Select Page

Land Use
Temple University School of Law
Baron, Jane B.

Jane Baron, Land Use Planning Book Outline, Fall 2014
B.  Nuisance as a Land Use Control Device
Nuisance law is sometimes referred to as “judicial zoning” for when legislative rules are sparse.
·         Most common in unzoned rural areas
Nuisance—can’t use your property in a way that injures another’s rights to their own property
·         No unreasonable uses of premises that materially annoy neighbors
Bove v. Donner-Hanna Coke Corp.
Facts: A Coke Factory began operating in the neighborhood long after Buyer bought her home. Steam from the Factory carried dirt and soot into Buyer’s home and cause her poor health. She sued, claiming the Factory was a nuisance.
Issue: Were the Coke Factory’s activities a nuisance capable of being enjoined?
Held: No, they were not a nuisance. The area was never fitted to be a residential district, and had traditionally been used as an industrial site. Buyer knew before she moved in that she might be subjected to dirt, fumes, etc. because she chose to live in a city and not the country.
·         Whether something is a nuisance is a question of fact, and depends upon whether it is reasonable given the surrounding circumstances.
o   A nuisance must be certain, substantial, and interfere with the physical comfort of a reasonable person
·         Industrial operations are not typically nuisances when conducted in areas specifically set aside for their operation.
Keep in mind that, when the Buyer moved in, there was a hickory grove next door to the Buyer.
·         When she moved in, the zoning statutes had not yet even been enacted . . . always look at TIMING when you read land use cases.
o   You should always also be wary of how a court characterizes land . . . The land the Buyer bought really could have easily been a residential. It wasn’t as clear cut as the court suggested
·         The court relies on the fact that factories are necessary for cities because they produce jobs and economic health. Thus, you can’t expect the quiet of the country if you choose to live in the city.
Basically, nuisance is a balancing test: Balance the gravity of the wrong against the utility of the conduct
·         Thus, nuisance really isn’t very predictable at all. Zoning was meant to address this unpredictability
Nuisance. A nuisance is an unreasonable interference with the use or enjoyment of land. The harm against the plaintiff must be weighed against the public utility of the defendant’s actions.
·         Planning looks forward, while nuisance looks back
·         Planning involves the whole community, while nuisance only involves the litigants
·         Planning is general, while nuisance is specific
·         Planning is predictable, while nuisance is not
Farming and Nuisance. Some residential areas developed around farms and were successful in having them shut down for nuisance. After that, all states passed “right-to-farm” acts, immunizing certain farm operations from being declared nuisances.
Aesthetic, Emotional, and Psychological Injuries. These sorts of claims against neighboring land use generally aren’t actionable (i.e., losing your view of the river isn’t actionable).
·         Must actually be a physical harm occurring
·         Yet some courts allow aesthetics-based claims where diminution of value can be shown. See Foley v. Harris, (allowing aesthetics-based claim where prospective purchaser of plaintiff’s lot lost interest because of wrecked cars lining defendant’s lot).
Evolving Nuisance Laws. Nuisance law can evolve to meet conduct that has only recently emerged as harmful.
Nuisance per accidens. While a nuisance per se is an action specifically characterized by law as a nuisance, a nuisance per accidens is a legal action that is only a nuisance because of the specific circumstances surrounding it.
·         Activities that are licensed or permitted by statute cannot be a public nuisance.
·         A private nuisance involves an invasion of the interest in the enjoyment of land, while a public nuisance involves an interference with the rights of the public.
o   An action could be both or neither
Shortcomings of Nuisance Law. Nuisance law has proved inadequate to address problems brought by a growing population and increased land development. Many developers are hesitant due to nuisance law’s unpredictability.
·         Nuisance law also cannot address cumulative harm (i.e., smoke damage from tons of smoke-producing operations nearby. Can’t be addressed because you can’t pinpoint the exact operation causing the damage).
D.  Planning As the Critical Tool for Framing Land Use Controls
            2.  The Centrality of Planning
Udell v. Haas
Facts: There were two roads that cut through town in this shape: + (from top left: quads 1, 2, 3, and 4). Landowner owned land in quadrants 2 and 3, both of which were zoned for business uses. The town tried to rezone all the quadrants as residential based upon whether they were west or east of the vertical road.
Issue: Was the rezoning constitutional?
Held: No, it was not, because it was “discriminatory” and not done according to the town’s “comprehensive plan.” Here, Landowner’s building was located in a portion of town that been zoned for business for over a decade. Straying from that showed the town clearly strayed from its “comprehensive plan.”
·         To be valid, zoning must be in accordance with a community’s “comprehensive plan” for development.
o   Policy: Following a plan shows that the community had some foresight about potential problems that might occur, and that its zoning laws aren’t capricious or arbitrary. Additionally, it protects landowners from abusive uses of zoning laws.
o   Look at whether the decision was rushed; whether they appropriately considered all the issues with zoning changes; etc. to decide if it actually followed the comprehensive plan.
·         Look at the totality of the circumstances to decide what the comprehensive plan actually is.
o   Look at zoning maps; expert testimony; current land use; etc.
Model Land Development Code (MLDC). In response to the unpredictability of zoning laws, the American Law Institute released the MLDC, which integrates zoning and subdivision regulations and streamlines the development permission process.
            3.  The Comprehensive, General, or Master Plan
Both Florida and California have laws establishing mandatory elements of a comprehensive land use plan.
Chapter 2—Zoning: Classic to Contemporary
A.  Local Zoning: The Classics
Although some view zoning as “quintessentially local,” localism sometimes reinforces economic and social inequalities through political power.
·         Regional problems are often addressed by regional special purpose districts. These districts are typically formed to provide water, transit, waste disposal, and education
o   Unfortunately, these districts have added to the problem
1.  The Classic Cases
Village of Euclid , Ohio v. Ambler Realty Co.
Facts: City of Euclid enacted a zoning ordinance, which would have forced Appellee to use his land for residential, and not industrial, purposes. This change would cause Appellee to lose loads of money (~75% of his value). Appellee sued, claiming the ordinance deprived him of property without due process.
Issue: Was the ordinance constitutional?
Held: Yes, it was.
·         While the police power justifies zoning ordinances, the same ordinance might not be equally constitutional in different settings—e.g., a town as compared to a rural area.
o   An ordinance’s constitutionality is circumstantial.
·         An ordinance is still valid even if it excludes more than it needs to be enforced, so long as it’s reasonable
·         The court claims excluding certain buildings associated with trades and businesses from residential areas has a “rational relationship to the community’s health and safety”
o   Separating residential, business, and industrial buildings will mak

