Private Land Use Controls

Zoning Doctrine and Process

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Zoning Doctrine and Process

Chapter 21 (pp. 1089-1125, 1135-1151, and 1167-1233)

Village of Euclid v. Ambler Realty Co.

We begin with the structure and process of zoning, although Euclid is properly a “takings” case and you should understand the court’s reasoning that allowed the city to reduce so drastically the permissible uses of real property. (Please also note the appellee’s brief that begins the opinion and the excerpt from the District Court Opinion reproduced in note 2 on page 1097-98. We will want to reconsider these arguments after we have completed zoning. Were they accurate, did the lawyer and district court make correct assumptions about what zoning was about?)

Euclid approved zoning over the district court which had overruled it. Implicates no constitutional principle or civil rights statute, but has to do with economic station in life. It is OK, that is the whole purpose of zoning.

Think about Euclid and who is setting the rules, the City of Euclid. What is the city of Euclid, how can they set these rules about zoning? Where does that power come from? What is the standard to decide if the rules set up by the city will past constitutional muster? Compelling state interest, clear and convincing. What would the Ambler realty company have to show about these rules to get them knocked down? What is the standard of judicial review? What are the limits? Euclid is the case that made zoning possible. Why did they think it was OK? What are the limits within this enabling opinion?

TA opportunity for property and research assistant – resume and writing sample due by next Tuesday.

Compare what is done in private and public land use control:

Three themes in public land use:

1) When is the government using the police power to do something that should be done by imminent domain?

In Euclid, Ambler arguing that the zoning so diminished its property that the city of Euclid would have to pay for it. The S.Ct. said that wasn’t necessary. Instead, the zoning regulation in Euclid was a valid regulation of the police power. Police power is the power of government to regulate activity. Environmental regulation is the exercise of police power. Question, has the police power gone so far that it is a back door exercise of the power of imminent domain. The power of state a federal government to take land for public use.

Some government entity with the power of imminent domain can take the property from land owners for public use. Has to pay the land owner just compensation, normally this is done by imminent domain.

Hypo 1: met area needs parking in downtown area. Downtown deteriorating due to lack of parking. The city parents decide they are going to put in new parking.

Options available to increase parking?

  • Buy the land themselves and put up the lots. Take it by imminent domain, force a sale, may be litigation over whether the value is adequate.

  • Easements or covenants. The city would have to make agreement with the owners of whose land they want to use. Make deals with owners in the area that they reserve parts of their property to be used as parking areas. Pay the landowners for the use.

  • Issue with first two options. These two options are expensive, could increase taxes. Perhaps could charge for parking. If there was money to be made, someone else would have already done it. Possible that there isn’t a lot large enough to operate as a parking lot. The city may have to accumulate the land, may not be possible for an entrepreneur.

  • Third option, for government to come in, accumulate the lots and sell them to someone else to run a parking garage.

Every city wants the best services, but nobody wants to pay increased taxes to receive the services. Every government is trying to get something for nothing. How could they get something for nothing?

  • Could pass a law that says that every business has to have a certain amount of parking. Don’t have to tear down, but every building permit would have to show that you have addressed the parking crisis. Either dedicate land for parking or pay a fee to allow the city to purchase land for the parking.

  • Business people will say, we desperately need parking, it has deteriorated so much that we can’t pay for it. If you make us pay for it it will exacerbate the problem

Hypo 2: suburb on the outskirts of a met area, the people living there see the character of the town changing. It has gone from a farming rural area to a bedroom community with farms and open space. They see it is going to become a suburb of NYC. They would like to be sure that the character of their town will not change. They are particularly concerned with open space.

Exurban: a town that previously was a rural center, still has farmland along with some development. A new highway opening up, the town is facing the possibility that it will be a commuter town.

How can they keep the low density, open spaces? Open space stands for exclusion because the more open space you have you have less humans. Why? Quality of life, houses more expensive, each lot and each home becomes more valuable. Zoning makes the land less valuable. Element of quality of life, low tax rate. Fire department, schools, etc.

