Private Land Use Controls

MacDonald v. Board of County Commissioners

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MacDonald v. Board of County Commissioners

Read again and think through in relation to Fasano. Should be able to get a fuller reading. Will discuss further on Tuesday.

Majority: sets up a standard that is called the mistake or change standard. Have to show a mistake in the comprehensive plan or a change in the environment. The changes shown were within the planned area. The plan anticipated explosive growth. So change has to be change not anticipated in the comprehensive plan. So that the way the plan is dealing with the change is the way the plan intended to do it. Mistake, same.

Dissent: this is a difficult standard. It is worth repeating that it is a standard that has been applied to the decision of a democratically selected body. Not telling an administrator, telling a lawmaker that you have made the wrong law.

p.1107, California Court says we are going to give legislative deference everytime there is legislation, even if in the nature of spot zoning. Allows for collusion, short sightedness, corruption. A tough standard leads to entrenched interest, rigidity and not allowing for accommodation of public need.

Harbison v. City of Buffalo

Dissent: if you agree that there is no nuisance, no injury, tehn what we are talking about is the restriction of a person’s rights. Here the right is substantial,the right to pursue a 23 year old business. What is the reason for that, not because of nuisance or harm, just a desire for symmetry. Get back to Nahrstedt, enforcing something where there is no harm showed by the non enforcement and there is severe harm caused to the individual by the enforcement.

For Monday: south street exercise, on Tuesday go back to cases; Belle Terre, Moore, and Schad and Eastlake. We will do those on Tuesday and Wednesday as well as wrapping up South Street on Wednesday. (4 hours)

In the next part of the zoning assignment (1181-1233), we will go through the Belle Terre, Moore, and Schad cases in a straightforward way. For exclusionary zoning, we will do Bilbar, and National Land quickly and focus on the Mt. Laurel cases.

  1. The South Street Exercise

(Materials to be distributed)

For the South Street exercise, you will be assigned to a three person group to represent Ms. Kathleen Wright, CEO of the Massachusetts Visiting Nurses Association. The case study will unfold in a series of handouts, the first of which you have already received. The first step in the exercise will be the preparation by your group of a strategy memo.

Strategy Memo - due in class on Monday, April 12

Your group will play the role of an intern in a small law office in Boston. Your boss, Ken Margolin, has asked you to research and prepare a memo for an initial meeting with Wright on the matter outlined in the Statement of Facts.

  1. The memo should outline the issues and possible courses of action for the VNA.

  2. There is no set length or format, but none of the successful memos in the past has been more than seven pages.

  3. The purpose of the memo is to prepare Margolin to discuss with Wright her options.

  4. It is not a legal brief and it should not be limited to legal options. The VNA is one of Margolin’s oldest and best clients and they have a comfortable and close working relationship that has involved Margolin in areas and aspects of their business that go well beyond the strictly legal.

  5. When you hand in the memo, please use your group number, rather than your individual names, so the caption would read “to: Ken Margolin, From: Group Twenty”.


South Street Review

  1. What action if any should the VNA take to ensure continued access via the existing driveway?

Pursue a prescriptive easement – was there privity between all of the parties to the land? The sale from the bank to us establishes privity, we should argue this. What is the statutory period?

We don’t know the perspective of the next door neighbor, we just know that he is a landowner of the abutting property. Might assume that the protesting neighbors might try to elicit his support to make life more difficult for VNA.

Might not take any action at this time because want to use the questionability of use of the current driveway to support the creation of the second driveway.

VNA was upset when they got the survey and found they didn’t own the driveway. Might want to talk to VNA about the possibility of the prescriptive easement. Want to think about how much you tell her, she doesn’t want to know anything. You should make some decisions and stream the info that she needs. It may be their driveway even though the surveyor found it was not on their property. May not want to say anything to the neigbhor.

We may or may not get a prescriptive easement, need to know dates, privity, etc. What is the first thing you would do in this situation.

  1. Go to the neighbor, find out who he is, not likely to have an attorney. You will get an address for the owner of the vacant lot. He may be disinterested.

  2. The easiest thing to do is to spend money. The VNA is not interested in paying for the lot. What could we offer for the lot, we don’t want to give money.

  3. Might lease it,

  4. Offer something that might be attractive to the lot owner. Memorialize his name on the driveway. Then the owner could get a tax break. Gets the state to subsidize the driveway. He could be mentioned in their brochure.

  5. Creates a problem we don’t have by telling him about the right to the property and our need for it. He could be just as upset as other neighbors about the decrease in property values. It doesn’t matter whether the harm is real or visible. Wouldn’t matter if you could show that the property values around hospice homes don’t go down but appreciate.

