ZONING AND THE CLASSICS
POLICE POWER – the power of the state govt to regulate human conduct for the benefit of/in order to protect the general health, safety, welfare and morals (HSWM) of the public.
Zoning – a PP that is vested in the leg branch of govt and that branch is authorized to delegate to municipalities the power to adopt zoning ordinances
Ordinances are a valid exercise of PP. For an ordinance to be declared uncx it must be clearly arbitrary and unrx having no substantial relation the public health, safety, or general welfare. Euclid
Az. ordinance must bear a rational relation to the general HSW of a city in order to be held valid. Nectow
Z. must conform to a comprehensive general plan. Z. ordinances must: Udell
be accomplished in a proper, careful and rx manner
conform to an entity’s general dev policy
be consistent w/the fundamental rationale of the entity’s zoning law and map
Z. must be done “in accordance w/a comprehensive plan.” HRS § 46-4 (County Zoning Enabling Act), Udell
ZONING DISTRICTS
A z.o. consists of two parts:
1. text – a)zoning district standards b)provisions for change c)nonconformities d)definitions
2. map – Delineates various use districts a)residential b)commercial c)industrial
Leg bodies may make such classifications as they deem necessary so long as their classifications are based upon rx grounds so as not to be arbitrary or capricious they will not be upset by the courts. (Rx Basis Test) Pierro
A z.o. is insulated from attack by a presumption of validity, which may be overcome ONLY by a showing that the ord is clearly arb, cap or unRx, or plainly contrary to fundamental principles of zoning or the zoning statute. Court deference to Leg acts. Manalapan
FLEXIBLE ZONING
Different classifications w/n a zoning district are permissible as long as they are rx, and as long as similarly situated property receive the same treatment (uniformity). Rumson
ZONING ADMINISTRATION
· Permit granting process – quasi-judicial/administrative since only 1 applicant, affecting 1 property, with possible effect to other properties, but does NOT affect the entire community.
· Special use permit – requires hearing, which cannot be eliminated (constitutional right to due process)
· Kinds of hearings –
o Legislative (NO constitutional right to be heard since regarding health, safety, welfare for everyone and doesn’t matter what you think.
o Quasi-judicial/administrative – have right to be heard and cannot be eliminated!
· Quasi-judicial administrative appeal – no new evidence allowed (referendum/initiative)
· Legislative determination – can bring in new evidence.
Z. Amendments are legislative acts. Rezoning a single parcel of land (spot zoning) is valid if it furthers the general pan and benefits the entire community. Bartr
ne facts and make decisions based on those facts in accordance with the law. A ministerial act means there is no decision left to be made. Swire
Variances can be vacated by a court if they are granted in violation of the due process rts of aggrieved neighbors. Olson
SUBDIVISIONS
Courts will not recognize antiquated subdivisions b/c of a lack of process in consideration of HSWM or the public. Gardner
A developer has a vested right for a subdivision on the date when a Tentative/Preliminary Map (Admin/Quasi-Jud act) is approved before the governing body. Approval of a Final Map is a ministerial act. Youngblood
HI: Sketch Plat, Tentative Plat, then Final Plat for Subdivisions before Plng Commission (No HI cases on point to Youngblood) ZBA can’t grant subdivision through variances
The govt can require the construction of roads and other essential infrastructure as a condition for subdivision approval. Brous
A comprehensive plan with a thoroughfare map reserving areas for future roadway construction is a valid exercise of PP if it subsx advances a state interest. But it may not be immune to a takings claim. Palm Beach
