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Land Use
University of Illinois School of Law
Reynolds, Laurie Jo

Land Use
Fall 2011
Notes: Euclid à property owner can challenge a zoning restriction if the measure is “clearly arbitrary and reasonable, having no substantial relation to the public health, safety, morals, or general welfare”
Land Use Outline
Urban Myths
Nuisance as a Land Use Control Device
a.       Bove v. Donner- Hanna Coke Corporation
i.                     Facts = Lady wants coke factory next door shut down for Nuisance
ii.                   Holding =
iii.                  Nuisance
a.       Balancing Test:
                                                                             A.      Social utility (of factory)
                                                                             B.      Necessity
                                                                             C.      Coming to Nuisance (awareness of zone)
b.      Restatement:
                                                                             A.      Regarding Pl's harm, look at: 1) character of harm, 2) the social value of use invaded, 3) the suitability of that use to the character of the area
                                                                             B.      Regarding D's harm, look at: 1) social value of the use, 2) the impracticality of avoiding the harmful invasion, 3) the suitability of the use in the area
                                                                             C.      Is it useful for D to be doing what it is doing where it is doing it
c.       Differences with Zoning
                                                                             A.      Nuisance = case by case.  Zoning = large area
                                                                             B.      Nuisance = Response to Problem.  Zoning = prevent problems.
Rise of Planning and Zoning
a.       Hadacheck v. Sebastian
                                 i.            Facts =  City ordinance banned brick production in H’s backyard after it had
                               ii.            Holding = Within police power
                              iii.            Notes:
a) Pre – Pennsylvania Coal, ie before declared a Taking
b) Zoning power is extreme à kicks this guy out. Targeted at individual + specifically prohibiting behavior.  City thinking vision for city.
Map + Text (45)= Included in most zoning ordinances
·         Euclidian Zoning
o   Some uses guaranteed as a matter of right
o   Potentially acceptable accessory uses (swimming pool, garage, set back restrictions, height restrictions, FAR)
Overlay Zones =Applies in addition to underlying zoning classification.  Eg: Look at zoning map and see X is commercial with “environmental overlay” on top.
Buffer Zones = Waning in popularity bc only make sense in good old fashioned Euclidian zoning. (“separation of uses”)
·         Euclidian zoning – single family residence on the pedestal.  How do we protect single family residences?  Add a buffer, like apartment complexes.  Idea: gradual degradation of intensity.
·         Inconsistent with how we are thinking of zoning these days, i.e. mixed use + affordability
Performance Zones = Focus less on use-by-use, but totality of impact.  Focus more on similar uses.  Car emissions, etc.
Classification of Permitted Uses = and how you define similar uses.  How do you determine between similar use from prohibited use? Most zoning ordinance have principal use + accessory use (creates definitional problems, vagueness problems, abuse of power problems)
Height and Bulk Controls
Local Zoning
a.       Zoning = look for evidence of a plan and note early identification of zoning with protection of neighborhoods (prop value) and abandonment of connection with health/safety
b.      Village of Euclid, Ohio v. Ambler Realty (U.S. 1926)
                                 i.            Facts = Ordinance splits Euclid into different districts: U1-6, H1-3, A1-4.  Appellee’s land is in 3 different zones.
                               ii.            Holding = Zoning allowed under Due Process. (Law property advanced a public purpose and did not violate Pl’s constitutional rights under DP)
a)  Exception = If unreasonable in the future
                              iii.            COURT’s analysis
a) Avoid Nuisance
A.      (Does this belong here?)  Separates industrial from children à this is core of health, safety, and welfare
B.      Zoning challenges are extremely fact-specific – unlike this one which is a frontal challenge
b) Separate dangerous and non-dangerous industrial uses
A.      Eg: coal factory v. publishing house
B.      Speaks broadly
C.      Zoning includes “reasonable margin of error” (25) à zoning is not perfect line
c) Separate commercial and residential
A.      Less compelling, ie people are not in danger next to a corner store like they are next to chemical plant.  Why? “rational relation to health and safety; avoid confusion and danger of fire; repair of streets easier” (26)
d) Single family detached home best way to raise children
A.      Apartments = parasites
e)  Localism
A.      City can interfere with market forces, but not always.  Outer limit = public interest overweighs.
f) Deference to Legislature
A.      In regards to zoning. Burden on challenger. In close cases, zoning wins.
                             iv.            Lessons from challenges to zoning
a) Zoning will be inherently over-inclusive and under-inclusive
                               v.            Called a: facial attack bc challenged constitutionality of zoning ordinance as a whole
                             vi.            After this, adoption of uniform building and use standards within various land use districts became known as “Euclidian Zoning”
c.       Nectow v. City of Cambridge (U.S. 1928)
                                 i.            Facts = Cambridge divided into 3 zoning districts: residential, business, unrestricted.  Pl's land was going to be sold, but buyer backed out when realized most of land was unrestricted except for 100 ft locus which excludes business/industry (possibly used to widen street)
                               ii.            Holding = Zoning Ordinance violated owner’s Due Process (as applied) and constitutionally invalid bc it did not substantially advance a legitimate public purpose
                              iii.            COURT’ standard
a) Not going to invalidate local government zoning unless arbitrary + capricious
                             iv.            Notes:
a) Violate Due Process not  facially, but as applied to P’s property
b) Take away = Government zoning has limits.  Line drawing does not bear any substantial relation to public health + safety + morals + general welfare
Zoning Districts
a.       Pierro v. Baxendale
                                 i.            Facts = Couple's application to build a 27 unit motel is denied in district where residential district but allows boarding (6) house uses
                               ii.            Holding =
                              iii.            COURT:
a) Is it intent of 1939 Ordinance to exclude motels?