  6. What does he do if he is alerted? He could keep us from using it, put up a fence, tell us we can’t use it and cease any case we had for a prescriptive easement.

  7. Want to know what the lot owner thinks his property line is. Right now he doesn’t think the driveway is his land.

  8. Information management problem here, we have more info than anyone else which is good. But its info we don’t necessarily want other people to have. The other neighbors don’t necessarily know about this problem. How does that impact the public hearing process? If they can’t use the current driveway, or knock down the wall to create the second driveway, the land becomes absolutely worthless.

  9. Even if the lot owner agrees to let VNA use the driveway, hurts us when we go to the planning board for the second driveway. We can no longer argue necessity. Our property is constitutionally taken from us.

  10. Want to find records of previous approval processis. To find out what the legal standard was.

Have a problem if go before the planning board and haven’t exhausted all of your options. They are likely to ask if you have asked the neighbor for use of the first driveway, if you haven’t looks like you haven’t done all that you can to meet your needs.

We do know that it is important to stay in harmony with the current plan. Want to show how your proposed use is in harmony with the current plan. Want to make yourself good community members or risk alienating people whose approval we require.

Assume we are going to take the friendly, open community approach. We are going to appear before the planning board to get written permission. There will still be people that will oppose us. They will be people with clout and standing to appear before the hearing. May have two groups of neighbors, those that support us and those that will be dead set against it. The Planning Board will be caught in between want to give them as much info to find in our favor as we can.

  1. How should VNA proceed regarding creation of a second driveway through the stone wall?

Question of interaction between this driveway and the second driveway. To justify breaking through the wall on the scenic roadway, VNA has to say this is a reasonable thing to do. What is the standard? 15C allows various interpretations. But it is discretionary, with prior written consent. Doesn’t give any criteria for making that determination. But procedures necessary seem similar to a variance. So look to what you would need for a variance to determine what you would need for 15C.

Some analogized to what you would need for a Special Permit: permission to do something provision for which was already in that use district, to determine what you would need as a standard to break through the wall.

Difference between variance and special permit approaches? Special Permit approach more flexible and discretionary for the decision makers. More discretion to grant or deny a special permit than they do a variance. We want them to have more discretion so we can throw in more non-legal arguments. We are ready to go before the planning board to talk about the need and nature of hospices, and highlight how it will not be inconsistent with the neighborhood. Gives more flexibility to make the argument to the planning board, broader range with which to deny or grant permission. With a variance there is a standard that must be reached, if it is not reached, don’t get the variance.

Special Permit requires the use to fit in well with the neighborhood, loose discretionary criterion. Seems to be easier to get a special permit type permission, than variance. Variance you have to show substantial hardship, don’t have to do that for Special Permit.

Question of statutory construction, since there is no standard mentioned in 15C, gives a lot of discretion. Question for us f where do we want to push the board. We may have to tell the board what the standard is. Both sides will be trying to do this, we need to know which standard we want to argue for. More or less discretionary standard.

This has probably happened before, should be able to look to the record to determine what has been done before. We want to know what standard they have used before. This should be available from the public record of the town meetings. Says specifically in 15C that decision is made at a public hearing duly advertised. The decision has to be written. There will be a record of written decisions. Their might not be briefs or written opinions. Most people requesting permission are single family residences, might not have hired attorneys, less formal process.

Want to find out if the planning board has committed itself to one viewpoint or another, assumes a legal stance of the board which may not be in place. May want to look at other planning boards and how they have interpreted the statute.

May be only written permissions, not written denials.

May want to look at newspapers, editorials to see if any of these types of disputes have been documented, neighbors have complained.

Want to know why VNA wants the second driveway. They want to have entrance and exit. They do need parking, visitors and staff. There will be a question of width of the driveway, vehicles coming in, though not emergency vehicles.

Concern over public opinion, neighbors have a lot of misinformation right now that they will introduce into the record at the public hearing. We want to counter this. The rules will matter less than whether or not we can get political support for the facility. We should be talking about how do we get rid of the misinformation on the part of the neighbors.

What other facts might you want to know?

  • VNA taking a house not being used at the time, they are going to maintain the house in and out.

  • Where else have stone walls been knocked down. Might want to show that others have been allowed to, so not to allow us to do it would constitute discrimination. Research the records, talk to the neighbors.

  • May find no permits whatsoever. Homeowners probably don’t know about 15C. Margolin should go to South Street and videotape all the structures around 920. Find out how many have a driveway, then find out if they have a permit.

  • Is a wall there? May have been torn down so much that it no longer exist.

