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Land Use Planning
University of Kentucky School of Law
Moore, Kathryn L.

Land Use Planning
Moore Fall 2009
Means of Regulating Land Uses
Nuisance Law
Private Methods
Subdivision and Building Codes
Property Tax Systems
Division of Major Services
I.          Nuisance Law
·         Common law doctrine that protects a landowner from his neighbor’s unreasonable use of the land. Absent zoning, nuisance laws control competing uses.
o   Private Nuisance – affects a limited number of individuals
o   Public Nuisance – use that interferes broadly with public rights: clean air, water, morals, safety.
o   Nuisance Per Se – is a nuisance in any location
·         TEST:
o   Does D’s use constitute a nuisance – Balance the Affect on P’s property and D’s property rights.
o   Remedies: The traditional remedy is an injunction, but in rare cases P receives damages. 
§ Compensated injunction – P has to pay D.
§ When an injunction is not granted, damages are higher
·         Bove v. Donner-Hanna Coke (NY 1932)
o   Defense – Coming to the Nuisance –
§ Looks at when the P bought the property
§ Is the property particularly adopted for a certain purpose?
o   Factors
§ Value of the activity to the D and to society
§ Necessity of the activity – is there a better way to operate?
§ Coming to the nuisance
·         Spur Industries v. Del Webb (AZ 1972)
o   Compensated Injunction – because P came to the nuisance and it is a public nuisance, the court ordered an injunction, but ordered the P to pay the D damages.
§ Limited cases – where the developer has foreseeably developed in an agricultural or industrial area.
II.        The Takings Clause
·         In general, the Fifth Amendment prohibits governmental taking of private property “for public use without just compensation”
o   This prohibition is applicable to the states through the Fourteenth Amendment.
o   5th Amendment is not a grant of power, but rather a limitation on power
·         “Public Use”
o   Generally, the court will not review underlying policy decisions. It will uphold the use as long as it is rationally related to a legitimate public purpose (health, safety, welfare, or morals).
o   Can’t take private property for a private use
o   Kelo v. City of New London (US 2005) – condemnation of perfectly good house to revitalize downtown area.
§ Court interprets public use to mean public purpose
§ After this case, 23 states enacted laws that prohibited condemnation except in cases of blight (but what does blight mean)
§ State constitutions can offer more protection – all but three have takings clauses
§ Deferential to the local legislatures
·         “Just Compensation”
o   The owner is entitled to the reasonable value of her property at the time of the taking. The reasonable value is the fair market value. The test is the loss to the owner, not the gain to the taker.
·         Remedy: Pay the property owner just compensation, or terminate the regulation and pay for damages.
·         Per Se Takings
o   Denial of All Economically Viable Use – If a government regulation denies a landowner of all economic use of his land, the regulation is equivalent to a physical invasion and thus taking principles apply. 
§ First English (US 1987) –inverse condemnation –P couldn’t use land for 7 years –  denial of all economically viable use. Temporary – but distinguished from ordinary administrative delays. Temporary taking – damages for a certain period of time.
§ Temporary denials of all economically viable use – do not constitute a per se taking.
·         Tahoe Regional Planning – no taking where there was a 32 month moratorium on land development in Lake Tahoe area while a comprehensive plane was being developed for the area.
§ Decreasing Economic Value – regulations that merely decrease the economic value of the property do not necessarily constitute a taking, so long as the regulation leave some economically viable use. (Penn Central)
§ Conditional Building/Development Permits – such conditions do not automatically constitute a taking unless:
·         The government cannot show that the condition relates to a legitimate government interest
·         The adverse impact isn’t roughly proportional to the proposed development or building
o   Permanent Physical Invasion – A taking will almost always be found if there is an actual appropriation or destruction of one’s property or a permanent physical invasion by the government
§ Lortto v. Telepropter Manhattan CATV (1982 US) – installation of cable TV wires constituted a per se taking as the wires constituted a physical invasion. The wires only took up 1/8th of a cubic foot.
§ Nolan (US 1987) – Easement on beachfront lo

DC(DC 2003)
Substantive due process protects only egregious government misconduct
A substantial infringement of state law prompted by personal or group animus
OR A deliberate flouting of the law that trammels on significant personal or property rights
Special exception required for university use – not a protected class
Village of Willowbrook v. Olech
Class of One – P’s connection to a water line conditioned on a 30 foot easement. A 15 foot easement was customary. 
Court dismissed the case for failure to state a claim – P didn’t allege membership of a class group.
Exclusionary Zoning
Economic – rational basis review
Federal – housing is not a fundamental right and poverty isn’t a suspect class
NJ constitution – housing is a fundamental right
Builder’s remedy – low income housing.
Fair Housing Legislation – forbids racial discrimination in housing
IV.       Zoning
Zoning Regulations Challenges
Johnson v. Town of Egartown (MA 1997)
Challenger must prove beyond a preponderance of the evidence that the zoning regulation is arbitrary and unreasonable and is unrelated to public health, safety, welfare, or morals.
Fairly debatable standard – applies to municipalities
Single Family Uses
Village of Belle Terre (US 1974)
Group of students living together = not a protected class = rational basis review
Moore v. City of East Cleveland (US 1985)
Statute failed rational basis review
Hammer v. Best (KY)
Zoning ordinances in derogation of the common law that deprive property owners use of their land are strictly construed.
Residential treatment center doesn’t meet definition of “family”
Accessory uses – doesn’t require a permit, but can’t be the primary use.
Manufactured housing – can’t be exclusionary zoning.
Nonconforming Uses – use that is legal before the zoning ordinance