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Land Use
Santa Clara University School of Law
Glancy, Dorothy J.

Land Use Outline
Tools of Land Use
I.   Nuisance law
A.     Land Use Control Device 
1.Definition: unreasonable interference with the use or enjoyment of land 
2. Bove v. Donner-Hanna Coke Corporation
a) π sued the coke plant for private nuisance because the operation of the plant deprives her of the full enjoyment of her home (dust, soot, dirt)
b)       Under nuisance law and the facts of this case, the court had to balance the rights of the property owner and the necessities essential to the prosperity of the nation
(1)                rights of property owner: tan owner will not be permitted to make an unreasonable use of his property to the material annoyance of his neighbor, if the latter’s enjoyment of life or property is materially lessened thereby
c) The court found for the coke plant
(1)                Residents of industrial centers must endure w/o redress a certain amount of annoyance and discomfiture which is incident to life in such a locality; such inconvenience is of minor importance compared with the general good of the community
d)      Whether such use is reasonable under all the surrounding circumstances
(1)                Must balance the rights of the π against the utility of defendant’s harm
(a)                         Plaintiff’s harm
i)  character of the harm
ii)            the social value of the use invaded
iii)          the suitability of that use to the character of the area
(b)                         Defendant’s utility
i)  Social value of the use
ii)            the impracticability of avoiding the harmful invasion, and
iii)          the suitability of the use in the area
(2)               It’s generally a question of fact
(a)                         i.e., what might annoy one person won’t annoy someone else; what might be a disturbance in one area would be unnoticed in some other place
(3)                the nuisance must be certain and substantial, and must interfere with the physical comfort
3. Funeral parlors
a) Many courts find that these are nuisances b/c they impose psychological injury
4. Eyesore
a) Plaintiffs that complain that something is ugly usually will not find relief in nuisance law
5. Types of nuisance
a) private
(1)                basically anyone who has been annoyed
b)       public
(1)                Standing is more stringent than private but injunction is more likely to be granted
c) per se (by itself)
(1)                i.e., selling drugs
d)      per accidens (in fact – acts that are otherwise lawful but wrongful b/c of the particular circumstances of the case [where it is located])
B.      Inadequacies
1. couldn’t deal with problems brought by growing population and increased land development
a) Zoning creates standards for land uses that are generally harmonious, in the legislature’s opinion, with the character of the zoning district, while private nuisance actions allow individual lot owners to prove to the court that a permitted use affects a nuisance in the particular circumstances of the plaintiff’s land
C.      Rise of planning and zoning
1. Hadacheck v. Sebastian – USSC in 1915
a) A brick kiln which was once legal was made illegal through a zoning ordnance to zone the area for residential area
(1)                The court held that the zoning ordinance was valid because progress could not be slowed for the benefit of private interests
(a)                         the now residential vicinity had not moved to the nuisnace but rather had been carried along with the organic development of the city into the kiln’s neighborhood
b)       Even though zoning may make a particular action lawful, it is no defense to an activity that otherwise interferes with the use and enjoyment of a particular neighbor’s property
II.                 General Plan 
A.     Definition:
1. It creates a blueprint for the future development and preservation of a community
a) guides the physical and economic development of the muni, and accommodates social, environmental, and regional concerns
b)       resembles a series of goals and policies that are then used to guide future land use regulations and decisions, including zoning and subdivision
B.      Content
1. general statement of goals and objectives, principles and policies, and standards upon which the land use decisions are to be made 
2. Udell v. Haas, COA NY, 1968
a) Village of Lake Success in Nassau County, almost entire neck was zoned for business
(1)                One parcel of land in this neck in question; The zoning amendment placed the entire neck as a resident category
(2)                Court held that the ordinance was invalid b/c rezoning was discriminatory and that was not done in accordance with the comprehensive plan
(3)                                                                Comprehensive plan is the essence of zoning
(a)                                                 it is the insurance that the public welfare is being served and that zoning does not become nothing more than just a Gallup poll
(b)                                                 It also protects the landowner from arbitrary restrictions on the use of his property
i)  To prevent state powers to excuse all sorts of arbitrary infringements on the property rights of the landowner, there must be showing that the changes does not conflict with the community’s basic scheme for land use
(c)                                                 Rezoning cannot conflict with the comprehensive plan and its fundamental land use policies and development plans for the community
b)                                                                              CA requires that each planning agency prepare and each legislative body adopt a “comprehensive, long-term general plan”
(1)                                                                Definition of comprehensive plan
C.                                                                                                      Amending the Plan
1. the adoption of the plan is a legislative act requiring action by the local legislative body to become effective
D.                                                                                                      Consistency Doctrine – the plan as a constitution for growth
1. Since the requirement that zoning be in conformance with the plan is statutory (SZEA), the failure of a zoning law to conform to the plan is beyond the authority of the locality to adopt (or ultra vires) (so land use regulations are often challenged as “not in accordance with a comprehensive plan)
2. Various views of jurisdictions
a) Some jurisdictions reject the idea that any planning document or planning process was required
b)                                                                               Some jurisdictions would adopt the general plan but often seen as non-binding guides
(1)                                                                interpreted “in accord with” means nothing more than a demand that zoning laws be reasonable
(2)                                                                some courts declare that the planning necessary to implement a comprehensive zoning scheme need not be reduced to writing; it may be found in the ordinance itself
c) Rest of the jurisdictions requires that the general plan must be followed

1)                     It’s a traditional right through direct legislation to override certain legislative decisions
(2)                     invalid if voting was presented to only a limited number of citizens in the community
(3)                     valid only when applied toward a legislative action
(a)      type of action (legislative v. quasi-judicial) should be determined substance over form (J. Scalia – popular vote is not an acceptable method of adjudicating the rights of individual litigants)
(b)     and even if legislative, must avoid spot zoning (J. O’Connor)
(4)                     The city will not be held to be violative of EPC of the 14th Amendment if the citizens were given the right to vote and even if the citizens displayed discriminatory behavior, so long as the City did not endorse such views – Cuyahoga Falls
(a)      The referendum is a basic instrument of democratic government and government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable
F.                                                                                                       Zoning ad other land use controls are the legal tools that implement the land use plan
1. Zoning addresses, among other things, the dimensional aspects of land use and the allowable uses of land in various locations
2. Subdivision and site plan laws address more specific design and infrastructure details for proposed land development projects
3. Constitutional and other legal requirements that ensure land use plans and laws will not result in discrimination or violate other importante protections including private property rights, free speech, etc.
III.                                                                                                               Zoning – meant to carry out or implement the GP (gives the bite to the GP)
A.                                                                                                      Authority
1. state delegates the authority to the local governments and the local governments can only act within the limits provided by the delegation – cannot act outside of the delegated authority
a) Homerule – cities governed by charters
b)                                                                               general law – muni get their authority under various state statutes (zoning enabling act)
c) Important Roles
(1)                                                                planning boards (planning comm) – recommends zoning, reviews/grants applications
(2)                                                                zoning board of appeals – reviews plan comm decisions
(3)                                                                county legislature or city council, etc. – legislative function
(a)                                                 adopts and amends the zoning law
B.      Zoning constitutional – Euclid