  • Our neighbors who are coming to oppose us may not have gotten permits to break through the wall to put in their driveways.

The goal is to use the building as a hospice, not victory at all cost. Don’t want to put the hole in the wall and accept the fine to the extent that it could hamper further cooperation with the board.

Can we go through the wall and pay the fine? Can we say to Kathleen Wright do it quick before the neighbors organize? If everything else fails you can always tear down the wall and pay the fine. Is there a problem with that? Yes, 40A 7 says its 300 per day. But there are other interpretations. Look at as if the fine is assessed once. Talk about it as if it is clear that VNA is going to pay Margolin a lot more than 300 to go the hearing and argue it.

What about the ethical arguments? Any problems advising a client to break the law? Should you have any problems? Dichotomy between moral and ethical considerations. Consequences, should you decide to break the law, not only are you breaking the law, but there are increased cost.

It will pay in the long run to act morally, suppose we do all of the possible things and they deny the permit. Want to tell the client all of these options in the beginning. Now at the end saying this is the only option left, do it at your peril.


  1. What is the appeals process and on what grounds would you appeal the denied building permit? Does the Fair Housing Act protect hospice residents from state and local government discrimination?

How can VNA respond to the Building Inspector’s Decision to deny the building permit?

What is the decision that we are appealing? The decision to deny the building permit.

Why did Armand Levigne reject the permit? No hearing, just applied, got back the letter. Doesn’t apply to the limitations placed on SRA.

Looks like the intended use is for a nursing convalescence home, need to apply for a special permit.


  • No increased traffic. Not a reason for the original denial. Probably wouldn’t cite as a legal ground for denial.

  • estoppel against enforcement, if didn’t enforce against prior residents you can’t enforce it against us.

Appeal to the Zoning Board of Appeals:

  • VNA goals, to open this hospice and other hospices later. Might make you more open to judicial action. Practical problem with going to court. We have to exhaust all of our administrative remedies. We must ask for a special permit or we can’t go to court. Its confrontational, antagonistic. At some point the battle is going to have to be fought. Litigation also involves time and money. Time here also means mortgage payments, so there is a real urgency.

  • ask for them to overrule the denial of the building permit. The permit should have been granted

VNA is an educational institution, should not be subject to restrictions. Non-profit educational corporations are exempt from this. Would enable you to operate as of right. Based on the by-laws and 40A 3, the town can’t place more restrictions than allowed by the state. Even if the town had placed additional restrictions, the state would govern. Probably want to look at the state rule, since it will govern. The by-law is narrower. Trying to get them inside some other category to get them a Y.

Fair Housing Act, the occupants would be considered handicapped/disabled. Would be under the fair housing act. Should be given the permit to full enjoyment of the premises.

The intent for the residence is not inconsistent with the proposed uses for the community.

How do you define a nursing home? Place where people are not acutely, chronically ill or recovering. This may be a nursing home. But people may be acutely ill.

  • Ask for the special permit

What is the problem with asking for a special permit? It concedes that we are a nursing home.

Levigne will probably have a lot of influence with the board, also once we get the special permit we have to go back to get the building permit.

They want to open the hospice now in Needham as soon as possible, with as little confrontation and cost as possible. If they do that at the cost of substantially hurting ability to open other hospices in Needham, that factors in. If we go for a special permit, admit to being a nursing home. Problems, Kathleen Wright emphatically says we are not a nursing home. Ideologically opposite to perspective. Go to another town, we know you are a nursing home.

Doubtful use: pick the one that most closely resembles the use described. Here Levigne argued that it was a nursing home, could argue that this is untrue.


City of Eastlake v. Forest City Enterprises, Inc.

Facts: landowner purchased land in a suburb of Cleveland, he wanted to build on it. He applied for a zoning change to permit the construction of an apartment building. The lot size is 8 acres. Just one big building.

Issue: He is not asking for a variance, wants a change by-law amendment. Administrative since just one parcel of land versus setting out a plan which would be legislative.

Legislative v. Administrative – look at

  1. body that makes the decision. Body that makes zoning change, amendment to the by laws is likely to be the city council. This has been changed in Eastlake.

  • Probably the planning commission’s role in this process vis a vie the city council, the city council does the analysis about what plans to put on land and the planning commission handles request for variances.

  • Request for amendments probably goes to the planning commission first since they created the by-law. The city council gets the recommendation from the planning commission.

  • In Fasano had planning department made up of experts, a planning commission that is normally appointed. A political process, they then take the expertise of the planning department and bring in broader issues. The planning commission then makes a recommendation to the city council. The city council then passes the by-law which has the force of law. They are the direct representative of the people.

