Ownership-a system of laws governing the relationship among people with respect to resources. A social construct

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Euclidean zoning is cumulative--districts are graded such that "higher" uses are permitted in areas zoned for "lower" uses, but not vice versa; thus one can put a house in an industrial zone, but not a factory in a residential zone. There are usually three overlaid restrictions: use, height, and area. Sometimes minimum square feet, setback requirements, etc. (1003)

Modern trend is away from cumulative zoning--an apartment in a factory zone is as unhealth as a factory in an apartment zone.

By binding limited classes of uses into tightly drawn districts, Euclidean zoning can work inequitable hardships and promte inefficient patterns of land use; it can also inhibit cosially and aesthetically desirable diversity.

Nectow v. City of Cambridge (1928 at 1004)

Court held that restricting 100 foot strip of platinff's land to residential uses was unconstitutional.

A master appointed by the trial court found that the strip "did not promote health, safety, or welfare."

On this record the court found the ordinance unconstituional as applied

What about a "buffer zone" between residential and industrial uses?

Enabling legislation--Standard State Zoning Enabling Act (1006)

Section 1--Grant of power--What can I regulate?

Section 2--Districts--permits division of municipalities into zones

Section 3--Purposes--requires drafting of comprehensive plan

Section 4--Method of procedure

Section 5--Changes

Section 6--Zoning commission (devises plan)

Section 7--Board of Adjustment (hears appeals and makes exceptions)

Section 8--Enforcement and Remedies

Section 9--Conflict with Other laws--most restrictive use applies

Comprehensive planning requirement--a statement of the local government's objectives and standards for development

Planning process has not been taken seriously by the courts (1007)

Existence of a plan prevents "special interest ad hocery." (1007)

The emphasis has been on whether the zoning ordinance itself is a comprehensive plan, not whether it is in accordance with such a plan. Little more has been required than that zoning be reasonable and impartial (1008)

Zoning ordinances and subdivision controls

Chief means of enforcing zoning regulations is through denial of building permits or certificates of occupancy

Subdivision ordinances set out standards and procedures to govern the breaking up of tracts of land into lots (i.e. mandatory provision of sidewalks, etc.)

These Exactions are often justified on the basis that since homeowners could be subjected to special assessments by the city in order to provide the facilities in question, an equivalent is to put the burden on developers, who will in turn pass the costs on to buyers.

PA Northern Distributors, Inc. v. Zoning Hearing Bd. (1991 at 1011)

Plaintiff runs an adult bookstore; city passes a typical ordinance keeping adult entertainment away from churches, schools, and residential neighborhoods.

The ordinance includes a 90-day amortization period to allow the owners of restricted uses to recoup their investments before abandoning the practice.

Court holds that a regulation which requires "the amortization and discontinuance of a lawful pre-existing nonconforming use is per se confiscatory and violative of the Pennsylvania Constituion" (1015)

Unless it is a nuisance, is abandoned, or is taken (1014)

Case is based on Pennsylvania constitution because under federal constitution this would not have been a taking

Hadacheck nuisance (but Lucas undercut this)

Did it go too far? (Penn Central)--left with viable use

After PA Northern, zoning can be used only to limit future uses.

Amortization clauses are just passed for administrative purposes, they don't actually allow an owner to recoup his investment

If they shut him down immediately, it will be a taking

If they wait for him to go out of business, it won't happen anytime soon because a non-conforming use has a de facto monopoly power (zoning ordinance creates barrier to entry)

Right to maintain a nonconforming use runs with the land (1018)

Amortization in general (1019)--factors usually listed as relevant to an assessment of the reasonableness of a particular amortization period

Nature of the use in question

Amount invested in it

Number of improvements

Public detriment caused by the use

Character of the surrounding neighborhodd

Amount of time needed to "amortize" the investment

"Vested" rights in a non-conforming use--for an owner to have vested rights, he must have gone beyond buying the land and making a plan; he must have been doing something on the land. The line is usually drawn when a building permit is granted (1019-1020)

Estoppel--person relies on an erroneous zoning map; courts usally hold that it takes a lot to estop a city's zoning power--person should have checked other sources (1020)

Zoning Flexibility Devices

Fexibility Devices generally


Undue harship by denial

Grant would not negatively impact the comprehensive plan or impair the public good

Special Exceptions

A use which is expressly permitted by the ordinance subject to approval (need for regulation); carries presumption of validity

Examples might be gas-stations, hospitals, etc.


