Zoning

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					Property II - Outline

Zoning
o o o o Nuisance law did not prevent nuisances from arising o Merely gave damages or an injunction after the fact o zoning is nuisance law made predictable Theory designed to prevent harmful effects being visited upon neighbors o prevent one land owner from harming his neighbor by bringing in an incompatible use Zoning essential to healthy housing, with light and air maximizes property value and public benefits

Examples/Notes

Separation Of Uses o classified uses and several types and assigned them to zones o separation of conflicting uses o highest use the lowest use o highest use: least harmful to others o lowest use: most harmful o separation of uses and to defend districts is called “Euclidean zoning” Cumulative Uses o higher but not lower uses are permitted in any district o in certain situations, ordinance may not be cumulative and may exclude higher uses o to preserve large tracts for future industrial use density control o height limitations, setback requirements, minimum lot and house sizes Constitutional limitations o Zoning laws enjoy a presumption of validity o must not violate the Constitution o constitutional requirements must be met with respect to each individual lot o might be valid in general o but invalid as applied to a particular lot

Ex: forbid residential or commercial use in an industrial park district

The ordinance finds its justification in some aspect of police power asserted for the public welfare. A court will not grant an injunction upon the broad grounds of the mere existence and threatened enforcement of the ordinance. o Enforcement might be based upon o present infringement D:\Docstoc\Working\pdf\8f0a1cbd-7756-4a8b-abb6-7148fd529238.doc Ex (Euclid): city ordinance reduces ∏’s land value (can no longer be used for industrial purposes). He did not complain of any specific injury (did not seek a permit or appeal to board of appeals). Injunction not granted. Page 1 of 8

Property II - Outline o o denial of a specific right for specific injury Zoning ordinances are routinely upheld in the face of taking the obligations. Zoning in general has been found to be constitutional, but concrete applications of specific provisions could prove to be arbitrary and unreasonable.

If a specific complaint is not made, it can not be said that the land owner had suffered or is threatened with an injury which entitles him to challenge the constitutionality of zoning ordinance. Enabling Legislation o Zoning is an exercise of police power delegated to local governments o Standard State Zoning Enabling Act (Standard Act) o to enact a zoning ordinance a city must create  a planning (or zoning) commission  a board of adjustments (for zoning appeals)  Grants Variances: when restrictions cause O practical difficulty or unnecessary hardship  Grants Special Exceptions: when specific requirements set forth in the zoning ordinance are met. o the zoning ordinance must be enacted by the city Council Comprehensive Plan o zoning regulations shall be “in accordance with a comprehensive plan” o a statement of the local gov’s objectives and standards for development o Max, charts, descriptive text o even when there exists, zoning regulations inconsistent with it are not necessarily invalid Changes o the right to maintain a nonconforming use runs with the land o it survives a change of ownership o some courts allow: o nonconforming uses may expand o change to another nonconforming use o destruction of a nonconforming use usually terminates it o abandonment also terminates to use o if discontinued for a period of time, say 2 yrs. Vested Rights o pre-existing operation is protected o plans to engage in some particular use are insufficient o proposed use might be protected, if sufficient commitment has been made  plans drawn. D:\Docstoc\Working\pdf\8f0a1cbd-7756-4a8b-abb6-7148fd529238.doc

Ex: ordinance specifies that a nursery school is OK in residential area if adequate off-street parking is provided, no more than 30 students are enrolled, and play space is fenced.

Only half of the states require comprehensive plans

So long as they are considered reasonable and in the public interest.

Usually only if the change reduces the impact of the use on the zone in question

How far has the developer gone to any governmental approvals? How much money Page 2 of 8

Property II - Outline  Permits obtained.  Sites prepared.  Construction begun Estoppel: developer reasonably relies to his detriment on the issuance of a permit and proceed to make substantial expenditures o mistaken order only is issuance of a permit to does not estop them in his ability from correcting errors variances special exceptions has been invested in good faith? What is the money been spent on

o

Non Ex: Department of building erroneously interpreted the zoning map and issued a permit. 8 months later, the department revoked the building permit. Had to tear down top 12 floor of building at a cost of $1Mil.

Achieving Flexibility In Zoning
o o so long as in harmony with the general purpose and intent of the ordinance.

Variance variance must be granted where • undue hardship  no effective use can be made of the property in the event the variance is denied  owner is not entitled to have his property zoned for its most profitable use  When the regulation renders the property unusable for any purpose, the analysis calls for further inquiries which may lead to a conclusion that the property owner would suffer an undue hardship  Look into whether  the hardship must not be self-imposed  owner attempted to bring the lot into compliance or end the unusability • negative criteria satisfied  The variance cannot be issued if it would  Be contrary to the public interest  Impinge upon the intent and purpose of the zone plan  o o o If the denial of the variance will zone the property into inutility, an exercise of eminent domain will be called for and compensation must be paid. There must a statement of specific findings of fact on which the Board reached its conclusions. Determining Price: on the assumption that the variance has been granted” so that a home can be constructed Size by itself would not justify denial. No health or safety goals o If character of neighborhood affected (aesthetics and value), denial may be appropriate.