  • They don’t do this for variances, have the nature of adjudication, very fact specific decision. Not something you want city planning experts, political representatives to be in charge of. Just want a zoning board of adjustments, enforcement officer applies the rules to the facts.

  • In Eastlake, have a request to change the by-laws. This is normally done by the city council that sets broad legislative policy. The city council is the legislature for the city.

  1. The nature of the change and the effect of that change on other parcels of land. Here it is administrative, dealing with one parcel of change. Nature of the decision v. Nature of the decision maker.

  • In Fasano, MacDonald had legislative bodies making administrative type judgments. Not always clear. Those courts went different ways. In MacDonald had 855 acre parcel and a sophisticated plan. It looked more legistlative.

  • But this is only 8 acres, town of 29,000 people. Thrown a curve here because the city council not making this decision. Its eventually going to a referendum.

What is a referendum? What are the voters going to decide?

Decision of planning commission can’t be effective unless approved by 55% of the voters. All the voters, not just the voters affected by this change.

How did this do in state court? Initially approved, then Ohio Supreme Court decided the charter allowing the referendum was invalid. Why?

  • Due Process, 14th Amendment. Based on Ohio or U.S. Constitution. Must be U.S. if based on Ohio, it wouldn’t have gone to the S. Ct. because that’s up to Ohio. Even if satisfy Ohio standard, still has to satisfy the U.S. standard. Different now, a state court presented with a civil liberties, due process issue and wants to violate rights will base it on State Constitution because the federal supreme court has become much more conservative. In this case since they based it on a basic allocation of roles, basic constitutional issue that Ohio must have spoken on.

Supreme Court reverses and remands: What are the arguments for Forest City? What are they complaining about?

- Claiming its arbitrary. There is no standard at the referendum for what the public is going to approve and disapprove.

  • What is the standard of a court reviewing a decision in a zoning context? The decision must not be arbitrary and capricious. This is the standard used here.

  • If its argued as a due process violation, you should ask where does the due process requirement come from. The question here is if the decision to rezone was substantively arbitrary. Have to ask what rights the landowner has. The rights he has puts on the decision maker the requirements of due process. Then we look to see if it was arbitrary or passes some other standard.

  • Bundle of property rights not implicated in this case.

Excluding others

Being able to develop the land

Selling the land

  • Could argue that arbitrary was not the right standard. Has to do with if the change was legislative or administrative? Arbitrary standard used for legislative decision. But is this a legislative decision, request by one landowner to put up one building. Looks like a variance or at the most discretionary. Parallel spectrum from ministerial decision, if certain facts are met, the administrator must decide one way or the other; i.e. driver’s licence – death penalty (discretionary). This looks less discretionary. Is this the right place for this apartment building, very fact specific.

  • Courts make adjudicative decisions, best at investigations into individual issues. Better at reviewing those kinds of decisions when made by others than reviewing discretionary issues – death penalty. Compared with whether a particular proceedural issue has been dealt with appropriately.

  • Powell saying this is an administrative decision, we shouldn’t use this broad deferential standard.

  • Eastlake came up as an amendment to the zoning by-laws by an individual. But still affects the community’s rights, lessening degree as you get further away.

  • Whoever is deciding when a landowner comes to discuss its use on the land, the city council should be asking:

  • Consistent with the plan

  • What are the interest to be implicated going to be, broad deals with the whole community or localized

  • Should be taken into account when deciding what the standard of review is going to be.

Zoning is one example of administrative law and judicial review of administrative decision. Based on several assumptions:

  • The administrator should only do what the legislature, which is democratic, tells him to do. Fidelity to the rule.

  • Expertise, the administrative state, regulatory state, began in the 19th cent, but then just consisted of giving tax dollars to industry. Setting up regimes whereby taxpayers paid the industries directly monopolistic prices.

In the 30/40’s New Deal, the federal and state gov’t. began to regulate and subsidize industry. The theory behind the growth of the regulatory state, strongly in zoning, technical expertise is the justification for the regulation. Reason may be beneficial and harmful externalities. The vision of science of the 19th century that you could scientfically plan a city. Takes experts, if you give them the power to do this, they will make the ideal city. We should take it out of politics. Now replaced by the people will do it themselves, brings in referendums. Like in California.

Around the 50/60’s people became anxious by result of expert regulatory schemes. Expensive to fly, the regulators went to run the industries. The courts came in to replace this, to decide whether or not the bureacrat has abided by the law passed by the democratic process. Judicial review of legislative action is vastly easier than earlier.

