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Land Use
Seton Hall Unversity School of Law
Martin, Robert J.



Talked about the administrative procedures


Today we are talking about how state govt can affect planning and zoning…

Zoning and planning are governmental actions
-most of the decision making is done at the local level…the power the locals have to make land use decisions is given to them by the states…the locals that make the decision are municipalities (i.e. cities, towns, boroughs, villages, etc.)….the municipalities are incorporated and are given police powers (i.e. the right to allow the municipalities to make local laws, ordinances, for the health, safety, moral, and general welfare of its citizens
-the state can supersede local land use decisions but municipalities are given the right to make most land use decisions

The Federal also has some power in land use…they were given certain powers by the states in the Constitution
-this power cannot be easily changed or superseded by states
-1st amend is applicable: ex. Can a municipality stop somebody from putting a giant blow up doll on its front yard
-5th amend is applicable: No property shall be taken without just compensation
-14th amend is applicable: due process clause and equal protection clause is applied to decision making at the state and local level

MLUL: Municipal Land Use Law in NJ

How local decision making is made:
-local govt’s have three important entities:
1) governing body: elected officials who are permitted under state law to pass ordinances through their police powers…allowed to pass ordinances for zoning and planning
2) planning board: two responsibilities:
a) develop a master plan (i.e. comprehensive plan) which is a plan of the entire municipality
-this is basis for the governing body to enact zoning ordinances
b) hears individual development proposals:
1) subdivisions: someone taking a piece of property and chopping it up
2) site plans: laws that deal with the site itself such as what type of building, sewer lines, roads, etc.
3) zoning board of adjustment: quasi judicial…permitted to consider exceptions to the local ordinances…two types of exceptions
a) use variance: different use than what is permitted in the zone
ex. You want to build a two story house in a zone that only permits one story homes

Ambler Realty sought facial invalidation of zoning scheme on substantive due process grounds
A zoning ordinance is constitutional unless its provisions are clearly arbitrary and unreasonable and have no substantial relation to the public health, safety, morals, or general welfare
·with substantive DP you are making the argument that the law is arbitrary and capricious
·Ambler challenged the ordinance itself…they argued the ordinance is inherently unconstitutional because it is denying someone of their property without Due Process…the argument is that this law was not for the safety and welfare of the public but instead was to favor some people’s interests over others…challenged on the basis that the police power would be extended to far if municipalities were given the right to zone
·Martin says it is very hard to claim that certain business uses rise to the level of nuisance
·the court says that in upholding this, that certain types of uses may not be a nuisance per say, but they could be “nuisance like” if put in the wrong place
-ex. Putting a pig in a barber shop
·the court says that the police power is broad enough to allow for the seperation of uses in this case
·the court said the actions in this case are ok under the US Constitution


Exclusionary zoning: lists the uses that are permitted and if a use is not listed then it is not allowed in that zone
-prevalent in most municipalities today

Procedural DP: emphasizes the procedures behind a fair cause of action with respect to decision making
Substantivie Due Process: ask whether the rule is irrational…arbitrary and capricious

·plain is arguing that he can not get much business building houses there because it is next to a Ford plant and close to the railroad tracks….he is saying it is beyond a detriment in value, instead he says it is reducing its value to zero
·what is the standard for deciding whether this is improper?
-DP clause of the 14th

Last week we focused on regulatory takings….

Under the fifth amend if something constitutes a taking you are entitled to just compensation

The Mugler case stands for the fact that sometimes the government can interefere withy our property without giving you compensation
-in the subsequent case (the coal company case) the court says the coal company is entitled to some form of compensation…the court says you cannot go mining under someone else’s property if it causes sink holes

Land can be separated into people who own the surface of the land and people who own what is under neath the surface (such as the coal company)

Penn Central v. NY: ad hoc balancing test….they balance the benefits vs. the burden on the developer…in order for the developer to claim he is entitled to compensation must show some of the things listed in this case
-argues for the fact that the court is generally going to look at this cases on a case by case basis and conduct a balancing test
-TDR: Transfer Development Rights
-by you selling your air rights to “X”, “X” will get a bonus on how high her will be allowed to go

·if permanent regulation deprives owner of all economically viable use of land, then it’s a taking
-NOTE: unless there is something in the common law that says by allowing you to use the property as u want to causes some type of public hazard….if this is the case then you will not be compensated

Loretta case: because this is a permanent invasion she is entitled to compensation…if even a small piece of property is subject to takings, then you are entitled to compensation…she gets $1

Lucas is another form of the exception: if they take all of the economic value, you are entitled to compensation