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

I. Zoning and the Rights of Landowners:

a. Substantive Due Process – State’s Police Power to Regulate Land Use:

i. When does the States Police Power violate the Due Process of the individual landowners? So long as the gov’t is not contradicting other constitutional rights provided the police power is a valid means of enforcing gov’t regulation.

1. Village of Euclid v. Ambler Realty

a. Validated Land use ordinances and Planning for towns

i. Analyze using Rational Basis

1. will be upheld if reasoning is “fairly debatable” and not arbitrary or capricious.

2. Nectow v. City of Cambridge

a. Cuts against Euclid: when there is no safety, public health, morals or general welfare reason why this would be zoned a certain way then its invalid as zoning is “arbitrary and irrational exercise of power.”

3. Stoyanoff v. Berkeley (ugly pyramid house)

a. Case authorized architectural review:

i. aesthetic objectives in zoning are permissible when coupled w/ the city’s interest in promoting “general welfare” and maintaining property value.

ii. General Welfare regulationà includes regulating for Aesthetics.

4. Kuvin v. Coral Gables (pickup truck not allowed to park on streets)

a. City cannot use its police power to create this rule, it infinges upon the individuals personal choice too much. Discriminates against a persons lifestyle choice in motor vehicle. Therefore, no rational basis for the rule.

5. Anderson v. City of Issaquah (Architecture Review – Store Front didn’t fit in w/ town )

a. Ordinance was “Void for Vagueness.”

i. (1) No reasonable owner could design a storefront to comply with the rules. (2) Those who determined the rules were very subjective in judgment. The rule violates the police power b/c gives too much discretionary judgment to board members could lead to abuses.

b. Equal Protection Clause – Line Drawing and Class of One Claims:

i. EP – can be “differential treatment” claim; or “disparate impact” claim

1. Under Rational Basis:

a. 1) Presumption of constitutionality of the town ordinance.

b. 2) court only interfere if “no substantial relationship to public health, safety, morals or general welfare” exists.

c. 3) Burden is on the challenger to rebut the presumption in favor of the town.

2. Layne v. Zoning Board of Adjustment ( Discriminatory Line Drawing )

a. ∏ brings a differential treatment claim.

b. Rooming home v. Boarding home? Whats the difference

i. Use Rational Basis no suspect class – defer to gov’t unless no reasonable relationship to regulating safety, morals, general welfare.

c. Boarding home – Sufficiently commercial regulation is ok.

i. There is a rational relationship here – town wants to regulate commercial businesses and boarding houses are commercial on the basis of “lodging and meals” whereas the rooming house just provides rooms and is not commercial.

3. Village of Willowbrook v. Olech (Discrimination against a landowner “class of 1”)

a. EP claim – ∏ doesn’t allege to be part of a group or class. 33ft easement required by town compared to 15ft easement for everyone else. Claim based on ∏ being singled out for different treatment than similarly situated individuals. Ct. found no rational basis for this different treatment.

b. Here the “ill will”/intentional element was not addressed nor determined necessary in order to state a EP claim.

4. Flying J v. New Haven (“class of 1” – Large truck stop – ∆ in zoning ordinances)

a. Court states must show 3 things to successfully assert the “Class of 1” claim:

i. 1)Intentional treatment different than others,

ii. 2)Rationality – ordinance lacks any rational reasoning,

iii. 3) Ill will – the town only enacted ordinance b/c of ill will towards the ∏. (we only get to this step once that it is shown that there is not rational reasoning for the rule. If the rule is hypothetically rational, the court wont even look or care to take in to consideration the animus portion of the ∏ argument).

b. Here the ∏ skipped step 2 and concentrated only on the ill will. Ct. denied them as such.

c. Takings Clause:

i. It is clear that when the government physically seizes property (as for a highway or a park, for example) that it will have to pay just compensation. It is also clear that serious, sustained physical invasions of property (as in the case of low overflying aircraft, for example) require payment of compensation equal to the difference between the market value before and after the invasion. The difficult cases are generally those where government regulations, enacted to secure some sort of public benefit, fall disproportionately on some property owners and cause significant diminution of property value.


1. Eminent Domain Power à Physical Taking [must be for a “public use”; take for building a road, post office, etc…the term “condemnation” is used for the transferring of title from private landowner to the gov’t]

2. Police Power à Regulatory Taking [issuing regulations, not physically taking away property]

a. Why must the government compensate if there is no literal taking?

i. Protect against government abuses. Due Process, and Equal Protection.

ii. Even when rational and legitimate regulations. The IMPACT on the owners may be too great. (at 100% diminution in value then it becomes an actual taking even though the owner retains title.)

iii. Spirit – undue burden when the public as a whole should bear the burden rather than the individual (Armstrong v. U.S.).

iii. Nuisance Regulations

1. Mugler v. Kansas (early interpretation Takings – Nuisance)

a. “public” Nuisance regulations are NEVER a taking! Regulation of alcohol as a control of a public nuisance is completely valid. ∏ could still use the land to run some store unrelated to alcohol.

les, and the legislature has decided it constitutes a noxious use à it is a taking.

d. Here the state took 100% of the value, and did not show a public nuisance existed, by Lucas erecting his homes. The state is required to compensate Lucas for the regulatory taking.

3. Palazzolo v. RI ( Tensions between Penn Central and the Per Se Lucas/Loretto)

a. RI passes law that says any predecessor in interest cannot challenge any zoning law b/c they take property with notice of such law.

b. S/C this rule must fail b/c:

i. (1) such a principle would make the constitutionality of a regulation a matter of the passage of time, thereby creating a “[statute of limitations]” on a constitutional right;

ii. (2) such a principle also prejudices owners at the time of regulation, whose ability to transfer the land has become seriously impaired; and (

iii. (3) such a principle would create different and unequal rights between different classes of owners (old owners and new owners).

c. Palazzolo’s taking claim was not sustained by the court b/c there was not 100% diminution in value. Some of his land was still able to be developed.

4. Tahoe-Sierra Preservation v. Tahoe (Moratoriums on Development)

a. Is a moratorium that last a few years a takings that requires compensation?

i. Use Penn Central and not Lucas for this analysis

1. Penn Central – doesn’t allow for conceptual severance, look at property on the whole. Cant sever into different pieces of time. (∏ would argue during moratorium there was 100% taking).

2. Lucas is improper to use – utilizes conceptual severance of time. Is there a total deprivation of economic value during the period of moratorium

ii. Not a taking that requires compensation – practical reasons

1. Cant treat all as per se taking, gov’t would never be able to do anything. Moratoria are regularly used. Gov’t cannot compensate every time a short mortatoria is used. Otherwise moratoria would be a “luxury that few gov’ts could afford.”

2. Policy reasons also: if this is a taking then every time a moratorium is put into place in order to plan the development of an area, then officials will either rush through the planning process or skip it altogether fostering growth in the community that is either ill-conceived or inefficient. (so they wont have to pay the class of people they are depriving through the taking)