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

1)      ZONING BEFORE Euclid(p. 87)
a)      Lochner era (1905): less deference to decisions of legislature. Required tighter fit between means and goal.
i)        Common Arguments – failure to futher legit. public purpose, no close fit between leg. goal and means, interferes with common law rights
b)      1916 NYC zoning ordinance: purpose to protect 5th Avenue retail sales area from Eastern European garment workers in industrial areas.
c)      Standard State Zoning Enabling Act (SZEA):
i)        Approved by Hoover in 1926
ii)      Authority for the creation of use districts
iii)    Height and bulk restrictions
iv)    Empowered local governments to adopt land use regulations “for the purpose of promoting health, safety, morals, or the general welfare of the community.
v)      Some state courts rejected as violative of substantive due process
a)      Zoning valid under rational basis standard of review. Village of Euclid v. Ambler Realty Co. (S. Ct. 1926) (Sutherland) (p. 89) pg 1,2 of notes
i)        Facts: Municipality adopted comprehensive zoning ordinance. π’s property zoned for multi-family. π wants to use it for more lucrative industrial.
ii)      Issue: Facial challenge to ordinance – substantive due process and equal protection claims (vs. as applied challenge).
iii)    Holding: Zoning ordinance upheld.
(1)   Substantive Due Process claim: Rational relationship standard of review – deferential. Compares industry to noxious use – reasonable to regulate even prophylactic regulation as in this case.
(2)   Equal Protection claim: Apartments are “parasitic.” Rational basis for treating them differently than other residential uses.
iv)    Reasoning: To be invalid must be “clearly arbitrary and unreasonable, having no substantial relationship to the public health, safety or general welfare.”
a)      General Differences between legislative and judicial acts:
Requires notice and opp’y to be heard under PDP
Does not require notice or hearing b/c generally applicable under PDP
Less deferential standard of review – requires substantial findings and evidence
Deferential standard of review – arbitrary and capricious
Narrow in scope, focused on individuals
Open-ended, affecting lots of people
Application of general rule
Formulation of general rule
Initiative process not available
Initiative process available
No immunity
b)     Courts disagree on whether rezonings are legislative or judicial.
i)        Some courts say Quasi-Judicial
(1)   Rezonings a quasi-judicial function. Snyder v. Board of County Commissioners (Fla. 1993) (p. 392)
(a)    Facts: π wants land rezoned. Planning Dept. and Planning Board both recommended the rezoning. Commissioners rejected w/o giving any reason. Π argues decision arbitrary.
(b)   Holding: Rezonings quasi-judicial
(c)    Distinguishes 2 types of zoning:
(i)     Changes in policy of wide spread applicability – legislative.
(ii)   Rezoning particular parcel based on existing general policy – quasi judicial.
(d)   Differences between legislative and judicial:
(2)   Rezonings need adequate record w/ findings of fact. Fasano v. Board of County Commissioners (Or. 1973) (p. 396)
(a)    Facts: Commission recommended rezoning of parcel to allow for mobile homes. Neighbors objected. ∆ argues only can be overturned if arbitrary.
(b)   Holding: Ct. rejects rational basis standard. Rezonings judicial.
(c)    Adjudicative decisions require:
(i)     Opp’y to be heard
(ii)   Opp’y to present and rebut
(iii)Impartial tribunal
(iv)Adequate record w/ findings of fact to support.
ii)      BUT: California Rule: Rezonings legislative
(1)   Zonings and Rezonings are legislative.
(2)   Variances, conditional use permits, subdivision maps and other similar proceedings are adjudicative.
(3)   Arnel – any rezoning is legislative in CA
a)      Strict Scrutiny
i)        Burden of proof: burden on gov’t to justify ordinance.
ii)      Legislative motive: court willing to consider motive of the legislature. Look for compelling state interest.
iii)    Closeness of fit: Was the least restrictive means used to achieve the end?
b)     Rational Basis
i)        CASES that apply this standard: Euclid, Twigg, Cormier, Willowbrook, Berman, Hawaiian Housing
(1)   CASES that apply stricter version of this standard: Nectow
ii)      Burden of proof: Burden on the challenger. Ordinance is presumed valid.
iii)    Legislative motive: Court doesn’t care what the real reason or motive of the legislature was. Any conceivable rational basis will suffice – even if the legislature didn’t actually think of it.
