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Land Use Planning
University of Alabama School of Law
Elliott, Heather

 
LAND USE PLANNING OUTLINE SPRING 2018
PROFESSOR ELLIOTT
 
INTRODUCTION
 
JUSTIFICATIONS FOR REGULATING LAND USE
Consistency
Preservation of property values
“Average reciprocity of advantage” (on average, solves people’s problems)
Force landowners to internalize externalities
Public health and safety
Quality of life, walkability, access, etc.
Aesthetics
Conservation values (often brings in federal interest)
Anticipating future needs
Exclude “undesirables” in terms of uses/people
 
HISTORICAL/COMMON LAW APPROACH
Reliance on nuisance law
Test: Weigh harm to the plaintiff against utility to the D and determine what is reasonable
Issues:
Unpredictable
Allowed nuisances to develop
Could in theory ask for declaratory judgment, but tool has limited utility since unpopular
Costs more for everyone to involve
Harder to fix once built
Deadweight loss
Injunction was only available remedy (difficult to, e.g., shut down a key contributor to economic development)
Later, permanent damages became available as a remedy (nuisance creator “bought out” anyone suffering harm)
Litigation also burdensome, expensive
Inconsistent framework, even with precedential effect
Can only bind parties to litigation (judges decide only the cases before them)
Limited consideration of long-term issues
Another option under common law (as for pollution): Sue for trespass
Note this is currently how we deal with these issues on an international level
 
 
 
 
 
 
 
 
MODERN APPROACH
Movement from judicial to legislative/regulatory approach
 
Judicial
Legislative
Retrospective
Prospective
Adversarial
Multivalent (many factors)
Few people
Many people
Circumscribed judgments
Broad-ranging inquiry
Narrow
Open-ended search for the best answer
Rights-focused
Includes policy considerations
Binds only parties
Binds everyone
 
Alternative: Private agreements
E.g., restrictive covenants
Modern zoning emerged around 1900, regulatory takings doctrine in 1922
 
RISE OF ZONING
Failure of nuisance law
Industrial revolution (not knowing how to deal with new and emerging issues)
Progressive health movement
Immigration and population pressures
Exclusionary in addition to beneficial regulation
Emergence of building technology/skyscrapers (originally wide masonry)
Flow of light and air
“City beautiful” movement (parks, aesthetic regulation, etc.)
 
ZONING AND PLANNING ENABLERS
Herbert Hoover: Standard Zoning Enabling Act
Desire to harmonize approaches that various cities and states were taking
Model law; most states have now adopted some version of it
Otherwise, no federal statute governing zoning
Empowering localities to zone (via SZEA or other)
Dillon's rule (AL): Locality must be expressly endowed with authority to exercise it (have to have a statutory “hook”)
Home rule: Locality has the authority to do what it needs unless forbidden specifically to do so
E.g., states looking to expand fiber/cable may want to take away from municipalities to ensure better quality of service (PA/Comcast)
States increasingly taking a role in planning, promoting consistency and holistic planning
OR and HI: States that govern land use planning at the state level
 
ALIGNMENT WITH PLANS
SZEA § 3 broadly says that zoning regulations should be made in accordance with a comprehensive plan
May apply in general plans vs. area plans (neighborhoods) vs. specific plans (mixed use development) vs. regulating plans (provide a broader regulatory framework)
Issue arises because plans are not self-implementing
Issues may involve rezonings, or granting of individual discretionary permits
 
