LAND USE PLANNING—HAWKINS FALL 2017
Intro:
Real estate law answers who owns this prop, land use asks what can you do w/it.
Balance between regulating how land is used to make communities better and US Const that allows people rt to use prop as they wish.
Based On Local Govt And Politics:
Decision makers typically laypeople/volunteers.
Political- they pay attention to identity of developers, form personal relationships; less skilled at identifying relevant facts and law.
Land Use Is Real Estate Development- Builds Our Cities:
Timing matters—if request is litigated, it is a failure no matter the outcome.
Markets change over time- supply and demand of development.
Want to meet the market where the market is.
Real estate development costs money to hold on to and not develop.
Option k and interest expenses cost a lot over time.
We Have Been Regulating Use Of Land Since Colonial Time:
Governors plan for Manhattan- drew a city w/o regard to existing structures, still evident today.
Plan for Savannah- ogerlthorp designed a ward= series of blocks w/park in middle and long blocks around N and S and smaller ones in middle E and W.
CL Actions:
Private nuisance;
Trespass to land (ineffective);
Public nuisance;
Defeasible fees (less success);
Restrictive covenants.
Zoning & Planning NEVER Replaces Private Nuisance, Servitudes, And Public Nuisance.
These fill in the gaps of zoning and sometimes allow neighbors to impose greater restrictions on themselves than govt requires.
PRIVATE NUISANCE
Common Law Action:
A use of land that unreasonably and substantially interferes w/another’s use and enjoyment or real prop.
Link between substantially & causation.
Need a close, geographical connection to bring private nuisance action.
Value of land depends on location and relation to other land, so to permit others to do whatever they want with their land would render land useless.
Combo of torts (wrongful conduct) and prop (use and enjoyment of land).
Landowner subject to nuisance action for a land use—such as operating a pig farm—if that land use is unreasonable.
Several Limiting Doctrines:
Reasonable Man Doctrine:
Looks at sensitivity of the party whom the nuisance bothers.
Could preclude a nuisance.
Complaining person must have reasonable disposition, be in ordinary health, & possess normal sensibility.
If person is MORE sensitive than is typical, then the doctrine makes the land use LESS likely to be a nuisance.
Beckman v Marshall:
D’s operate a daycare next to P who operated a hotel of sorts. P’s are elderly, other neighbors aren’t annoyed. Outside time is limited and supervised; everything is being done to minimize noise.
Unrestricted zoning area. P’s allege private nuisance bc of noise.
Big idea- using your prop in way that injures rights of your neighbors.
Subjective to figure out when something is a nuisance and not just annoyance.
TEST= don’t take ppl as you find them, judge them all by uniform standard = reasonable man.
Must judge reasonableness of person bothered.
Effect of the condition on ordinary persons w/reasonable disposition in ordinary health possessing average and normal sensibilities.
Counterargument:
They are operating a business so it might be their patrons that are bothered.
H: Annoyances are incident to living in a civilized state and generally annoyances are not considered a “legal right” which can be brought before Ct of equity.
An act in itself not wrongful, but done wrongfully.
Balance between 2 competing issues (prop autonomy and not injuring others) shifts based on public perception and societal changes.
Reasonable under circumstances – People living in organized communities give up some inconvenience/annoyance in order to be compensated with living in an organized state.
Reasonable Use Doctrine:
Must determine the reasonableness of the use of land from the circumstances of each instance.
Reasonable Man = Sensitivity of the P.
Reasonable Use = Conduct of the D.
Factors:
Whether person is using due care and skill (taking reasonable action to minimize annoyance);
Whether use is allowed under zoning regulations;
Whether use is similar to others in area;
Whether use is consistent w/existing policy of community (comprehensive plan);
Whether use is beneficial to local economy/community;
Whether use is consistent w/prevailing social norms (env, social equity).
Lee v. FL public utilities:
P’s own fuel oil business and live out of building in industrial area (not zoned for that but other businesses were industrial- would affect the remedy).
D’s operate electric generating plant that is not a bother, but recently installed box cars that vibrate, produce noise and odors, are noxious, smoke stacks are too short, and P’s can’t even conduct their business bc of noise, had to shout, beds and cabinets shaking.
When one elects to live in industrial area, he cannot complain of noise or noxious odors that are of normal operation of those kinds of businesses.
I: Was D’s act a reasonable use of the prop?
In industrial areas, reasonable use often places a greater burden on neighbors.
H: P est. prima facie case, and case will go to jury to decide if use was reasonable, whether D has done everything reasonable required to minimize noise, odor, vibration, and whether there was any damages.
Considerations for jury: is this industrial? Did they arrive upon it? Are they doing what they can to minimize. All these add up to Q’s- is this a reasonable use?
Public Nuisance:
Land uses that significantly interfere with public health, safety, comfort, or convenience are designated public nuisances: unreasonable interferences with a “right common to the general public.”
Unreasonable Use:
When large-scale interference is proved by evidence produced by the P’s; or
When the conduct is proscribed by a duly enacted law, ordinance, or administrative regulation.
LOCAL GOVERNMENT LAND USE POWERS
Police Powers:
Land use regulations are enacted under the police power delegated by the state to the local legislature.
Authority that allows local govts to regulate the use of land.
Power is inherent to STATES, not to local govt.
Includes all things necessary to protect the public.
Includes regulations enacted to protect the public health, safety, wel
d, etc) adopts and amends the zoning law (legislative function).
Then delegates to an admin agency the authority to review site plan, subdivision, and special use permit applications (admin function).
Then board of adjustment hears appeals from the zoning admin or grant variances (QJ function).
*** Important bc each has different standard of review and degree of procedural protections for each.
Example:
Before construction or remodeling must get building permit, must show that proposed construction is in compliance w/zoning law and other LU regulations.
If proposed development is NOT in compliance w/use and dimensional requirements of zoning law, then permit must be denied.
Denial can be appealed to board of adjustment, which can reverse officer’s interpretation of zoning provision if in error, OR landowner can ask board for use or area variance.
If proposed development complies w/zoning law but requires some special permit or other approval, applicant will be referred to the appropriate admin agency for its review/determination.
Land Use Planning v. Zoning:
LU / CP is a statutorily mandated legislative plan to control and direct the use and development of prop.
Plan is likened to a constitution for all future development w/in the govt boundary.
Zoning is the means by which the CP is implemented and involves the exercise of discretionary powers w/in limits imposed by the plan.
Legislative Decisions – Fairly Debatable Standard:
The Nature Of The Local Govt Decision Is Policy Formation.
Making policy/creating new standards or policies.
Adopting or amending zoning laws.
Fairly Debatable Standard:
Local Govt Policy Decisions On LU Regulation Satisfy DP Clause UNLESS Such Provisions Are:
Clearly Arbitrary & Unreasonable;
Connection between regulation and PP MUST be plausible (low bar).
Having No Substantial Relation To The Public Health, Safety, Morals Or General Welfare” (Euclid).
Substantial relation is low bar bc PP’s very broad.
Alleged connection between the local govt’s regulation and the PP must be plausible.
One’s expectation that regulation will have intended outcome must at least be rational.
Deference Given To Leg Decision (Commission or Council):
Bc subtle distinctions in time and place often make a use inconsistent/consistent w/community standards.
“IF the validity of the leg classification for zoning purposes be fairly debatable, the leg judgement MUST be allowed to control.”
***If its rationality is fairly debatable, let it stand bc of deference.