mary focus is development, not planning
·         Only Florida has really embraced it.
Home rule authority. Some states, like California, grant police power directly to counties and cities. Thus, they have a broad, but not unlimited, power to zone. This home rule authority is granted by statute in some states.
·         Where home rule authority exists, local ordinances CANNOT conflict with state law
·         But in some states, home rule authority does not confer zoning power
B.  Base Zoning: Uses, Flexibility, and Design
            2. Use Districts and Area Requirements
Pierro v. Baxendale
Facts: Plaintiff’s property was in an area zoned for one-to-two family houses and apartment buildings, as well as “boarding and rooming houses.” When Plaintiff wanted to build a motel, he was denied. Shortly afterward, the local legislature enacted an ordinance completely forbidding motels in the district. He challenged the ordinance.
Issue: Could the zoning ordinance legally allow boarding and rooming houses but not motels?
Held: Yes, it could.
·         It depends upon the characteristics of each zone. Here, it was a residential. While rooming and boarding houses still looked like houses and could discriminate against guests, motels didn’t look like normal homes and could not legally decide who could stay. Moreover, motels were businesses and public in character.
o   Thus, allowing motels could threaten property values and destroy the “beauty” of the residential.
o   Maintaining beauty and/or property value is part of the general welfare, so zoning laws can be used for that.
·         Zoning choices are presumptively valid and can only be nullified upon showing they are unreasonable, arbitrary, or capricious.
o   i.e., there must be a rational relation between the regulation and the service of the public welfare that is within the reach of the police power.
·         Whether something is or isn’t allowed depends upon the characteristics of the place where it is proposed.
Dissent: Zoning law should not be based in nuisance. That said, because there is no functional difference between a motel and a boarding or rooming house, the ordinance is arbitrary, unreasonable, and discriminatory. The ordinance should be struck down.
If there’s any traction to the town’s argument, it’s that a motel might not be a “dwelling,” which was the only thing permitted by the statute.
·         But all the other parts of the statute, which focuses on the commercial nature of rooming/boarding houses, seem to indicate that motels would be an OK use of the land
Pierro is important because it shows that, when the town doesn’t like a proposed use, it either reinterprets the definition of what it’s allowed, or it simply amends the ordinance to exclude the disfavored use.
·         The court here looks more toward the “spirit” of the ordinance—the underlying idea behind it. The court decides the legislature always intended to exclude the motels
It’s odd that the court interprets the previous ordinance to ban motels . . . when it clearly does not.
·         If the motel was permitted when Pierro applied . . . he would have a vested right to build a motel even after the new amendment.