  • Scope of Review: if dealing with a political decision the process is what is the vision of the city. What should the goals of our administrators be? Didn’t anticipate these needs. Want to amend the plan, want to have experts help us. They will tell us how to accomplish this goal, then the politicians, using their own values, will make the decisions with the expert input. They will create a zone, fit it into the mistake of the original plan, going to change it. Fasano the best case to understand creation of new/floating zones. Probably a purely legislative decision.

  • The most extreme legislative decision is doing an entire legislative plan from the beginning.

  • The next could be a politically expressed need, broad-based process. When deciding if you want a planned residential zone, don’t need testimony, just deciding if the town needs the slightly more dense type of housing.

  • The most extreme administrative decision, unfair to ask landowner to give up ability to use land profitably in order to enforce a general rule. The more general the rule the more fair it is in general, the more inevitable gross injustices in individual applications will be. When these situations are discovered by the landowner who can’t use the property by the rules. Then have a decision, there will be opposition. Have a hearing, put person requesting the change under oath, the neighbors then have the opportunity to cross-examine. Issue of individualized rights. Classic adjudicative decision process. Individualized administrative decision.

  • When we judicially review this stuff, what standard should the court use? The kind of justice that courts are interested in is justice affecting individualized rights in individualized circumstances where the majority is putting a burden on an individuals rights.

Focus on Eastlake, where on that spectrum does it fall?

Hypo: whether or not NY should have rail system? Should we drain the harbor, build up that aspect of the NYC economy. That is political. Is the decision to give an amendment on a piece of property, is that more like should we have a freight rail system or should we put the switching yard in Red Hook Brooklyn? Not that easy. Presenting argument that its clearly an administrative decision, can make the argument the other way as well, a single landowner trying to get his request treating in a just fashion in an individualized dispute.

Other side, this is a small town, not just an individualized decision, it’s a departure from policy, maybe more legislative. If we go back to Fasano, the legislative decision to create the PR district has been made, but have yet to decide where to put it. Each time its down, it requires an amendment to the plan. Argue the same factors that were initially raised back when the legislative decision was made. Legislative scope of review then the body making the decision doesn’t have to worry about a record, cross-examination, courts coming in and making sure that both parties are treated fairly. Only have to decide is is it arbitrary and capricious.

As opposed to asking for substantial evidence of due process. Arbitrary and capricious standard, don’t have to raise any of those issues.

What is the right?

- Note case, p. 1193, Reid v. Architectural Board of Review, this is her property right. Before it can be taken away have to give them due process.

- What property does Forest Industries have at stake here? Its the most profitable use. Is that a right? The property right is the right to make a reasonable profit? Is this threatened by the denial of the zoning amendment. Not threatened here, the land was zoned for light industry. That’s the way he bought it. Like South Street, SRA. Then you say you have a property right that has be protected by due process when I apply to get something that I knew I didn’t have when I bought it. Want zoning change to make land more valuable than when I bought it. Is that a right we have to protect?

  • Justice Stevens is concerned with this. Some property here that is implicated, this person has a right to due process. Where does that right come from? He is not being stopped from doing something he could otherwise do. He bought it this way. What is the property interest? If you have property, part of the bundle of rights you have is the expectation that your use of that property will be governed in a way that is rational, non-arbitrary. That includes asking for things you didn’t have before. As it should. Fundamental to a society that is democratic and smart.

  • Justice Powell’s dissent is about the structure of zoning, saying this makes for lousy decisions because in a referendum situation most voters don’t know squat about this situation. Most of the voters won’t vote.

  • This process disfavors developers. When you have broad based referendum, people with money have the advantage.

  • Takes out any expertise, planning standard in the decision. Looks a lot more like an adjudicative decision that requires some look at the individual situation, not so broad based.

Zoning as restrictions on the rights of property owners in the name of the common good of rational planning by government. Administered by a bureaucrat. If you have these factors normally conservatives against this. Want to get the gov’t. off the individuals backs.

Liberals on the other hand, the richest communities zone ferociously. There is a positive correlation between conservatism and wealth. Drastic control of individual freedom. A question of process and democratic self-determination.

The view of the gov’t. posing restrictions on the use of wealth can be consistent with the idea of severe restrictions on individual use of property. People in the U.S. who own residences have a sense of property rights that says “when I buy my lot the property rights are not solely my property rights, its more the degree that owning my property gives me rights to control others use of property that has an impact on my property. Outward looking and control centered.

Too harsh to say no property rights implicated in Eastlake, denied nothing that they bought. Too casually dismissed the idea of liberty rights being involved. Not dismissed, covered in Stevens dissent. Liberty rights are offended by the idea of not being able to do something you want to do. Can be expanded to include the general processis of government. This level of process cannot take place in a referendum.

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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