PUBLIC LAND USE
Zoning- General
Theory
Theory:
To prevent harm from incompatible uses by dividing a city into zones. Modern zoning also regulates uses to achieve public benefits to max. the tax basis.
Pre-Zoning:
Private Covenants
An Agreement among private owners.
Problems:
à required too many people to agree
à really only worked when single owner imposed Covenants by deed
à Hold outs (won’t agree unless paid)
àFree rider (let others do work and pay)
Nuisance Law
Problem
à Reactive and Risky
à couldn’t prevent the harm form happening, had to sue AFTER nuisance arose
à outcome of suing uncertain (cts might not see it your way)
Zoning Types:
Euclidean
àIncreasing levels of restrictions with less offensive uses also permitted in the zones with more offensive uses.
àZoning will be held unconstitutional when it is arbitrary and unreasonable and having no substantial relation to the public health, safety, morals and general welfare.
àLess offensive uses are permitted in zones with more offensive uses.
Non-Euclidean
àCluster zoning: uses completely divided so that no residential/farm may be built in industrial use area
àPlanned unit developments: more density of structures permitted with open space around them.
Authority:
Police powers: right to enacts laws that protect and advance
àHealth
àSafety
àWelfare
àAnd Morals of the community
Enabling acts: State statutes that allow local Gov’t to create own regulations
àRequired to enable leg. (municipalities must create):
àPlanning/zoning commission of experts and ordinary citizens to develop a plan and specific ordinances
àComprehensive plan stating goals to be achiever through the zoning ordinances
àZoning ordinance implementing the goals (must be approved by local counsel)
àBoard of adjustment/zoning appeals- to consider requests for variances/exceptions to the zoning ordinance.
Aesthetic Zoning
Euclidian standard of review
Deferential standard- strikes down only if arbitrary and unreasonable (does it effect the public health, safety, or welfare?)
Watch for vagueness
Free speech vs. zoning
Hierarchy (Euclidean)
___________
Least offensive
Most offensive
Single family residential
Two-family Residential
(or higher use)
Multi-family residential
(or higher use)
Commercial Uses (e.g., Stores)
(or higher purpose)
Light industrial Uses (e.g., Computer assembly)
(or higher purpose)
Heavy Industrial Uses (e.g., Steel Manufac
antial detriment to zoning plan if variance is granted.
Conditional Use Permits/Special Exceptions
àThe theory is that certain uses can peacefully coexist with their neighbors when specified conditions occur.
àThe board of adjustment is empowered to determine whether the conditions specified in the ordinance are met.
àDiffers from Variance in that a variance seeks something that is PROHIBITED by zoning ordinances.
àEX:
Nursery school in residential zone, so long as there are parking spots and only 30 students
TJSL
Spot Zoning
àSpot zoning is an invalid exercise of a local authority’s zoning power because it undermined zoning laws.
àWhile zoning regulates the land use in whole districts, spot zoning makes exceptions for parcels within a district.
àA local zoning authority may seek to amend it’s zoning ordinance. If it amends it’s z.o. but only for a single parcel within a district, and the parcel has a different land use characterization than the surrounding districtè spot zoning
