Land Use Planning
Hubbard
Spring 2015
I. LAND USE PLANNING OVERVIEW
a. TYPES OF LAND USE RESTRICTIONS
i. ZONING
ii. PRIVATE RESTRICTIONS & COVENANTS
iii. NUISANCE ACTIONS
II. ZONING
a. OVERVIEW
i. LAND USE REGULATED AT DIFFERENT LEVELS
1. FEDERAL:
a. US CONSTITUTION: takings clause, due process clause,
b. FEDERAL STATUTES: FHA, FHAA,
2. STATE:
a. STATE CONSTITUTION
b. STATE STATUTES
i. STATE ENABLING ACT: sets parameters for creation of zoning ordinances by local municipalities and typically includes the following:
1. Mandate to local municipalities to create and implement comprehensive plan
2. Permission for local municipalities to enact local zoning ordinances (usually NOT mandatory)
3. Permission for local municipalities to delegate administrative authority to appointed boards – i.e. DDRC, BOZA, planning commission
a. NOTE – municipalities must be careful to delegate authority in such a way that does not create an arbitrary abuse of discretion or due process issue
3. LOCAL:
a. ZONING ORDINANCES
i. NOTE – courts will not take judicial notice of ordinances, rather they must be introduced in evidence or as stipulation
ii. LOCAL GOVERNING BODIES
1. CITY COUNCIL: responsible for passage and creation of zoning map & ordinances
a. PLANNING ADMINISTRATOR & STAFF:
2. PLANNING COMMISION: makes recommendations to city council regarding the passage and creation of zoning map & ordinances prior to council’s decision
3. BOARD OF ZONING APPEALS (BOZA): delegated authority to review appeals from zoning administrator’s decisions, variance applications, and special exception applications
4. DESIGN DEVELOPMENT REVIEW COMMITTEE (DDRC): delegated authority to review and approve site plans within specified districts
b. CONSTRAINTS ON ZONING AUTHORITIES
i. CONSTITUTIONAL PROTECTIONS OF LAND OWNERS
1. OVERVIEW
a. TYPES OF CLAIMS
i. SUBSTANATIVE DUE PROCESS CLAIMS
ii. PROCEDURAL DUE PROCESS CLAIMS
iii. TAKINGS CLAIMS
iv. EQUAL PROTECTION CLAIMS
b. STANDARDS OF REVIEW
c. BURDEN OF PROOF
d. FACIAL V. AS APPLIED ANALYSIS
e. STATUTES OF LIMITATION
2. SPECIFIC APPLICATIONS
a. CIVIL LIBERTIES CHALLENGES
i. FREEDOM OF SPEECH
ii.
b. RIGHT TO COMPETITION CHALLENGES
c.
ii. STATUTORY PROTECTIONS OF LAND OWNERS
1. PREEMPTION OF LOCAL ORDINANCES
2. IMPROPER DELEGATION OF AUTHORITY
3.
iii. Limited Scope of Gov’t Authority to Act
1. Police Power – authorizes gov’t to impose rules in order to further the following:
a. Health
b. Safety
c. Morals
d. General welfare (typically treated as a catch-all by courts)
i. Economic
ii. Historic
iii. Aesthetic
2. General rule:
3. As-applied challenges – Nectow v. City of Cambridge
a. Issue: Does a zoning ordinance which rezones a small portion of π’s property from industrial to residential such that there is comparatively little value and no rational purpose for the rezoning?
b. Holding: Court upholds master’s finding that the application of the ordinance does not satisfy requirements of police powers that there be a rational purpose, thus the ordinance violates DPC and is struck down.
i. Likely wouldn’t succeed
xpert witnesses may be used to establish police power rationale
3. Standard of Proof – varies, but most likely preponderance of the evidence, may alternatively be clear and convincing
vi. FAIRNESS ARGUMENTS
1. DISCRIMINATION – Equal Protection Claims (apply rational basis test)
a. Layne v. Zoning Board of Adjustment
i. Distinction made along basis of provision of meals to occupants of rooming houses (no meals) and boarding houses (meals) – permissible
b. Village of Willowbrook v. Olech
i. Equal protection and substantive due process can be used for classes of one – punitive motivations for ordinance targeted at one individual – not permissible
2. FISCAL PURPOSES – generally disallowed – burden on gov’t to show that it is not the motive
a. Increase tax revenues
b. Reduced purchase price of land
c. Doesn’t apply to motivations such as reducing costs (police enforcement)
c. TAKINGS
i. Mugler v. Kansas
1. Permissible for state to change rules on alcohol and prohibit use of building and land for distilling purposes – not necessary to compensate owners
2. Distinction between personal and real property – much more aggressive in allowing taking of personal property than real property
ii. Pennsylvania Coal Co. v. Mahon
1. Taking of single, private house
2. Denominator problem
3. Temporary taking
