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

Land Use Planning
Fall 2015
       I.            Introduction:
a.      Inherent Rights in Property
                                                              i.      Right to exclude, alienation of property, can’t be taken without just compensation, right to sell
                                                           ii.      Is there a right to run an illegal business on property? No.
b.     Effect of Zoning on the Law of Nuisance:
                                                              i.      Prah v. Maretti – Plaintiff sued for access to sunlight.  Defendant built house that might obstruct plaintiff’s access to sunlight.  Circuit court denied the claim because defendant was in compliance with local zoning and building codes.  Appellate court reverses that decision because compliance with zoning codes does not prevent a nuisance action.
1.     Doctrine of Ancient Lights – kind of like an easement – if you’ve had access to sunlight, then you have a right to maintain access to sunlight
2.     Main Takeaway – You can have a nuisance even where defendant is in compliance with zoning laws.
                                                           ii.      NIMBY – Not in My Back Yard.  We like electricity, but we don’t’ want power plant in our backyard.   The next case deals with this concept.
1.      Burch v. Nedpower – Defendant wanted to build around 200 wind power turbines.  Plaintiffs claim nuisance – that it would be noisy, that it would cause flickering when sun was low, and it would decrease property value.  Defendants argued that the public service commission approved the construction.   Appellate court here said that there is no statute to indicate that the public service commission could effectively prevent an action for nuisance.  Appellate court said wind farm could be a nuisance under certain factual scenarios.  Court did say that wind farms are not per se nuisances. 
c.      Servitudes, Easements, Covenants and Alternative Forms of Land Use Control
                                                              i.      West Alameda Heights v. Board of County Commissioners – Plaintiffs sued after owner of tract of land tried to convert residential area to commercial purpose.  Defendant argued that the use surrounding the residential area had completely changed.  Plaintiffs argued that restrictive covenants should prevent commercial use of property. 
1.     Main Takeaway- The court says when considering validity of a covenant, courts will only look to the land implicated by the covenant. Therefore, servitudes (like a restrictive covenant) can trump zoning.
a.      General Notes:
                                                              i.      10TH Amendment Police Power – limitation is that is must be rationally related to purpose
                                                           ii.      Local Legislature has authority to rezone property.  We need to be flexible and needs to be responsive to needs of community.  However, they do not have to rezone upon request.  This is a discretionary function of the local government.
1.     Osiecki case – comprehensive plan envisioned a different type of land-use.
                                                         iii.      Conditional Zoning/Spot Zoning –
1.     Spot Zoning – area has a general use (residential) but a specific lot may be zoned differently (commercial).  This is for the benefit of the owner/property.
2.     Conditional Zoning – benefits the community, public welfare, etc but NOT necessarily the owner.
a.      This is suspect by the court, so it must be in the public interest.
 III.            Zoning – Flexibility – Administrative Options – Variances and special uses
a.      Intro Materials:
                                                              i.      Variances can be either area or use.
1.     Area Variance – do something on the lot that conflicts with zoning ordinances
2.     Use Variance – use of the land for a purpose which is otherwise not allowed or is prohibited by the applicable zoning regulations
                                                           ii.      Variance – asking for an exception from the local law.
                                                         iii.      Special Use – already written into the law, not against the ordinances.
b.     Variance Cases:
                                                              i.      Larsen v. Zoning Board – Area Variance – family wanted to add a deck on their house.  Neighbors opposed the deck because it obstructed the view.  However, the construction would have violated zoning ordinances. The trial court felt that variance was warranted so owners could have “reasonable use/enjoyment” of their land.  However, the appellate court points out that the owners added on to the house, so they actually created the hardship. Variances should be evaluated based on the characteristics of the land not the family. 
1.     Pennsylvania Test (page 180-181) – but unnecessary hardship test is the most important aspect. 
2.     Factors of Unnecessary Hardship Test (From Pennsylvania Law):
a.      Needed to avoid

d.     Nonconforming Use – this happens when use has been ongoing and zoning changes.  This might happen when there is a family farm but the city grows out toward the farm.  The farm came before the city.  But the ultimate goal is to achieve uniformity.
                                                              i.      Expansion or Extension – owners would have to go to zoning board to get approval for expansion of a nonconforming use
                                                           ii.      Discontinuance – for some period of time, the use was stopped.  What happens when we discontinue? This might depend on why or for how long. There are ways to lose your right to nonconforming use. It most cases, this happens in complete abandonment, but some laws may define a time period.  (Oxford’s time period is 18 months).
1.     Toys “R” Us v. Silva – in this case, the property had been used as a warehouse (by Morgan).  When the building was built, the entire area was zoned as retail.  The property was foreclosed and TRus leased the property.  At the time of the lease, the area had been zoned differently. 
a.      NY Requirement – Substantial discontinuance (rather than complete) for two years.  The time-frame removes the intent issue, it just matters that you did for x-amount of time. 
                                                         iii.      Destruction
1.     Moffatt v. Forrest City – Meat market was a nonconforming use, but it burned down.  They looked at total costs, the zoning board prevented rebuilding when 60% or more is damaged/destroyed.  The Moffatts wanted to consider the costs separately (two thirds of cost was for residential part, and only one third was attributable to the business).  However, the city looked at the entire cost together (refused to compartmentalize).  The event, not the regulation, stops you from nonconforming use (“but for” cause). Percentages vary by jurisdiction. 
                                                         iv.      Accessory Uses – tag onto primary use – primary use is residence, accessory use is a garage.