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Land Use
University of Minnesota Law School
Burkhart, Ann M.

Land Use

Ann Burkhardt – Fall 2014

Competing Interests

1. State’s rights (equal footing doctrine: states control land within their borders)

2. Protection of private property rights (most other countries focus on public good)

Equal Protection Challenge

Courts work to protect:

1. Suspect class: historically discriminated groups such as race, national origin

2. Fundamental rights

Standard of Review:

1. Strict scrutiny: uphold only if necessary to promote a compelling government interest

– Applied when a fundamental right or suspect class is affected

2. Intermediate scrutiny: invalidated unless substantially related to important government objective

– Applied when a quasi-suspect class such as gender is affected

3. Rational relationship standard (plaintiff loses standard): statute only needs to conceivably bare a rational relationship to a legitimate government purpose. Plaintiff has the burden of proving the law is irrational under this standard of review, whereas the government bares the burden of proof for strict and intermediate scrutiny.

– Applied when neither a fundamental right or suspect class affected (typically SES)

Step-by-Step Analysis

1. Is there a classification?

2. Is the statute under- or over-inclusive?

3. What standard of review applies?

Procedural Due Process

1. Is the plaintiff being deprived of a property interest?

2. If so, what process rights are you entitled to?

– Depends upon how great the burden

Substantive Due Process

1. Is there a public purpose?

2. Is the statute rationally related?

3. Is the benefit of the law greater than the burden? (balancing test)

Equal Protection

Impermissibly treated differently; similarly situated but treated differently (classifications)

Law can be under- or over-inclusive (too few people or too many people governed)

Ultra Vires

Acted outside the scope of its authority

– Some cities must have zoning that complies with the comprehensive plan

Facial versus As-Applied Challenge

Facial: on its face, this statute cannot be enforced constitutionally

As-Applied: the statute itself is okay, but due to the unique circumstances, the statute should not be applied in the current situation

– Independent relief sought


– State power

– Some states require a comprehensive plan prior to zoning

– Only a few states require zoning to align with a comprehensive plan


– Being in compliance with zoning law does not insulate from nuisance

– Nuisance can result from operations

– Trespass differs b/c trespass requires a physical invasion and focuses on possession


1. Intentional conduct

2. Actual interference with use and enjoyment resulting in substantial harm

– Does not require a physical invasion

– Do not have to possess the land, merely have an interest in the land

3. Unreasonable interference

Types of Nuisances:

1. Public: large number of people affected or the use breaks the law

– Must be brought by a public official unless experiencing a special injury

– More likely to get an injunction

2. Private

– More likely to receive damages

Issues with nuisance law:

1. Lot by lot process that can be very time consuming

2. Unpredictable, uncertain results

3. Reactive because anticipatory nuisances are difficult

– But resident does have to put the owner/operator on notice, otherwise resident may be estopped from a nuisance claim

– Once a potential nuisance has started courts may balance interests/hardships

Benefits of nuisance law over zoning

1. Nonconforming uses are typically grandfathered into zoning ordinances

2. Provides relief, either injunction or damages

Example discussed in class: jet ski

Businesses Moving to the Burbs

1. Brownfields: current owner can be liable for toxic substances in the soil and are required to do the clean up

2. Going to their workforce

3. More space available

4. Lower property taxes

Families Moving to the Burbs

1. Beaver Cleaver factor

2. Fear of crime

3. More space for cheaper


1. Loss of tax base

2. Greater % of population needing social services (translators, mobility)

3. Increased class and racial se

an action provided that it meets the requisites of intent, substantiality, and unreasonableness; in practice, this means that if “[t]he harm is of a type that would offend a person of average sensibility and is of a continuing nature, it would adversely affect the value of the land itself, and a nuisance may be found.

b. Public nuisance: affects the public at large, need not be connected to land, and is normally enforceable by public officials

i. Conduct may give rise to a parallel private nuisance if private lands are also affected.

c. Typically seek injunctive relief (pg. 70)

i. Some courts hold that plaintiffs entitled to injunctive relief as a matter of right if nuisance found.

d. Priority in time important factor (pg. 71)→almost creates an easement

i. Method for imposing a duty to compensate on the intruding use

1. Issues discussed (pg. 74)

e. Case law

i. Bove v. Donner-Hanna Coke Co. (pg. 63): Appellant was resident of the locality for several years before the defendant started operating a large coke oven where a hickory grove used to be, but defendant’s use is permitted in this zone. “Residence is built in an area naturally adapted for industrial purposes and already dedicated to that use…the fact that the plaintiff has voluntarily chosen to live in the smoke and turmoil of this industrial zone is some evidence, at least, that any annoyance which she has suffered from the dirt, gas and odor which have emanated from defendant’s plant is more imaginary and theoretical than it is real and substantial.”

ii. Boomer (pg. 71): NY court expressly adopted rule that court exercise its equitable discretion to refuse injunctive relief when there is a gross disparity between the economic consequences of the nuisance and the injunction. Payment=amounts of permanent damage