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

I.                 INTRO TO LAND USE LAW
§       Society Objectives:
·       Reducing sprawl, providing transit-oriented mixed use, building walkable neighborhoods to reduce the traffic congestion, and make urban, suburban, and rural environments more livable, sociable, and sustainable
·       At the same time, the law must address how to affordably house lower and moderate income families and bring jobs and housing together to improve the quality of life for all
§       Also known as “judicial zoning”, available when legislative controls are absent
·       Especially in un-zoned rural areas
·       The shortcomings of nuisance law in dealing with population growth and land development illustrate the effectiveness of zoning and other legislative controls
§        Private/Public
·       A private nuisance involves an invasion of the interest in the enjoyment of land (BOVE; neighbor-to neighbor disputes)
·       A public nuisance involves an interference with the rights of the public (drug house operations)
§        Per Se / Per Accidens
·       A nuisance per se, or, at law, is conduct that is a nuisance itself (the sale of illegal drugs)
·       A nuisance per accidens is otherwise lawful conduct that is wrongful bc of the particular circumstances of the case (where it is located)
o     Ex – halfway houses are not nuisances per se, but they could be nuisances when located in residential areas
§       BOVE V. DONNOR HANNA COKE CORP (coke company)
·         Not entitled to relief because she voluntarily moved into the district, fully aware of the fact that it was an industrial district and that the atmosphere would constantly be contaminated by dirt, gas and foul odors.
o       In addition, the business was being conducted in an approved and expert manner, and was supported by zoning regulations.
·         Generally, an owner is at liberty to use his property as he sees fit, without objection or interference from his neighbor, provided such use does not violate an ordinance or statute.
·         An owner will not be permitted to make an unreasonable use of his premises to the material annoyance of his neighbor if the latter’s enjoyment of life or property is materially lessened thereby
·         Whether a use constitutes a nuisance or not is a question of fact, determined on a case-by-case basis, and is basically about whether it is reasonable for the ∆ to be doing what he is doing where he is doing it (ex – funeral homes in residential areas are often found to be nuisances)
o       To constitute a nuisance, an inconvenience must not be fanciful, slight or theoretical, but certain and substantial, and must interfere with the physical comfort of the ordinarily reasonable person.
o       Weigh the gravity of the harm against the utility of the use
§         Harm factors
·         The character of the harm, the social value of the use invaded, the suitability of that use to the character of the area
§         Utility factors
·         The social value of the use, the impracticality of avoiding the harmful invasion, the suitability of the use in the area
§       HADACHECK V. SEBASTIAN (firing bricks)
·         Even though operation of a brickyard was not a nuisance per se, it was within the city’s police power to regulate brickyard operation so long as the resulting ordinance was not arbitrary or discriminatory
o     Most LU decisions are made at the local level, and usually involve the local zoning ordinance
§       Localism: local govt retains control over land use
·       Generally, courts applaud the virtues of local autonomy
·       Downside – localism reflects territorial economic and social inequities and reinforces them with political power
·         A local ordinance must find its justification in some aspect of the police power, asserted for the public welfare
·         Consider the circumstances and the locality
·         Courts often hold that the exclusion of buildings devoted to business, trade, etc., from residential districts, bears a rational relationship to the health and safety of the community
·         The power of a local ordinance is not unlimited: For a zoning ordinance to be declared unconstitutional, its provisions must be clearly arbitrary and unreasonable, having no substantial relation to the public health, safety, morals, or general welfare.
§         **NEC

fact or facts arrived at from distinct alternatives presented at a hearing, and where the decision can be functionally viewed as policy application, rather than policy setting, are in the nature of quasi-judicial action.
·         Where any of several zoning classifications is consistent with the plan, the applicant seeking a change from one to the other is not entitled to judicial relief absent proof the status quo is no longer reasonable. It is not enough simply to be “consistent”; the proposed change cannot be inconsistent, and will be subject to “strict scrutiny” to insure this does not happen.
o       Ballot Box Planning
§         In some states, the people can use initiative and referendum powers to carry out or veto zoning changes
·         The predominant use of this “ballot box zoning” is to prevent growth that the legislative body would otherwise allow
§         Pros:
·         It is the essence of direct democracy
§         Cons:
·         Using it may serve to mask illegitimate exclusionary zoning, may render planning efforts superfluous, and may undermine the due process rights of property owners who are subjected to the fancy of voters
§         Eastlake v. Forest City
·         The referendum is a means for direct political participation, allowing the people the final decision, amounting to a veto power, over enactments of representative bodies, and does NOT violate Due Process when applied to a zoning ordinance
§         Cuyahoga Falls v. Buckeye Community Hope Foundation
·         Provisions for referendums demonstrate devotion to democracy, not to bias, discrimination or prejudice
·        The people have the power to govern through referendum with respect to any latter, legislative or administrative, within the realm of local affairs
¨   CA’s General Plan
o       Lesher Communications v Walnut Creek