Zoning changes are done by the legislature (city counsel), so there is a presumption of validity unlike "adjudicative" (zoning appeal board) actions.

A re-zoning has a narrow application. It can single out people, and opens up more potential for abuse. When a city counsel acts with respect to a parcel of land, it may be acting in an "adjudicative" mode (Fasano at 1037-


Commons v. Westwood Zoning Bd. of Adjustment (1980 at 1021)

Zoning ordinance required large frontage and square footage requirments. Only 8 of 24 homes actually complied (think pre-

existing use).

Less congestion

Higher prices

Commons is denied an application for a variance. Requirements for a variance are:

Undue hardship

Grant of variance would not impair public good

"Denial of a variance on a summary finding couched in the conclusionary language of the statute is not adequate. There must be a statement of the specific findings of fact on which the Board reached the conclusion that the statutory criteria for a variance were not satisfied. Unless such findings are recited, a reviewing court cannot determine fairly whether the Board acted property and within the limits of its authority in refusing vaiance" (1028).

Court overruled the denial; this is an unusual case--courts nomally give much deference to the zoning board's decisions

If the board wanted its decision to stick on appeal, they should have said that it was grounded on aesthetics, which has often been held to be an appropriate reason, and difficult to overturn.

It would certainly be consonant with the interest of all parties to deny a variance conditioned on the purchase of the land by adjoining property owners at a fair price (1026).

If neighbors want to keep the land vacant, they should buy it up because they're the ones getting the benefit from it anyway

The burden of proof is said to be greater for a use variance (commercial vs. residential) than for an area variance (waiver of frontage requirements, etc.) (1029)

Cope v. Inhabitants of the Town of Brunswick (1983 at 1030)

Zoning board is allows to decide whether use is adverse to the "health, safety, or general welfare" of the public.

Local zoning boards, like municipalities, have no inherent authority to regulate the use of private property; the power of a town or local zoning board is conferred upon the town by the State (1031)

Court says the state cannot delegate its responsibility without set standards (1032).

Locality would have unbridled discretion

Opportunity for corruption

BUT denial limits flexibility

Some courts DO allow unbridled discretion in granting special exeptions (1035)

Fasano v. Bd. of Conty Comm'rs of Washington County (1973 at 1036)

"Ordinances laying down general policies without regard to a specific piece of property are usually an exercise of legislative authority, are subject to limited review, and may only be attacked upon consitutional grounds for an arbitrary abuse of authority" (1038).

"A determination whether the permissible use of a specific piece of property should be changes is usually an exercise of judidicial authority and its propriety is subject to an altogether different test" (1038).

So CONCEPTUALIZATION of a decision as legislative or judicial gives a reviewing court more or less discretion on review.

Incentive zoning

Deal-making--legilature knows 50 floor is okay but zones at 45, which creates a "currency" of 5 floors; "We'll let you build 50 if you give us a plaza"

Now these deal are scrutinized more strictly (Nollan)--What is the nexus between the exaction and the variance.

This was bad because homeless people started sleeping in the plazas and the buildings were liable in tort for anything that happens in the plazas

On the other hand, the owners will be making lots of money on the extra floors, so why shouldn't the public get something too?

Aethetic Zoning and Preservation of Community Character


Is the objective of modern zoning ordinances appropriate or merely a subterfuge for an illigitimate goal?

Is it appropriate for government to limit property rights?

Does it limit other personal rights?

Does the purpose of the zoning justify the infringements on principle parties?

What about third party effects? (inclusionary or exclusionary zoning)

Purposes for zoning

Nuisance prevention (traditional justification)

Aesthetics preservation

Preservation of property values (authorized by §3 of Standard State Zoning Enabling Act at 1006)

Prevents "filtering" of property to poor people; which is how they usually get it--not through gov't subsidies

Maintains property tax revenues; healthy tax base can benefit the community

Investment in a home is undiversified; declining home values affect people more than stock market declines

Directory: sites -> default -> files -> upload documents
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