APPROACHES TO RECONCILING PLANNING AND ZONING
Majority rule: No need to plan, and even if required, not binding
BRIAR MEADOWS DEVELOPMENT, INC. V. SOUTH CENTRE TOWNSHIP BOARD OF SUPERVISORS (2010): P sought to rezone property on which it held an option from Ag to C/I on the basis that the zoning ordinance was inconsistent with the comprehensive plan. After a hearing, the Board denied this application. The state's MPC provided that inconsistency with such a plan is not a proper basis for invalidating such an action. A comprehensive plan is a useful tool for guiding growth and development, but it is by its nature an abstract recommendation for land development. A zoning ordinance is the “end product” of these efforts. Even though no binding force, useful in providing contextual information even if not constraining zoning decisions.
Modified rule: Don't have to have a plan, but absence of one may cause court to be suspect. And, if you do have a plan, you must follow it.
UDELL V. HAAS (1968): Developer had property on either side of a road. In one, he intended to open a bowling alley. The neighbors were upset, and on the day his permit application was filed, the zoning board changed the tract’s designation from commercial to residential to prevent the development, wiping out $260K of value. The high court held that the ordinance was invalid and was not done in accordance with the comprehensive plan of the village, as statutorily required. The planning process should be more than a rationalization of foregone conclusions (as it was when the city brought in an expert after the fact. The recent change was undertaken hastily and without consideration of development principles, or the village's general developmental policy. Finally, it would be difficult to find a more fitting area for commercial purposes. For any changes, need to redo the plan vs. changing the ordinance.
Emerging rule (FL/CA): A plan is mandatory and must contain certain elements/cover certain topics.
The plan is the constitution governing later land-use legislation
If you want to do something differently, must amend the plan itself
NASSAU COUNTY V. WILLIS (2010): Owners and prospective developers submitted a proposal to change an area's designation from wetlands to Planned Unit Development. The process included a delineation, which found that the purported wetland areas were actually uplands. After consideration regarding consistency with the comprehensive plan, the Board recommended redesignation of the upland area as low-density residential. Ps, opposing adjoining landowners, argued that deference to a local government's interpretation of a comprehensive plan was not proper. The court held that the redesignation was proper per the terms of the comprehensive plan's policy, which holds that properties that are not jurisdictional wetlands can be developed.
ISSUES WITH LOCAL GOVERNMENT
Much more susceptible to pressure
“Outraged voters”
Corruption, inside dealing
 
TYPICAL LAND-USE REGIME
Plan, including zoning districts
In places where plan is binding, plan will presumably be adopted by ordinance (can be advisory or mandatory)
Map
Ordinance and map together create
Use restrictions
Area restriction
Height restrictions
Permitting process
Many actions are forbidden unless properly permitted
Permit process includes more planning
Variance process
Don't want it hitting any one developer too hard (safety valve)
Appeals process
 
CLAIMS
Causes of action:
Due Process
Equal Protection
Takings claims
Standards of review
Generally, rational basis (low bar, in general vs. as applied):
Legitimate goal (even if not actual goal)
Rational connection to achievement of that goal
Really, all you need is a rational reason to treat as such
 
LEGISLATIVE VS. JUDICIAL ACTION
Typically legislative:
Plan and map
Rezoning
Typically judicial:
Permits
Variances
Appeals
Difficult to draw the line in some cases between legislative and judicial actions
 
EUCLIDEAN (USE) ZONING
Residence, business, industry, subdivided many times
Typically, use, height, and area
Zoning pyramid, highest value for property owner is SF residential
U1: Single-family housing
U2: Multi-family housing (2)
U3: Apartments, hospitals, clubs
U4: Offices, retail
U5: Laundries, stables, billboards
U6: Sewage plants, dumps, prisons
Modern zoning codes have more
Cumulative zoning (Euclid): As you go down, all above uses are permissible
VILLAGE OF EUCLID, OHIO V. AMBLER REALTY CO. (1926): Facial challenge. P owned a tract of land adjacent to residential plats on the east and west sides. D adopted an ordinance establishing a comprehensive zoning plan, due in part to concerns about industry moving in. It used a cumulative use system, as well as height and area restrictions. P’s land was partitioned in terms of the types of uses that were permissible on it and prohibiting the development of industry. P sued, alleging that the ordinance violated the Fourteenth Amendment and the Ohio Constitution by depriving him of liberty and property without due process, reducing the land’s value by 75% and deterring potential buyers. The high court held that the zoning ordinance was valid. Zoning might be over-inclusive, but so are other conduct-prohibiting laws, and it may not be arbitrary/must bear a rational relation to the community's health and safety. Zoning arguably does this.
NECTOW V. CITY OF CAMBRIDGE (1928): As-applied challenge (tougher standard, would have been OK under RB). P entered into a contract to sell his land to a purchaser who wanted to use it for commercial purposes. Before the sale, D passed a zoning ordinance that placed a 100 foot wide strip of his property under residential zoning restrictions, and the purchaser reneged on the contract. P sued, seeking an injunction ordering the city to allow the construction of any type of building irrespective of the ordinance. The court held that the lack of a valid basis for applying the ordinance to the land violated the Fourteenth Amendment. Because of the industrial and railroad uses of the adjoining properties, the limited use the ordinance prescribed made little sense. The power of restricting uses is not unlimited and may not be imposed when it bears no relation to public health, safety, and welfare.
An ordinance can be constitutional on its face but not as applied.
 