If Ex: ordinance requires 20 ft setback. Land too shallow and can not be set back 20 ft. Shallowness existed before ordinance enacted. Proper to grant Variance. o If shallowness created after enactment, no Variance.

Ex: Did O convey away a portion of lot leaving herself with a nonconforming lot? Ex: Did O offer to buy additional properties from the neighbors? Did O offer to sell some of the land (or all of the land) to the neighbors. Must not result in substantial that led to the public health, safety, welfare. Must not a substantial departure from the comprehensive plan.

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Property II - Outline o Board Conditions: o Board may grant Variance and impose conditions on use  Conditions must be reasonable  Must relate to use  Aimed at minimizing impact on surrounding area existing violations can not be made a basis for further violations Hardship does not include personal infirmity. Area v. Use Variance o BoP is greater for use variance than for area variance o Criteria:  land can learn reasonable return without variance.  Owners plight results from unique circumstances and not general neighborhood change in your line granting of variance will not alter the character of the neighborhood  Use:  no additional burden on government services

o o o

General area hardships would require change to zoning ordinance itself.

Special Exceptions o Certain uses can coexist with neighbors when specific conditions occur o the board is in power to determine whether the conditions specified in the ordinance are met o legislative power cannot be delegated to an administrative agency unless the standards are sufficiently clear to prevent gross arbitrariness. o A zoning of ordinance cannot give the board discretionary authority to approve or disapprove applications for permits as the board thinks best serves the public interest without establishing standards to limit and guide the board. • No discretion; just check whether conditions are met or not • Whether a use will generally comply with the health, safety, and welfare of the public and the essential character of an area is a legislative question. A delegation is improper if a zoning board is permitted to decide that same legislative question anew, without specific guidelines which permit a board to determine what unique or distinctive characteristics of a particular apartment building will render it detrimental or injurious to a neighborhood.

Board delegation of power breeds selectivity in enforcement of the law.

The general purposes in view (health, safety, general welfare of the community) have been held to be a sufficient safeguard to control the board's discretion provided the board gives reasons for its action

•

Spot zoning o improper permission to use an island of land for a more intensive use D:\Docstoc\Working\pdf\8f0a1cbd-7756-4a8b-abb6-7148fd529238.doc

Variances and special exceptions are sometimes invalidated by a reference to this. Page 4 of 8

Property II - Outline o then permitted on adjacent properties some or all factors are present o small parcel of land is singled out for special and privileged treatment o the singling out is not in the public interest  only for benefit of land owner o the action is not in accord with a comprehensive plan

Preferential treatment of certain land owners

Conditional rezoning o Owner agrees unilaterally to use the land in specified manner. Contract rezoning o refers to a bilateral agreement between the owner and the zoning authority o O agreeing to restrict the use of the property in exchange for the authority’s promise to rezone. Floating zones o a way to deal with the rigidities off Euclidean zoning o a floating zone achieves flexibility by defining a zone, but reserving the decision about its location for the future o the zone is brought to earth through a zoning amendment Cluster zones and PUDs (planned unit development) o developer is permitted to construct dwellings in a pattern not in literal compliance with the area restrictions of the zoning ordinance o President says relieved from observing the usual frontage or setback regulations and side or rear-yard requirements o PUD: mix of residential, commercial, sometimes even industrial uses

Might be seen to involve unlawful delegation of legislative authority The conditions imposed must pass muster as reasonable, or having a rational basis

The central idea is to provide some of the amenities of girl environment in an otherwise or been sitting

Aesthetics regulation
o o Majority: accept aesthetics as a legitimate police power goal in itself Some: rely instead on protection of property values o what appears to be an aesthetically aimed regulation is often upheld because it “protects property values” o The aesthetic factor to be taken into account by the board is not to be considered alone. o Along with that factor is the effect that the proposed residence would have upon the property values in the area Ex: ∏ wanted to build an ultramodern, grotesque house in a traditional neighborhood. There was testimony that house would decrease property values and hurt tax base. Not allowed to build.

Aesthetic considerations are a matter of general welfare. o He of the fashionable residence neighborhood is for the D:\Docstoc\Working\pdf\8f0a1cbd-7756-4a8b-abb6-7148fd529238.doc Page 5 of 8

Property II - Outline o comfort and happiness of the residents it sustains the value of property in the neighborhood

o The Board shall disapprove the application if it determines the
proposed structure would constitute an unsightly, grotesque or unsuitable structure in appearance, detrimental to the welfare of surrounding property residents

Amortization
o o “non conforming use must terminate after a specified period of time” o Amortization period may depend on amount of investment Majority: Amortization is valid o Ordinance must be reasonable as applied to each nonconforming use  May be found unconstitutional as applied to a specific O Minority: unconstitutional as a taking without compensation. Content based ordinances o Purpose must be compelling Content-neutral ordinances o Purpose need only be substantial Time, place, and manner restrictions o Must be content-neutral o Must leave open “ample channels of communication”

o o o o

Advertising Signs
content of sign determines whether and how regulation apply (e.g. For Sale sign) Regulates sign without regard to the message or content Traffic safety, aesthetics, economic development, property value

