Private Land Use Controls

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Analogy to nuisance. One of the things to think about when we get to Lucas, the latest important case on takings from the Supreme Court. Euclid sets the bounds by establishing this analogy to nuisance. Clear that you can zone for things that are far from common law nuisance: lots, types of architecture. The idea that zoning is legal because you are preventing one landowner from damaging other people is at the heart of the legal rational, as opposed to being legal because it creates something beneficial.

How courts address judicial review of zoning plans. The court in Euclid looking at the zoning in the abstract. The standard of judicial review is very deferential. The court will be extremely reluctant to say that any of it is illegal. In constitutional issue of taking, the court will approach it cautiously and will only overturn it if:

  • lacks rational basis

  • considered as taking a person’s property

When Ambler comes to the court about a particular lot because it has a particular plan we will then see what the dimunition of value is, where they can still use it. If they or any other litigant can show that for any specific lot they can’t make a legitimate return, we will then see if there is any problem. The opponents of zoning lost those battles. See Nectow, p. 1098.

The Supreme Court now willing to be less deferential, looking more closely at land use regulations that diminish property values. The brief and district court document here foreshadow later issues. The district court judge saw what was going to happen with zoning. Difference between legislation in the abstract and the ordinance as applied to a specific lot.

p. 1096, standard to overturn

  • clearly arbitrary and unreasonable. Arbitrary if not related to the underlying constitution, documents, bylaws. Could still be reasonable, that is why they have added unreasonable.

  • no substantial relation to the public health, safety, morals or general welfare.

Related to the police power of the state. The ability to make laws related to all of these things. Where does the city of Euclid get the power to use the police power? Gets it because they have a democracy, inherent power as a democratic unit to pass legislation that restricts people’s freedom of action. Comes from the state government, constitution. Does not come from the city of Euclid. The city of Euclid has no inherent police power. The state of Ohio does have police power because it is a sovereign entity. As sovereign as the federal government. Cities are not sovereign, so the power to restrict people’s freedom and diminish the value of their property comes from the state, not the local government.

Sounds like Narshdect, the court was trying to look generally, P wanted to look at the specific harm to her.

For the structure of zoning, we will pay special attention to Fasano and McDonald. Fasano is particularly important because it lays out the different levels of analysis in the zoning process, which you will be dealing with in detail in the South Street Exercise.

Fasano v. Board of County Commissioners

Facts: P was the county commissioners, neighboring landowners, not the landowners of the rezoned land. What right do they have to bring this action? Have right to ask that the zoning laws be enforced. Saying this is an appropriate change to the zoning laws. If the trailer park were in and the zoning had not been changed, then the county had some power over citizens to try to force zoning enforcement. But here not talking about a lack of administrative enforcement.

In Needham (South Street), talking about an administrative officer not enforcing the law for the benefit of those who are concerned. In the nature of mandamus, a person can go to court to order a person to do their duty. More difficult to order someone to do their duty when the duty is not to issue something for which there are clear guidelines. Have discretion to enforce. But there are specific rules to enforce commission to enforce existing law.

Here challenging a change in the law, not asking for enforcement. The defendant is also different, here the county commissioners. Want to be able to get an injunction against the builders. Armand Levine in South Street is equivalent to someone who is going to enforce the law. Doesn’t mean that he has to be the one to enforce, he can have someone on his staff do it. The legislature is the equivalent in the enforcement are in city government. In Needham its the town meeting that makes the laws.

Here it’s the county commissioners who change the law, also the people that made the law originally. The power to amend is limited to the same institution that has the power to legislate. Here we have the creation of a rule.


What gives P the power to challenge the creation of this rule? They have to be affected to have standing.

  • Here they live nearby and fear that their property values will plummet. Good P in this case. If we don’t have these landowners, who do we have. Neighbors can bring action even when their land is unaffected. Have to be aggrieved in some concrete way.

  • State of Oregon, could sue as an abuse of discretion. They granted the police power for certain reasons and this change is an abuse of that power. P. 1195, goes back to source of sovereignty in Euclid. Weak lead to rely on to make sure you have legal land use planning.

  • Relaxed doctrine of standing in U.S., give it to anyone with attenuated greivances. If you don’t have standing granted broadly then you can have an arrangement between the permit granting authority and developers. The problem is that you have a lot of suits that claim to be for the public interest brought for private reasons.

