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Land Use Planning
University of Mississippi School of Law
Pace, Niki L.

Professor Pace
Fall 2013
I.       History and Practice of Land Use Regulation
A.     Origins of Land Use
                                 i.      Comprehensive Zoning
a.       Cities first comprehensive zoning ordinance adopted by New York City in 1916
b.      A few years later, a federal commission formulated a model act known as the Zoning Enabling Act
                               ii.      Authority
a.       Local governments limited by the authority delegated to them by the state
b.      Municipalities adopt comprehensive plans that lay foundation for adoption of local land use laws
i.         Home Rule: authority delegated to local governments, giving them broad power to adopt laws that affect local property, affairs and government so long as they do not conflict with general or preemptive state laws
ii.       Dillon’s Rule:
                                                                                  –      narrow construction of local authority where municipal governments only have the powers which:
Ø   are expressly granted by the state legislature
Ø  fairly or necessarily implied from expressly granted powers
Ø  essential and indispensable
                                                                                  –      State law can preempt local action in areas of “statewide concern”
èa party can argue that local government has exceeded their authority
iii.     Zoning Procedure and Judicial Review
                                                                                  –      All land use laws must:
Ø  Accomplish a legitimate public objective
Ø  Allow the landowner some economically viable use of the land
                                                                                  –      Land use regulations may not conflict w/1st Amd.
                                                                                  –      Courts tend to defer to the judgment of land use regulators and impose a heavy burden on those who challenge to prove the regulation is arbitrary, capricious, not within the scope of local authority, denies an economically viable use of the land or violates other constitutional protections (i.e. equal protection)
B.      Nature of Property Rights
                                 i.      Rights of Landowners
a.       Possession: exclusive right to possess their property
b.      Exclusion: right to exclude (i.e. trespass)
c.       Alienation: right to sell including right to create lesser estate interests
                               ii.      Limits on Landowners
a.       Property rights have never been truly “fundamental:” always limits
i.         Exs: restrictive covenants, limits on right to exclude in emergency, etc.
                             iii.      Public Control of Land Use
a.       Euclidian Zoning (Village of Euclid v. Ambler Reality Co.)
i.         Issue: whether a zoning ordinance that divides P’s land into 3 separate use districts is constitutional?
                                                                                  –      Ordinance adopted under police powers delegated to village by state
                                                                                  –      State had power to enact laws to protect public health, safety, morals and welfare – chose to delegate power to zone to municipalities
                                                                                  –      P said no legitimate public interest
ii.       Holding: Valid exercise of police power because village showed that certain dangers to public lurked in random mixing of industrial, commercial and residential uses
                                                                                  –      Like w/nuisance law you mustn’t abstract considerations but consider in connection with the circumstances of the locality
                                                                                  –      Must be found that ordinance is “clearly arbitrary and unreasonable, having no substantial relationship to the public health, safety, morals or general welfare”
                             iv.      Public and Private Nuisance
a.       Only those significantly affect by nuisance have standing to bring an action
b.      Landowner is subject to nuisance action only if use is unreasonable; reasonableness determined by variety of factors:
i.         Suitability of activity on the land to the character of the place
ii.       Value to society of the alleged nuisance
iii.     Hardship on the defendant of injunction or damage award
iv.     Social value of P’s use of land v. extent to which D is harmed
                                                                                  –      Courts weigh: gravity of harm to P v. utility of D’s use
c.       Private Nuisance
i.         Definition: nontrespassory invasion of another’s interest in the private use and enjoyment of land
                                                                                  –      Odors from a reasonably clean pig farm are not a nuisance (Clark)
d.      Public Nuisance
i.         Definition: land uses that significantly interfere with public health, safety, comfort or convenience (unreasonable interferences w/a “right common to the general public”)
ii.       Violation of land use standards found in zoning laws subject violators to civil penalties (i.e. fines) or criminal penalties (i.e. imprisonment)
                                                                                  –      In most cases involving land use that interferes with public interest, zoning enforcement has replaced the public nuisance suit
e.       Zoning and the Law of Nuisance
i.         State may declare a business a nuisance if justified relating to health and comfort of the community (Hadacheck v. Sebastian)
                                                                                  –      Facts: At time of purchase, land outside city limits; land sat on valuable clay bed and owner manufactured bricks in violation of city ordinance prohibiting operation of brick kiln within city limits of L.A.
