LAND USE
FENNELL
Local Politics
· Fischel
o “long-term residence by both renters and homeowners is an important factor in community participation.”
· Michelman
o Public Choice Model
§ “all substantive values or ends are regarded as strictly private and subjective….majority rule arises strictly in the guise of a technical device for prudently controlling the transaction costs of individualistic exchanges.”
o Public Interest Model
§ “Majority rule is experienced as the natural way of taking action as and for a group or as a device for filtering the reasonable from the unreasonable, the persuasive from the unpersuasive, the right from the wrong, and the good from the bad.”
§ “many judicial opinions implicitly embrace a public interest model of municipal politics.”
Planning Process
· Meyerson and Banfield
o Planning is the articulation of goals and the rational consideration of various courses of action for achieving those goals
· History
o Burnham (Chicago Exposition architect) said in early 20th century: “make no little plans. They have no magic to stir men’s blood.”
o Comprehensive land use planning began really in the 1950’s
o Now planners focus on shorter time horizons of at most 25 years, and focus more specifically on next 5 years
§ There is no magic to stir the blood though. Planning has become very procedural, rational.
Judicial
· Nuisance
o Private
§ Nontrespassory invasion of another’s interest in the private use and enjoyment of land
§ Only liability for nuisance for “significant” harm “of a kind that would be suffered by a normal person in the community or by property in normal condition and used for a normal purpose.”
ú NOT insignificant impacts, insensitive plaintiffs
§ Invasion must be either “intentional and unreasonable” or unintentional but legally prohibited
ú See restatement of torts § 826
· A. Gravity of harm outweighs utility of actor’s conduct
· B. Harm caused by conduct is serious and the financial burden of compensating for this and similar harm to others would not make the continuation of the conduct not feasible
§ Restatement of Torts § 827-28
ú Lists factors to balance for nuisances
ú Few courts find aesthetic nuisances though
§ Restatement of Torts § 829 (Conduct Malicious, Indecent)
ú An intentional invasion of another’s interest in the use and enjoyment of land is unreasonable if the harm is significant and the actor’s conduct is
· (a) for the sole purpose of causing harm to the other or
· (b) contrary to common standards of decency
ú see Christie v. Davey (malicious conduct case)
ú see Mayor of Bradford v. Pickles (rightful conduct)
· both cases deal with spite leverage (extortion)
o Ellickson Article
§ “In any community, observers empirically establish standards of normal conduct for repetitive activities.”
§ “the proper tagging of an externality should change as normal conditions change.”
o “Ancient Lights” Doctrine
§ American courts reject doctrine that landowners can acquire prescriptive easement of uninterrupted light and air (accepted in UK)
o Spite Fences
§ Burke v. Smith
ú “a neighbor is entitled to relief from a fence or structure that landowner built on account of malice toward the neighbor, provided that the structure is totally lacking in other
e subjects himself to no liability.”
· H:
o There was no harm done to Tigers just like no harm done to Cubs, and club doesn’t have exclusive viewing rights to game
Background
Zoning:
· Power is derived from the local government which creates planning commissions and boards of adjustment
· Planning Commission
o Recommends “Comprehensive Plan” if required and Zoning Ordinance to the City Council
o Also recommends amendments
· Board of Adjustment (Appeals)
o Considers application of zoning ordinance to individual parcels of land and may grant variances and special exceptions
· City Council
o Enacts zoning ordinances and amendments
Typical Land Dispute
· 1. Developer
· 2. Neighbors
· 3. Local Government
o whichever side the local government takes, the other has a right to suit for damages or in equity
Zoning Arguments by Landowners
· 1. The restriction being challenged is inefficient from a social perspective;
o based on Due Process claims requiring zoning to be reasonably related to a legitimate government objective
· 2. It is unfairly burdensome or disruptive of settled expectations, and
o based on Equal Protection and Takings Clause
· 3. Violative of the landowner’s or developer’s civil liberties
o based on Due Process and Takings Clause