A.      Probably.  But city did not think to include it. On whom do we put failure of government?
b) If it is the intent of 1939 Ordinance, is it a legitimate use of the police power to distinguish motels from rooming houses?
A.      Ok to zone for morals?  How to distinguish from other businesses?
c) Can city exclude motels altogether with its 1954 Amendment?
d) 4 Reasons Why House/Motel Different:
A.      Proprietor deals with individual
B.      Rooming house less public
C.      Building themselves more compatible with R district
D.      Motel is more commercial
                             iv.            Notes:
a) Segregating between socio-economic property value “the way which are so constituted.”  Exclusion.
b) Stronger ground when:
A.      Make the thing as nuisance-like as possible
B.      Base argument on objective, extrinsic, land use impact
b.      Hernandez v. City of Hanford (California, 2007)
                                 i.            Facts = Hanford only allows sale of furniture in downtown commercial district.  Sales of furniture allowed in PC district if huge department store >50k ft2 with limited amt for furniture.  Small seller of furniture contest validity of zoning ordinance
                               ii.            Holding =  affirms provision bc 1) objective of preserving vitality of downtown, 2) objective of attracting large retail store to PC area.  Goal of economic effect for zoning FINE if authorized for valid public purpose (eg: Walmart v. City of Turlock = allows to consider urban decay when controlling economic competition)
a) Pl = invalid bc 1) primary purpose is to regulate economic activity/competition and 2) violates EPC
                              iii.            Rule = “So long as primary purpose is not for impermissible private anticompetitive goal of protecting/disadvantaging  a particular… business, but instead is the advancement of a legitimate public purpose- such as preservation of municipality's downtown business district for benefit of municipality of whole – the ordinance reasonably relates to general welfare of the municipality and constitutes a legitimate exercise of municipality's police power” (65)
a) Legal standard for zoning in California
                             iv.            Notes:
a) Due Process – How far can city go to preserve downtown? (How does city decide what is included and what is excluded?)
b) Economic Competition – Downtown decay an issue?
c) Equal Protection Standard:
A.      Using 1) rational basis, and 2) allowing city to split hairs
B.      Intersection of 2 legitimate goals = legitimate!
c.       Accessory Uses and Home Occupation

le devotion of a small area within a zoning district to  a use which is inconsistent with the use to which the rest of the district is restricted.  Consider 1) consistent with Comprehensive Plan, 2) benefits and detriments to owners + nbs +community, 3) size of area rezoned.  Invalid if not consistent with CP and for private gain.
c.       Bartram v. Zoning Commission of City of Bridgeport (Supreme Court of Errors of Connecticut, 1949)
                                 i.            Facts = Rome wants to change his property from (R) to Business Zone 3 to open grocery/bakeshop/beauty shop.  Commission approved. (Trial court held = spot zoning)
                               ii.            Holding = Not invalid bc 1) not spot zoning  – (it reflects interest of community to do so and is not arbitrary and capricious) and 2)  not a violation of the city's overall plan because zoning ordinances designed to reduce congestion
                              iii.            COURT’s analysis:
a) Legal standard = not unlawful unless 1) unreasonable or arbitrary action or 2) abuse of discretion of law    
                                                                                        A. Reynolds: but that offers us nothing more than Due Process Clause!  Tells us that as long as you meet Due Process, City can do anything.
b) Spot zoning is obnoxious to law BUT when done to further comprehensive plan then ok bc it was designed to serve best interest of community as a whole
                                                                                        A. Falls within scope of zoning regulations (health, safety, morals)
                                                                                        B. Private interest must yield to public interest
                             iv.            Notes:
a) Concerns:
                                                                                        A. Tension: Zoning is supposed to provide predictability + stability
                                                                                        B. With stroke of a pen, transferring wealth from one property to another (next door neighbor’s house goes down in value)
b) Reynolds:
                                                                                        A. COURT rules not spot zoning.  Why? Serves best interest of the community! BUT: spot zoning says nothing about best interest of the community.
c) Only state that allows Planning Commission final authority
d) 2 Extremes:
                                                                                        A. Lots of Deference = Bartram
                                                                                        B. Here are 8 Standards = Illinois
                                                                                        C. In the middle = Fasano
e) When are zoning changes legitimate?  Possible options: 1)substantive standards, or 2) tighten procedural requirements
d.      Floating Zones and Quasi-Judicial Decisions
                                 i.            Floating Zones = rezoning that exists in text of Ordinance but only comes to Earth when landowner requests it
                               ii.            Fasano v. Board of County Commissioners of Washington County (Oregon, 1973)
a) Facts = Land owner applied to change zone to allow mobile park.  Failed to win Planning Commission but Board of County Commissioners approved it bc it “meets needs of urbanization over that allowed by existing zoning”
b) Holding = Rejected approval.  Not enough
c) Notes:
                                                                                        A. Court rejects earlier: broad presumption of validity + deference to Legislature.   Why?  Because zoning decisions = administrative + quasi-judicial.  (One parcel owned by one person – not a broad public decision)
                                                                                        B. What does court require now?