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Land Use Planning
Temple University School of Law
Pagano, Celeste

Land Use Planning Outline
 
Local Government Law
 
Standard Zoning Enabling Act – SZEA
–          put out by Dept of Co mmerce to give states instructions
–          every state has adopted something similar
 
Municipal corps– cities, towns buroughs, get their power from the states.
 
“Dillon’s Rule”
3 powers
Express words – if the state says you can do it you can
Necessarily Implied in or incident to the powers granted
Essential or indespensible (as to accomplishing the express words)
 
ZONING
Zoning ordinance – legislative device for regulating land uses
 
Village of Euclid v. Ambler Realty – zoning – deference (RBT)
 
The exlusion of buildings devoted to biz, trade, etc, from residential districts, bears a rational relation to the health and safety of the community. Then lists the actual health and safety justifications. 
– If rational basis then valid – police power/general welfare
 
–          once a zoning ordinance has been properly enacted – strong presumption of legitamacy
–          the appropriate std applicable to constitutional challenges of zoning and holding that the test is whether the ordianance is clearly arbitrary and unreasonable, having no substantial relation to public health, safety, morals or eneral welfare. 
 
Nectow v. City of Cambridge – notes case that goes against Euclid
 
New zoning restriction as above – use restrition that divided guy’s property in half. But had a deal in the works to sell his property for commercial use. The zoning made half of his property a residential zone. 
 
Supreme Court said because of the adjacent industrial and railroad uses, the land was of little value for the limited uses permitted by the ordinance. Saving a little corner for residential use does nothing/does not make sense. Made them redraw the zoning line. 
 
Board of Supervisors of Madison County v. Gaffney – Special Use Permit
 
In a conservation zone. Nudist Camp – want special use perm from plann comm
 
Ct said that the use had to be specifically listed – nudist camp not specifically listed – thus illegal. 
 
Also no special use permit
 
Zoning ordinance is inclusive in that it specifies the uses that are premitted in each zone.   Use not specifically permitted in the zone is prohibited unless special use permit granted.
 
– Should focus on “recreatioal club or private club” and could still term it illegal
 
What could u do??
a)      ask for special use permit
b)      Apply for re-zoning
c)      Amend the zoning ordinance to say in X you can have Y
 
Non conforming uses after new zoning passed
–          allow non conforming uses to continue after the new zoning passed but restrict expansion of them and eventually require their removal
–          establishing valid non conforming use – use actually existed at time the zoning restriction became effective – landowner cannot race to make expenditures before regulatory action occurs to establish non conforming use – good faith requirement
o   non conforming uses essentially become vested rights
o   some states allow the natural expansion of the existing use, others will allow a change to a less offensive non conforming use
o   entitled to make normal repairs on the property
o   to retain the use – cannot alter the use
 
Covington v. Town of Apex – Spot Zoning
 
Owner wants a zoning amendment. Planning Board held hearing on rezoning application and voted to approve the zoning ammendment. Petitioners submitted a valid protest petition to the rezoning. 
–          zoning amendment considered a legislative act. What kind of deference does the court give to this act? – going to give a lot of deference, just need a rational basis.
o   Wording – has to be unreasonable or arbitrary for the change to be void. 
 
Court found that the zoning amendment was unreasonable and arbitrary. It is spot zoning.
 
Def of spot zoning – a zoning ordinance, or amendment, which singles out and reclassifies a relatively small tract owned by a single person and surrounded by a much larger area uniformly zoned so as to relieve the small tract from restrictions which the rest of the area is subjected.
 
Spot zoning not invalid per se – factors which are relevant to a showing of the existence of a sufficient reasonable basis for SZ.
a)      the size of the tract in ?
b)      the compatibility of the disputed action with an existing comprehensive zoning plan (if against the plan then will be void)
c)      the benefits and detriments for the owner, his neighbors and the surrounding comm (purely $ bens to owner – void)
d)     the relationship of the uses envisioned under the new zoning and the uses currently present in the adjacent tracts
 
Notes – Spot Zoning – label assigned when a small parcel of land is rezoned in a way that is not compatible with the general scheme (usually to the benefit of one owner). If a court finds spot zoning, it is illegal per se. 
 
–          have to look at the relationship of the proposed use to the uses currently present
 
Variances
Variance – owner can appeal to local zoning board for variance when use requirements do not allow a reasonable use and put an undue hardship onto the owner
–          has to be unneccessary hardship
–          some jdxns require practical difficulties
o   some say those are 2 diff things and u need to meet both/some say that these are basically the same thing…
–          exception should be in some sort of “harmony”
 
bulk

essential character of a locality
4)      hardship is not the result of the applicant’s own actions
 
–          some state law does incorporate a reasonable return on your property (reasonable use = reasonable return) – but not highest and best value
 
Special Use Permit
 
Use is allowed, but not as of right – only with a permit
–          legislature has deligated to the board the right to make these decisions
–          legislature must articulate a std to guide the admin body to say what conditions they are opposing and what harms they are concerned about
 
Administrative body grants it but under power given to it by the legislature
– Application to Planning Commission for special use permits
 
UINTAH Mountain RTC, LLC v. Duchesne County- Special Use Permit case
 
Want a special use permit to have a treatment facility in a residential zone. Conditional use permit.
 
Court stated that the use had to be compatible with the surrounding area
Cannot unduly burden traffic/Cannot invoke safety issues
 
Must meet the conditions of the statute
– board doesn’t really have discretion – if meet the code with the conditions – supposed to grant the permit
 
Standard – denial of use permit cannot be arbitrary/capricious – should be supported by substantial evidence
 
Compatible Use
a)      requires that the location of the proposed use be compatible to other land uses in the general neighborhood
a.       the land will be, while not residential, in harmony with much of the surrounding land
b.      it is a compatible use – at least evidence to the contrary not supported by substantial evidence – denial was arbitrary and capricious
 
Planning
– Function and duty of commission to make and adopt a master plan for the physical development of the municipality
–          accompanying maps, plats, charts,etc shall show commissions recs for the development of said territory, including the general location, character, and extent of streets, viaducts, subways, bridges, waterways, boulevards, open spaces, utilities, location of public property, infrastructure, – everything
–          use surveys and studies
 
P 198 – General Plan Evaluation Criteria