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Land Use
Rutgers University, Newark School of Law
Ball, Carlos A.

PROFESSOR BALL
LAND USE
FALL 2012
 
I.                   Introduction – Euclid and Zoning Districts
 
a.    Substantive Due Process – State’s Police Power to Regulate Land Use
                                                              i.      The state may, under its police power, regulate land use
1.      Police power – may regulate to promote the public health, safety, morals, or general welfare
2.      Municipalities posses no inherent right of self government; they only have the power to carry out tasks that are delegated by the state government
a.       Most state legislations retains form/substance of the Standard Zoning Enabling Act (allows zoning “for the purpose of promoting health, safety, morals, or the general welfare of the community”)
b.      Plaintiffs should argue that municipality is exceeding authority delegated by the state
c.       Residents have right to be free of arbitrary or irrational zoning actions (Euclid, Nectow, Belle Terre)
                                                            ii.      Comprehensive plan:
1.      Euclidian zoning: separation of land uses (example: industrial, commercial residential)
                                                          iii.      Two Due Process challenges to zoning ordinance:
1.      Facial (Euclid)
2.      As applied (Nectow)
                                                          iv.      Village of Euclid
1.      Ordinances that separate zones by uses are (facially valid) a legitimate exercise of state police power if:
a.       Ordinance is rationally related to health, safety, morals, or general welfare
b.      INVALID if not “fairly debatable” – i.e., A&C
                                                            v.      Applying Euclid arbitrary & capricious standard:
1.      Large lot zoning requirement – court skeptical about the connection a large lot minimum requirement has with the public welfare. 
a.       3 acre minimum lot in Martha’s Vineyard upheld against facial challenge because of the “special quality” (tourism) of the area and regulation connection with pond ecology (Johnson v. Town of Edgartown)
2.      Loretto Development Co. v. Village of Chardon: permanent physical occupation is a taking; small cable box on property that increased property value = regulatory taking
3.      Hernandez v. City of Hanford: court upholds an amendment (which allows department stores to sell furniture) because the municipality has a valid interest/goal in placing/encouraging growth of department stores in a certain areas
a.       Downtown is known for selling furniture; ordinance may impact certain competitors over others so long as this was not the goal
 
                                                       vi.      Cases
1.      Village of Euclid v. Ambler Realty Co.: facial challenge to ordinance—zoning violated due process right to be protected from arbitrary or unreasonable laws that did not further a legitimate public purpose
a.    Because the village had shown that certain dangers to the public lurked in the random mixing of industrial, commercial, and residential land uses, the Court upheld the local zoning as a valid exercise of the police power.
b.     Analogized to nuisance law
2.      Nectow v. City of Cambridge (“split lot problem”): as applied challenge; ordinance split plaintiffs’ lot into two uses
a.    Did not promote the health, safety, convenience and general welfare of the inhabitants as applied
b.     Zoning ordinance ARBITRARY as applied; splitting site (not large enough so as to be unusable when divided) is not reasonably related to promoting safety, health, morals, welfare
 
II.                The Nuts and Bolts of Zoning
a.      Zoning Administration
                                                              i.      Legislative actions
1.      Subject to a limited, deferential review
2.      Must be arbitrary and capricious
3.      No procedural requirements
4.      INCLUDES:
a.      Initial zoning
b.      Re-zoning (zoning amendment) – MAJORITY
c.       Conditional/contract zoning
d.      Development agreements
e.       Exercise of eminent domain
                                                            ii.      Administrative actions (quasi-judicial) (e.g., board of adjustment/zoning appeals, planning commission, zoning department)
1.      Closer scrutiny; must be substantial evidence supporting a rational decision
2.      Buren on person seeking change
3.      Procedural requirements apply if government is acting administratively or quasi-judicial. There must be NOTICE and HEARING
4.      INCLUDES:
a.      Special/conditional use permits
b.      Variances
c.       Historic preservation ordinances
b.      The zoning variances
                                                              i.      What is it?
1.      An administratively authorized departure from the terms of the zoning ordinance and is granted in cases of unique and individual hardship, in which a strict application of the terms of the ordinance would be UNCONSTITUTIONAL
                                                            ii.      Who issues?
1.      Board of Zoning Appeals or Board of Adjustment  (same/just different name)
a.       Since use separation is a fundamental characteristic of zoning (which is a legislative determination), the board is quite limited in their discretion to award use variances.
b.      “The board of appeals, without legislative power, may not in the guise of a variance, amend the zoning ordinance or disregard its provisions.” (Puritan-Greenfield)
                                                          iii.      Administrative act – so considered with less deference
1.      Must be supported by substantial evidence in record         
                                    

ision was “fairly debatable”)
                                                          iv.      Who makes the decision as to whether special permit should be granted?
1.      Board of Zoning Appeals,
2.      Planning Commission, or
3.      Town/City/County (IF authority to grant special exception has been given by board)
                                                            v.      Guidelines for the deciding entity
1.      Legislature may delegate power, but some “guidelines” must be established.
a.       An ordinance requiring a Board of Zoning Appeals to make determinations of health, safety, welfare requirements of community and to assess the characteristics of the surrounding property when making decisions to grant zoning exceptions was an unconstitutional delegation of legislative authority (Cope v. Inhabitants of the Town of Brunswick)
                                                                                                                                      i.      whether the proposed uses would “adversely affect the health, safety or general welfare of the public” or “alter the essential characteristics of the surrounding property” (not sufficient guidance)
                                                                                                                                    ii.      BALL SAYS — but in most jurisdictions, language would be okay
2.      Delegated power may
a.      Allow discretion (i.e., will it adversely effect neighborhood or property value?)
                                                                                                                                      i.      If discretion, the board may still deny permit even if applicant meets all criteria
                                                                                                                                    ii.      Crooked Creek Conservation v. Hamilton County N. Board – area allowed gun club w/ special exception. Board denied application, despite compliance w/ ordinance standards
1.      Board may deny permit if substantial evidence supports their conclusion
2.      Here, testimony of health effects to be shot w/ lead; testimony about adverse effects to property values
b.      Does not allow for ANY discretion (if criteria satisfied, permit granted)