The regulatory state, Upham tries to emphasize in first year courses. Use land use planning to introduce the idea of the administrative state.

  • standing

  • difference between legislation and administration, Euclid, South Street

  • Standard of review, different for legislative and administrative law.

P were either abutters or abutted abutters. Easements would not come up because zoning would not trump covenants. Covenants are usually prohibitive not affirmative. Zoning is affirmative.


  1. Comprehensive Plan for development, the land was then residential

  1. New P-R (UD) zone created, all done by the commission/legislative, deserve the highest deference from the court. Democratically elected legislators setting rules for land use.

  1. AGS land rezoned P-R

The court did not give deference as if legislative, said should be treated differently as if it were a judicial decision. The court determines that because it is judicial it can then decide the standards for rezoning, who should have standing and the effect of the decision. Viewing as an administrative/judicial/adjudicative means that treat 1970 decision this way, the consequence is that they will look more closely at it.

Why does the court consider this to be administrative, when would have considered 1959 and 1963 acts to be legislative and given great deference?

  • 1970 action seen more like a variance. Action on AGS’ application.

  • The board is entitled to come up with a general plan for the whole parcel, the 1970 action is a specific clear interest.

  • 1963 act was a specific amendment to the plan, but still seen as legislative, treated with deference. The 1970 amendment wouldn’t be treated with deference. The commission can set up whatever guidelines it wants, but when it begins to apply to specific situations becomes administrative.

  • 1959 plan set the uses for all the places. Was not abstract and didn’t bind, it had immediate effect.

  • 1963 zone creation also had vision, now will include new kinds of uses but totally abstract, not placed anywere.

  • 1970 decision is like a permit application, this case is here for two reasons:

  1. fundamental issue in zoning is scope of review, legislative deference or administrative scrutiny.

  2. This is the way zoning happens, every town has a land use plan that has to be developed by a paid professional. You have comprehensive plans developed infrequently.

  • As long as you have a plan the only people who will complain are those who want to use land in a way not allowed by the plan. These tend to be developers who want to make money.

  • Why do they think they can make money? Go to legislative director because can’t go to the building inspector. AGS can make money in current situation but not as much.

  • Substantial public need for less expensive trailer homes. People who are not there now, how can they articulate their political desires. So the developers articulate it for them. These people represent the public. The state can use police powers to help them.

The court decides not to use the arbitrary and capricious standard. Not a deferential standard.

  1. Public need for the change.

  2. The need will be best served by changing the classification of the particular piece of property in question as compared with other available property.

Every legislative body that does this has a Planning Commission, underneath them they have city planners. Another dimension of administrative law is expertness. Courts will defer to experts. Here the planning department staff supported the change but did so in a vague statement. Upham says so what. Maybe want to have a fuller statement to avoid corruption. Could look at the record. In the record here what there was to show the deliberation of the experts was a vague statement. The staff report seemed to be in favor was too conclusory and superficial.

Would want to look at recommendations in the record which are not conclusory or superficial, want substantial evidence. Magic word for judicial review of administrative actions need to be able to show by substantial evidence in the record that it is in compliance with the comprehensive plan.

Requiring that the need be best served…would make it unlikely that you would have rezoning. Followed in NJ in Mt. Laurel case. If it happens to be the best parcel for the public need it is unlikely to be the parcel owned by a developer. If you have a zoning entity that doesn’t want to zone for trailer parks, they are not going to dole out land. The developer will come and buy land and present it to the legislative body for rezoning. The board will always be able to point to another parcel that would be better.

Don’t need to take the second criteria seriously, if we did, there would never be rezoning.

Directory: sites -> default -> files -> upload documents
upload documents -> Always put things in threes (eskridge has ocd) I. Procedural Due Process and Reading a Case
upload documents -> Federalism – The Structure of Government
upload documents -> General Info About Property law
upload documents -> Con law professor Larry Sager Fall 1995 I. U. S. Term limits V. Thornton
upload documents -> Property with Professor Vicki Been
upload documents -> Property Outline – Professor Upham, Spring 2000
upload documents -> Constitutional law outline part I: structure of government judicial review and constitutional interpretation
upload documents -> Complex federal investigations
upload documents -> Foundations: Agency Law Introduction to law of enterprise organizations
upload documents -> Pricing v. Sanctions

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