Signs are a form of expression protected by free speech subject to principalities please power. o May regulate physical characteristics of signs The 1st Amd prevents a township from achieving its goal by restricting the free flow of truthful information. A private citizen’s interest in controlling the use of his own property justifies a disparate treatment. (Vincent) A prohibition is not always invalid merely because it applies to a sizable category of speech . o Prohibiting signs placed on public property does not threaten the ability to communicate effectively. Residential signs have long been an important and distinct medium of expression. Concerns with laws that foreclose an entire medium of expression. D:\Docstoc\Working\pdf\8f0a1cbd-7756-4a8b-abb6-7148fd529238.doc Page 6 of 8

Property II - Outline o Although prohibitions foreclosing entire media may be completely free of content or viewpoint discrimination, the danger they pose to the freedom of speech is readily apparent -- by eliminating a common means of speaking, such measures can no.

Even regulations that do not foreclose an entire medium of expression, but merely shift the time, place, or manner of its use, must leave open ample alternative channels for communication Zoning against adult entertainment o An ordinance that permits adult entertainment, but disperses or limits them to certain zones, is constitutional. o Although discrimination based on content of speech, constitutional as serving substantial gov interest while allowing reasonable alternative places for adult entertainment. o Even total ban on nude dancing can be upheld. o Ordinances that are narrowly tailored to affect only entertainment demonstrated to have the of want a secondary effects are usually upheld. Ex (Belle Terre): Ordinance said “any number of related family members can live in a home” but “only 2 unrelated people can live together”. This is OK. No impingement on right of association and privacy. Defer to legislature as long as relationship to a permissible state objective.

Although the measure seem to be content-based, they were in fact time, place, and manner restrictions aimed not at content but at the secondary effects of adult theaters on the quality of life

Non-Traditional families
Equal Protection & Due Process: o The validity of zoning regulation is measured by rational relationship test. o The legislation only has to bear a rational relation to a permissible state objective What is a family? o If the definition bears a rational relationship to the objective of preserving family values and quiet seclusion, the definition is muster o Some courts: occupancy restrictions based on the illogical or legal relationships violated the state constitution, because the definitions not bare a rational relationship to the goal of controlling density.

Low Income Housing
Every developing municipality must, by its land use regulations, presumptively make realistically possible an appropriate variety and choice of housing. o Presumptively it cannot foreclose the opportunity of the classes of people mentioned for low and moderate income housing o absent some kind of agreement among the municipalities, every municipality must bear its fair share of the present and prospective regional need. o Municipality has the high burden of demonstrating peculiar circumstances which dictate that it should not be required so to do. o Must provide a multifamily housing without a bedroom or similar restrictions o must permit small dwellings on very small lots, low-cost housing of other types, high density zoning without artificial and unjustifiable minimum requirements o when a municipality zones for industry, must permit adequate housing within the means

Ex (Mount Laurel): Ordinance went out of its way to discourage low income housing (lot and size requirements). It meant to attract people with no children and affluent people. This is to keep taxes down. Violates equal protection clauses. Must accommodate all kinds of income and residential requirements for the region not just the municipality.

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Property II - Outline
o of the employees involved in such uses amount of land removed from residential use by allegations industry, must be reasonably related to the present and future potential for such purposes

Zoning regulations must promote public health, safety, morals or the general welfare. o enactments contrary to general welfare are invalid. Zoning power is the police power of the state. o local authorities act as delicate o the welfare of the state citizens beyond the borders of a particular municipality cannot be disregarded and must be recognized and served. May not adopt regulations or policies which thwart or preclude low and moderate housing. o Local fiscal reasons, not sufficient Burden Shifting: o Facial showing of violation of due process or equal protection o burden shifts to mix ability to establish valid superseding reasons for its action

o No municipality may exclude or limit categories of housing for tax purposes only Remedy
∏ must make reasonable efforts to seek local relief. In reaching the conclusion that a zoning ordinance is void as to specific property o the court must decide whether the restriction has a basis in o public health, o safety and o welfare, o in the light of o the uses to which surrounding property is or may be put, o the care with which the community has undertaken to plan its land use development, o the evidence or lack of evidence of community need for the use proposed by the ∏. If ∏ is asking for a specific use, ∏ may be allowed to proceed with that use only. o ∏ does not have to build in accordance with the exact specifications presented. If ∏ asserts a broader challenge in terms of a class of uses, the decree may be shaped accordingly. Ex: The property, undeveloped farmland, had been annexed to the village but was later disconnected from the village. Under the provisions of the county zoning ordinance, the property was automatically classified as single-family residence upon its disconnection from the village. The landowners, seeking to install oil storage tanks, brought their action after they were unsuccessful in petitioning the county board of commissioners for an amendment to the zoning ordinance to reclassify the property as light industrial. The court found that the landowners had made reasonable efforts to obtain local relief before bringing their grievance to court. The court observed that undesirable consequences could ensue if the property were left unzoned as the result of a decree declaring a zoning ordinance void

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