                                                                                  –      Issue: Did ordinance deprive petitioner of property and use thereof?
                                                                                  –      Holding: No, because didn’t prohibit him from removing clay, just manufacturing of bricks – under police power, prohibition of manufacture could be justified relating to health and comfort of the community
ii.       Zoning doesn’t necessarily trump nuisance claims
                                                                                  –      i.e. neighbor brought suit against D using cannon to scare away birds; D had permits and was permitted under zoning ord. but court said still nuisance
iii.     Law of private nuisance can be used to protect landowner’s right in private use and enjoyment of his land, including access to sunlight (Prah v. Maretti)
                                                                                  –      Facts: D purchases property and neighbor doesn’t want him to build home that would block sunlight going to his solar panels; P claims he is entitled to “unrestricted use of the sun and its solar power;” D says he is in compliance with all rules and applicable laws
                                                                                  –      Issue: Does theory of private nuisance apply to access to sunlight?
                                                                                  –      Holding: P is trying to protect energy source, not aesthetic – there is a societal interest in developing alternative sources of energy
Ø  Law of nuisance can be used to protect landowner’s right of access to sunlight because it will not prevent land development or hinder use of adjoining land – depends on circumstances though
iv.     Standard for removal of covenants (W. Alameda Heights)
                                                                                  –      Facts: class action to restrict construction of shopping

se regulations cannot be “ultra vires,” beyond the scope of local authority; local govs. can only exercise power delegated to them by state
v.       Takings – must not effect a taking of private property for public purpose w/o just compensation
vi.     Vested Rights – limits authority of municipality to impose new regulations on existing investments in land (i.e. completed structures, projects already approved)
vii.   Preemption – cannot control matters whose regulation is preempted by state leg.
viii. 1st Amd. Rights – cannot abridge freedoms of speech, expression, & religion
b.      Zoning practice varies from state to state, but land use governed by 5 basic techniques:
i.         As-of-Right Uses and Accessory Uses:
                                                                                  –      certain land uses are permitted as principal and primary uses of land
                                                                                  –      accessory uses found in association with principal uses but are incidental and subordinate to them are permitted as-of-right
Ø  Ex: single-family zoning district – single family home is principal use and garage or shed is allowed as an accessory use
ii.       Nonconforming Uses
                                                                                  –      Use of land that was in existence when zoning restriction was adopted and is prohibited by that restriction
                                                                                  –      Because of landowner’s investment in use, most zoning laws permit nonconforming uses to continue but not to be expanded unless they are a threat to public health or safety or abandoned
iii.     Variances
                                                                                  –      If proposed use of property does not conform to zoning restrictions, it can be authorized by a use or area variance
Ø  Use Variance: allow use of buildings and parcels for purposes otherwise prohibited by zoning law
Ø  Area Variance: given because of practical difficulties of owner to comply with dimensional or physical reqs. in zoning regs. (i.e. height or setback)
iv.     Special Use Permits
                                                                                  –      Zoning law can authorize other uses to be made of land w/special or conditional permit issued by a local administrative agency
Ø  Ex: religious institutions, nursing homes, day care centers, etc.
                                                                                  –      Usually uses that are harmonious with as-of-right uses, i.e. permits will only be granted when they will not negatively impact adjacent properties
v.       Rezoning
                                                                                  –      Where a proposed use is not permitted by one of the above devices, property owner may request that local gov. rezone the property granting as-of-right use
                                                                                  –      Different vies of what constitutes valid zoning regulation:
Ø  Restrictive: zoning is rigid and locality is constrained by literal reading of enabling statutes; zoning regulates “use” not “user”