(1)   BUT note that even under this standard courts sometimes will look to motive.
(a)    Example: Cleburne: court found that motive of legislature was based on fear of mentally retarded. Court struck down ordinance, even though using rational basis standard.
(2)   What’s NOT a legitimate interest: retaliation, down zoning to reduce value of land do city can later purchase, discriminatory, suppression of competition)
iv)    Closeness of fit: Generalizations permissible. Legislature granted reasonable margin of error.
(1)   Example: Euclid: over-inclusive method used, but still upheld.
v)      Great deference given to the legislature. Cormier v. County of San Luis Obispo (Cal. Ct. App. 1984) (p. 126)
(1)   Facts: ∏’s property down zoned shortly after he bought it. Value reduced by 75%. Evidence that decision could have been arbitrary.
(2)   Holding: “that such ordinances are presumed to be constitutional…If the validity…be fairly debateable, the legislative judgment must be allowed to stand.” Pg 128 block quote.
(3)   OUTCOME: Calif. has very lenient standard of review
vi)    BUT: Arbitrary decision will be overturned. Twigg v. County of Will (Ill. App. Ct. 1994) (p. 123)
(1)   Facts: As-applied challenge to county zoning ordinance. Evidence that original zoning as well as denial of application for rezoning arbitrary.
(2)   Holding: Though rational basis standard used and burden on the challenger, arbitrary zoning will be overturned.
(3)   Elements to determine whether ordinance arbitrary:
(a)    Existing uses and zoning of nearby property
(b)   Extent to which property values would be diminished
(c)    Benefit to promotion of health, safety, morals and welfare.
(d)   Relative gain to the public compared to burden on individual.
(e)    Length of time property has been vacant as zoned.
(f)    Suitability of subject property for the zoned purpose.
(g)   Care communi

concerned that all misapplications of zoning could be called EP violation. BUT this case can be distinguished b/c of retaliatory motive.
iv)    Constraint on use of zoning to limit competition. City granted immunity. City of Columbia v. Omni (S. Ct. 1991) (J. Scalia) (p. 141)
(1)   Facts: Zoning ordinance restricted billboard construction to benefit of one company and detriment of other. π argues that City acted in violation of Sherman Anti-trust Act and can’t receive immunity b/c action procedurally and substantively defective.
(2)   Parker Rule: 2 requirements for local gov’t to get anti-trust immunity:
(a)    Local gov’t exercising it’s power to regulate granted by the State, AND
(b)   Local gov’t acting under state requirement to constrain/displace competition.
(3)   Holding: City receives immunity. The Sup. Ct. broadened the Parker rule – It’s ok if suppression of competition is “foreseeable result” of what the statute authorizes.
v)      Constraints on Zoning that Threaten Freedom of Speech (p. 244)
(1)   First Amendment applies to state ad local gov’t through the DP Clause.
(2)   What to consider: What’s being regulated (commercial/non-commercial speech), in what manner (content neutral/not content neutral) and whether a particular viewpoint being discriminated against.
Content Neutral Regulation
Not Content Neutral Regulation
Commercial Speech
Low threshold/High deference – Valid if serves a gov’t interest and not an unreasonable limitation
Medium Standard
Non-commercial Speech
Medium Standard – Balancing test between 1st Amendment interests and gov’t interests
Strict standard of review – Presumptively violative of 1st Amendment
(3)   Can’t ban a unique and important form of communication entirely. City of Ladue v. Gilleo (1994) (Stevens) (p. 574)
(a)    Facts: π put a sign in window of her house against the Gulf War. City ordinance bans signs on private property ECEPT for sale signs and signs on commercial property. Purpose of ordinance for aesthetics, protection of property values and safety and traffic.
(b)   Holding: Court balances interests of first amendment and gov’t. Can’t ban a unique and important form of communication – medium of expression would be foreclosed w/ no adequate substitutes.
(c)    Rationale:
(i)     Speech (as opposed to conduct) being regulated.
(ii)   Gov’t not discriminating against a particular viewpoint, since nearly all sign are prohibited.
(iii)BUT not content neutral b/c of “for sale” sign exception.
(4)   ISSUES: Should protection be extended to aesthetics or artwork as expressions of speech?
a)      Rezonings by Administrative Bodies (p. 321)