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Land Use Planning
University of South Carolina School of Law
Hubbard, F. Patrick

Land Use outline

Need more information about subdivision regulations


Land use regulated at many different levels

Federal-constitution and statutory
State-constitution and statutory

i. State passes enabling act which sets parameters for how lgu can create zoning ordinance
ii. Enabling act generally does three things
1. Mandates creation of a comprehensive plan
2. Allows enactment of a zoning ordinance
3. Allows the lgu to delegate administrative authority to appointed boards
a. Must delegate authority with specific guidelines to make sure there is no arbitrary abuse of discretion


i. Zoning is not mandatory
ii. Judge will not take judicial notice of local ordinances so must get them in as evidence or a stipulation

Responsibilities of groups at local level

City council

i. Create zoning ordinance and mao

Planning commission

i. Make recommendations to council about ordinance and maps

Board of Zoning Appeals

i. Appeals from zoning administrator decisions
ii. Variances
iii. Special exceptions

Design Development Review Committee

i. Must approve site plans for particular districts

How the deck is stacked in favor of the local government

Judicial deference to legislative decisions

i. Courts generally don’t require legislative decision makers to give reasons for their decisions so this allows post-hoc reasons to be developed and if any one reason is sensible then it probably will pass muster
1. Rare to find that there is no reason other than a bad reason for a decision
a. Bad reasons-outright discrimination, manipulating property value prior to a condemnation or to increase tax revenues, limiting competition
ii. However, bureaucrats are not entitled to same deference, no post-hoc reasoning allowed for them-generally they must provide reasons for their decisions
1. When council votes on matter, do they have to provide reasons for adopting/not adopting?


i. Pullman
1. complaint touches a sensitive area of social policy upon which the federal courts should not enter unless there is no alternative
2. determination of constitutional issue is not needed because the state issue can be settled determinatively
ii. Burford
1. courts can abstain out of proper regard for the rightful independence of state governments in carrying out their domestic policy
2. applies to land use policies whe the plaintiff’s federal claims stem solely from construction of state or local land use laws and do not involve the constitutional validity of those laws unless there is some exceptional circumstance
iii. Younger
1. have to exhaust state court remedies before you get to federal court
iv. Rooker-Feldman doctrine

Presumption-zoning ordinances have a presumption of validity
Dylan’s rule v. home rule

i. Dylan’s rule-if the state does no expressly authorize lgu to do something then lgu can’t do it without exceeding power
1. Fewer of these
ii. Home rule-construe statutes and constitution liberally to allow lgu to act
1. SC is ostensibly a home rule state now


i. Must have exhausted all administrative and state court remedies before you are allowed into federal court

Burden of proof is on plaintiff and often is a high standard of proof

i. Some states it is clear and convincing
ii. In sc may be beyond a reasonable doubt but not sure

Nature of action

i. If court classifies the action as legislative then there is greater deference than if it classifies action as adjudicative or quasi-judicial

Court might refuse to hear a case about a denial of discretionary permit (such as rezoning or a special exception) because the land owner has no property interest in receiving the permit unless there was a strong likelihood that the application would have been granted

i. But this is a rare approach because there is an ownership interest in the land itself and not just the requested permit

Types of land use restrictions

Private restrictive covenants
Action for nuisance

Right to use your own land can be limited by the government

Must balance your right to do anything with your own land with your neighbor not wanting you to do something with your land
Your rights can conflict with your neighbor’s rights, therefore rights are limited
It is within government’s police powers to regulate the “orthodox quartet”

i. Public safety, health, morals, welfare
ii. One of these must provide the basis for the government limiting your right to use your property as you wish
iii. Welfare is sort of a catchall where we now have aesthetic regulation


First type of zoning was Euclidean

Distinct districts each with a particular type of zoning
No mixture of districts except where zoning was cumulative

re limited than for adjudicative
b. Complainant has burden of proof
iv. Beyond this the procedure becomes more adjudicative
1. Generally do not have right to cross examine witness but you usually can reply to an opposing position
2. Rare to allow “discovery” in a legislative decision
v. Factors to consider to determine whether something is adjudicative or legislative or something in between
1. Number of parties and variables relevant to issue
a. More parties and more variables-more adjudicative
2. impact on one person (or a class) or public at large
a. One person-more adjudicative
3. Clarity of objective guidelines that must be followed
a. Less clear is more adjudicative
4. necessity for nonlegal expertise
5. necessity for independent fact finding


When govt takes land either physically or through a regulation, they must compensate landowner

i. If compensation were not required then govt would overconsume and take too much property to the detriment of landowners’ property rights
ii. Ability to own property limits govt power and if govt can take whatever they want then there is no limit on govt power and it decreases stability in society

When there is a taking, we generally presume there is a valid public purpose
Generally decide these cases on a case-by-case basis and there are not really any bright line rules
Types of takings

i. Three factors in any taking case-time, land area, lost economic use
ii. Physical occupation of property
1. If there is a permanent physical invasion then there is a per se taking
2. A side issue here-govt tells a subdivision owner that he has to put in a bigger sewer pipe than the subdivision needs to accommodate future development
3. If you get some benefit from the invasion (cable TV, sewer service) then your damages are going to be low
a. Ex. Loretto-installed tv cable on building, building benefited and there really were no damages, got $1-symbolic only. Is it worth fighting for that?
iii. Physical taking by eminent domain