 
USE AND AREA CLASSIFICATIONS
 
GENERALLY
Use districts separate R/C/I
Each primary use has an accessory use
E.g., commercial businesses and parking lots
E.g., residential homes
Driveway, garage, pool, tool sheds, domestic animals, in-home work consistent with residential character of neighborhood (at-home psychiatry practice, one client at a time, etc.)
NOT racing pigeon coop, farm animals, in-

tial zones: Airports, gun clubs, homeless shelters, mining
Typical guidelines
Use will not materially endanger public health and safety
Will not substantially injure value of adjoining property
In harmony with area located
Meets any pre-stated conditions
Conditions, e.g., for a school athletic facility:
Parking rules
Timing rules
Lighting
Access limits
Pay for construction of access road
Conditions, e.g., for a group homes:
Traffic regulations
Safety (security, hospital care)
Cap on number of supervisors/residents
Architectural controls
Off-street parking
No signs
Fences
PEOPLE’S COUNSEL FOR BALTIMORE COUNTY V. LOYOLA COLLEGE IN MARYLAND (2008): D bought land in Baltimore County for use as a spiritual retreat. Zoning law did not permit, as of right, the use of the property as a school or a college, church, or camp. D applied for and was granted a special exception. A group of citizens appealed the decision based on impacts on the land, light pollution, issues with water supply and sewage, and thermal impacts on a local stream. They also argued that D was required to prove there were no other locations in the property’s zone where the proposed use would have less of an adverse effect than on the property’s local neighborhood (the ordinance provided it could not be detrimental to the health, safety, or welfare of the locality. The court held that a comparison of the adverse effects of a proposed use at a proposed location to the effects at other locations in the same zone is not part of the required analysis for special-exception applications. A conditional exception was fine as long as appropriate conditions and safeguards were in place. There was no need to do a zone-wide analysis, CC had already done this, decided compatible in this zone. All the zoning commission needed to do was decide whether it met conditions as set out by legislature. They were permitted as special exception as a college
 
THE “ZONING GAME”
Players:
Property owner/developers seeking development
City deciding, extracting, cheerleading, mediation
Neighbors resisting development
Hierarchy:
Zoning inspector > board of adjustment > court
Planning staff > planning board > city council > court
 
CONDITIONAL ZONING
 
GENERALLY
Is it OK for a municipality to impose conditions in granting a rezoning?
Others can do as of right ANYTHING else that the zone permits (may not be what you had hoped or expected)
E.g., residential to commercial, could get nice boutiques or vape shops
If you anticipate this issue, may circumscribe what is allowed (e.g., no big chains)
Rezoning concerns:
Cannot “sell off” police powers
Cannot predetermine outcome
Different if no actual promise, town is free to change mind in response to citizen concerns.
Related improvements or mitigation, by contrast, are generally accepted
Presumption that legislative actions are valid, can only strike down if
Arbitrary and unreasonable
Substantially unrelated to the public, health, safety, or general welfare
DURAND V. IDC BELLINGHAM, LLC (2003): A town attempted to rezone a parcel as industrial to promote growth of its tax base but didn't have the votes to push it through. D wanted to build a power plant in the town but needed the town to rezone the parcel of land on which it intended to build. D agreed to make an $8 million gift to the town for a new high school if it voted to rezone the land, and the town voted in favor of rezoning. Nearby landowners sued seeking a declaratory judgment that the rezoning was void because it constituted illegal contract zoning. The high court held that a voluntary monetary offer by the party that stands to gain from a rezoning vote does not, standing alone, invalidate the vote. Although it went beyond a mitigation measure, the adoption of the ordinance served a valid public purpose. There was no reason to invalidate a legislative act on the basis of an extraneous consideration standing alone, since the court defers to legislative acts and choices without regard to motive. Reasonably related to growing tax base.
Considerations that impacted decision
No binding agreement
Town was free not to rezone at the meeting
Public benefit
Deference to legislature