  • The town could come in and say we want it to remain farmland. We will purchase conservation easements by imminent domain. The farmers see a chance to become multimillionaires may not want to give a conservation easement. They may want to hold onto the land until they can cash it in. Force them, but the problem is that you have to pay for it. Difference between the market price for development and the market price as a farm. That could be huge. A lot of tax dollars.

  • Zoning, limit number of units of houses. Advantage is that you don’t have to pay.

  1. Zoning is planning as is the private land use restrictions we say yesterday. Zoning is public planning. Slim chance that the market would work to do any of these things.

  • in case of town above, the market would come into a wealthy neighborhood and create middle class housing.

  • People at the local level want control over their lives. Want homogeneity of a certain type. This is accomplished through zoning and planning.

  • Whenever you plan you impinge on issues of freedom. Ensuring uniformity, homogeneity will create injustices at the application level. So onerous that you don’t want to enforce it.

  • Harbiston case, pre-existing non-conforming use. Can continue prior use indefinitely or for period of years, until the lease is up. Depends on what the prior use was, new use of neighborhood, can the two uses exist together. Assumption made that the pre-existing use would disappear, the opposite happened becaues created monopoly.

  • Can give stability, high quality of life, legitimate goal, the exercise of democracy at its most important leve. But whenever you try to control people’s lives there will be instances of injustice. Need flexibility in zoning regime. When you pass zoning have a map and text that spells out in each area what is allowed. Needham zoning bylaw gives the list of all of the ordinances in South Street. Within the ordinances have these three possibilities. Get it through a series of devises there to prevent the zoning process from becoming rigid and oppressive.

  • Variances: particularistic, the general rule by the planning authority. Go to board of adjustment and ask for the variance to excuse the application of the rule due to undue particularized hardship. Must be allowed because if not, my land so devalued that it constitutes a taking.

  • Special permits: built into the central planning scheme, but not something that people can do as of right. In most areas there are uses that are permitted as of right, then there are things that are banned, then there are things that may be OK, but have to get special exception. Go to an agency, they are authorized under the statute to allow this use in this area when it is compatible with the statute. Must allow or I won’t be able to use my land for its intended purpose.

  • Rezoning/amendment: in Fasano. Under the current map I am not allowed to build in this area. You have legislated a central rule, I want you to legislate again and restate the zoning map.

  • P.U.D., Village of New Hope p. 1135, planned unit development. Looks a lot like Fasano. An alternative to Euclidian zoning, which says these uses here and those there and the state says those are the only uses you can have. Uses by area, can be inclusive of less dense areas. That kind of zoning considered to be too rigid. All residential areas without variety, without adequate services. Since one major goal of land use planning is density regulation, why not just give developers land and tell them the permissible density and let them figure it out any way they want. Allow various uses, commercial activity. Up to the developer to arrange that density as he or she sees fit.

If you compare Village II at New Hope and compare to Fasano. Fasano says rezoning is invalid. Village II at New Hope says the rezoning is OK. Both involve the implanting of a new zone in an already designated area. Village II went the other way because of the acceptance by the Pennsylvania Court of the dissent in McDonald. Rezoning could be allowed due to new ideas.

When a developer gets a PUD, density zoning, the developer has the initial cut on how to arrange the uses but then she will have to come back to present that to the planning commission. Not just carte blanche.

  1. Judicial review, institutional capability of the courts. When do they come in? When they come in what standard of review do they use to determine if the zoning is unconstitutional or violative of some statute. The level of judicial review is what is at stake in Fasano and McDonald and in the California note case. Fasano is a very important case, it says that courts should look very carefully at which of these devices is being used and how, General legislative way or an adjudicatory way?

For tomorrow, read through McDonald.


Variances, Special Permits and Rezoning are the major issues in zoning law.

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