact.

)he court claims that precedent shows these @ things are consistently evaluated in ta"ings claims.

Te !)!n$+n %e&% +& !&+$!)) non/(n$%+on!).

'here were not in full -ucas or -oretto& we usually wind up in the 8enn !entral test.

5egarding 8enn !entral& we affirmatively dont want a fi,ed formula bIc we want to be fle,ible to meet

new situations and uni*ue circumstances. )hus& it favors fle,ibility over predictability.

@1 e$ono+$ +#!$%

2ard to do this in any conte,t& especially here. 9e o):t ee) 8)o# #ht #e:&e mesu&!)/ the

e"o)om!" !m$"t o.>e ?(&% *on5% "no !% +% e!n&.o )hus& we dont what to reduce the economic impact by :i.e.& what& if anything& do we reduce by

the transferability of building rights here(;

)he transferability of the building rights lessened the economic impact

6o we loo" at the economic impact on the total wealth of the landowner( /r just on that particular lot(

o i.e.& if 8enn !entral were less wealthy& would it matter to the analysis(

'e cant credit as a benefit to 8enn !entral the ancillary benefits that other property owners get. ust

compensation is meant to prevent one landowner from bearing the burdens the public should bear.

@2 *+&%+n$%, +nve&%en% !$"e* e


28/49

@ $!r!$%er o/ ov5% !$%+on

)o single out > landowner . . . or even AHH . . . is still singling out landowners for burdens the public should

bear. 8enn !entral should not be used to force single landowners to bear the publics costs. )here might be an

argument for it& but 8enn !entral is not it bIc its still a selective burden.

)here is still an ambiguity after 8enn !entralwhat is the value we are loo"ing at( )he property affected& or

the property as a whole(

!ourt has become slightly clearer& indicating that we shouldnt focus on whats gone v. whats left

$ut we still dont "now whether to focus on whether we should loo" at what we can6tuse& or if we

should loo" at whats left& or whether we should loo" at the property over its entire useful life.

@$ Re()!%or T!"+n& +n %e 21&% Cen%(r

L+n)e v. Cevron U.S.A. In$.

F!$%&'2awaii enacted rent caps on what an oil company could charge tenants leasing their service stations.

!hevron claimed this act was a ta"ing.

I&&(e'Must a regulation that effects a ta"ing substantially advance a legitimate state interest to be valid(

e)*'No. )he legitimate state interest re*uirement is based in due process law& not ta"ings. )wo "inds ofper seta"ings< :>; permanent physical invasion of property. -oretto. :?; when the owner is

deprived of all economically beneficial uses. -ucas.o /utside of these two narrow circumstances& 8enn !entral governs ta"ings. 8enn !entral analysis

focuses upon the regulations economic impact and the degree to which it interferes with

legitimate property interests.

)he substantially advances formula should not be used because it doesnt say anything about the

magnitude or character of a burden imposed on property rights.o )hus& it doesnt help identify regulations whose effects are functionally comparable to

government appropriation or invasion of property

I/ ! overnen% !$%+on +& /o(n* %o e +#er+&&+)e8+.e., /!+)& %o ee% %e 6#()+$ (&e7re(+reen% or +& &o !r+%r!r !& %o v+o)!%e *(e #ro$e&&8no !o(n% o/ $o#en&!%+on $!n

!(%or+3e +%.

2ere& !hevron is able to recoup its profits by raising wholesale gas prices.

Te 6&(&%!n%+!)) !*v!n$e&7 /or()! +& no% ! v!)+* e%o* o/ +*en%+/+n re()!%or %!"+n& /or

+$ %e % Aen*en% re(+re& ?(&% $o#en&!%+on.

o $Ic we dont want a conflict bIw having to uphold cases under due process for substantially

advancing a govt interest& while at the same time being re*uired to invalidate the same law

under ta"ings jurisprudence

Notes./ypes o! compensable ta1ings.-ingle discusses four types. )he first two are per se< :>; permanent physical

occupation under -orettoB and :?; a deprivation of all economically beneficial use under -ucas. )he second two

are< :@; 8enn !entral ad hoc claimB and :A; -and use e,action under Nollan I 6olan

-ucas and 8enn !entral focus on economic impact

4nder Nollan I 6olan& if a landowner can ma"e a prima facie case establishing a ta"ing by permanent

physical establishment under -oretto& then the %tate must meet a heightened scrutiny under the Nollan I

6olan testo %o Nollan I 6olan might be more accurately deemed a subset of -oretto


29/49

8enn !entral has emerged as the dominant test& its still ad hoc. 4se 8enn !entral when there is value remaining

in the propertynot -ucas.

-awyers tend to argue about what test applies& rather than the merits of the claim.

6ue 8rocess in -ingle

$asically& the court too" substantive due process out of the picture. %o the gas companies decided to challenge it

as a ta"ing.

)he court ma"es clear they never had a substantially advances re*uirement for due process& and

ma"ing even more clear that they dont intend to apply it to ta"ings

fter -ingle& we still have case9by9case analyses bIc we dont want a set9in9stone rule.

'hats really different about -ingle and +elost !entury -and 6evelopment !ode

$%0!--& 4%))-+%$/4))2320%)/5/#%4$600%0/N5314-)0/N%. :8. AKETKL;

D. TEPLANNINGCONTE;TFORSUBDIVISIONREGULATION


30/49

1. Autho&!t' to E;e&"!se Su%!!s!o) Co)t&ols

)he planning commission regulates subdivision approvals using the %83& which gives the commission

responsibility for adopting a comprehensive plan.

3very subdivision constitutes an amendment to the comprehensive plan because it lays out new streets

and other capital improvements& which are essential functions of the planning process.

%83 O >?< 8lanning commission has jurisdiction over subdivision of all land in the municipality and within E

miles of its borders.

O >@< fter a comprehensive plan has been adopted under its subdivision jurisdiction& no subdivision can

be recorded unless approved by the commission.

O >A< $efore being allowed to approveIdisapprove subdivisions& the commission must adopt regulations

governing the subdivision of land.o i.e.& proper arrangement of streets& etc.

2. Pl))!)/ Co)te;t

8lanning is important for the public health.

Notes.

#illon6s -ule. 6illons 5ule is the traditional rule governing local regulatory authority. 0t provides that local

governments possess only the powers e,pressly delegated to them by the state legislature or those powers that

are necessarily implied in the e,press power.

i.e.& once the developer has proven compliance with the design and improvement standards of the

subdivision regulations& the planning commission has no administrative discretion to deny the plat.

bility to supersede state legislation e,ists only where the local authority is acting more strictly than t

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