Land Use Outline

Land Use

1) Background principle of zoning is nuisance law
a) Bove- coke making case. P could not get injunction bc locking in a certain use would not allow for change.
2) Land use planning
a) Hadacheck- The brick manufacturers claim that prohibiting them to make bricks on the premises completely devalues the property. The court says that the property was not 100% deprived in value. This case is about expanding the police power.
b) Euclid- govt can use the police power to regulate for health, safety, and wellness regardless of whether what is regulated is a nuisance
i) TEST
(1) zoning has to have a substantial relationship to public health, welfare, morals, safety, general order. Burden of proof for this prong is that the zoning purposes be “fairly debatable.” (not necessary they take the least restrictive means, just that exclusion is justified)
(2) cannot be arbitrary
c) Nectow- struck down under fairly debatable test.
d) Udell- The court concluded that the rezoning was not done in accordance with the comprehensive plan of the municipality, noting that the change was not the result of a deliberate change in community policy and was enacted without sufficient forethought or planning.
e) State Zoning Enabling Act and Planning Enabling Act- see notes
f) Pierro- The city adopted a supplemental zoning ordinance which expressly prohibited the construction within a certain area motels, motor courts, motor lodges, motor hotels, tourist camps, tourist courts, and structures of a similar character intended for a similar use. The court held that the classification was reasonable as a protection of the community’s general welfare where the area in which motels were restricted was a previously residential area. Case focuses on character of the community and property values, which are both legitimate uses of police power. Note- this argument works best in single family residential zones.
g) Manalapan Realty- home depot case- Defendant had a rational basis for prohibiting retail stores, like intervenor, from selling materials outside a completely enclosed building because it could have been aesthetically displeasing and was more likely to create fire hazards, litter, and dust. The ordinance was also consistent with the municipality’s land use laws.
h) Presumption of validity- challenger bears the burden of proving the ordinance is arbitrary or capricious or contrary to the public purpose it is allegedly promoting.
i) Rumson Estates- Municipalities were allowed to enact zoning ordinances that altered the non-mandatory definitions in the MLUL. In regulating the intensity of land use, a municipality could adopt not only a floor area ratio based on the relationship between the lot and buildings, but any other ratio that advanced a goal of the MLUL. When applying the uniformity principle, the reasonableness of the classification was the key.
3) Structural constraints on the development of property
a) Height and bulk (or area)
b) Control of this began before control of uses
c) 4 main tools of control
i) Setback (from lot line)
ii) Minimum lot size
iii) Minimum frontage (avoidance of weird shaped lots)
iv) Impervious cover limits
d) Height control
i) Floor/area ration (FAR)- given a particular area of the lot (ex. 5:1- 10,000 sq ft lot gets 50,000 sq ft building area.
ii) Gross area is total lot
iii) Net area is buildable lot
iv) Some places now have height limits based on reference point (motivated by view)
e) Alternate ways of zoning
i) Overlays- add specific restrictions that are issue driven- not susceptible to easy depiction through the text of the ordinance.
ii) Buffer zones- example is residential preservation area (like between Live Oak and 1-10)
iii) Performance zoning- show the committee your plan, then they score it on a basis of certain criteria- zones are defined by certain scores- if you fit in the score you can go in no matter what you are doing.
f) Methods of zoning changing
i) Amendments
(1) Actually changing the map
(2) Bartram- Cannot rely on the zoning of other properties. Legislative decision
(3) Floating zones- place a floating zone over a residential zone where business may potentially pop up. Commission would decide whether to allow floating zone to drop over a particular property. When you drop the floating zone down on a specific property, you actually change the zoning of the property- it is rezoned.
(4) Fasano- quasi judicial decision- need a record
(a) TEST-in small scale rezoning situations, the city (the one advocating change) must prove there is public need for change and this change fits that need (also must still fit with the comprehensive plan)
ii) Special Uses
(1) Might be appropriate for area but have to go to the board for permission
(2) Almost always quasi judicial
(3) Doesn’t change zoning, just gives permission for one specific use.
(4) Gorham-def wanted to make SFR into MFR. The court held that: (1) the ordinance gave sufficient guidance to a conditional use applicant as to what facts must be presented to gain the board’s approval and to the board in its examination of the proposed use; (2) the homeowner’s constitutional challenge failed because the maintenance of property values was a legitimate interest served by zoning restrictions and because the ordinance specifically required the board’s determination of the effect of the conditional use on property values; and (3) the findings of the board were adequate and were based on substantial evidence in the record and did not constitute unsubstantiated opinion.
(5) SUMMARY:
(a) Legislative decision
(i) Violation of police power (nope)
(ii) Criteria void for vagueness (due process) (nope)
(b) If legislature delegated authority to non-elected board to make decision
(i) improper delegation (delegation doctrine) (nope)
(ii) Bias (PDP) (nope)
(iii)In