Professor Louis Sirico – Land Use and Planning Outline
Fall 2016
Class #1 – Land Use 8/23/16
State Level (Authority goes Top to Bottom)
State Zoning Enabling Act and Municipalities Planning Code (MPC)
Most Zoning Laws are the same no matter what State you are in
Local level Statutes are called Ordinances
Zoning and Planning Commissions
UDELL v. HAAS (pg.21)
Developer wants to develop northern most piece of land near Lake Success. Local Zoning Commission downzones the area to Residential Use only. Question is can they do this?
Standard State Zoning Enabling Act (pg.65) à Where would the Local Zoning Commission find the authority to rezone?
Section 3 – Purposes in View
“Such regulations shall be made in accordance with a Comprehensive Plan and designed to lessen congestion in the streets…”
Issue here was that Lake Success didn’t have a Comprehensive Plan and still rezoned
Court says while there is no plan, if we look at history of this village we can find a plan. History of the village showed a plan for “Business Zoning.”
Found that after the rezoning was enabled, then the zoning commission hired an expert (after the fact) to tell them why the rezoning needed to take place à would be less traffic congestion and it is the feeling of the Village that this rezoning needs to take place.
Court finds rezoning invalid because it was not in accordance with a Comprehensive Plan.
Zoning is not just about the rules, but includes a lot of politics as well
Comprehensive Plan (Tests put limits on the discretion of local governments and to what extent can the system actually stop abuses):
Means must have a written document that is a Comprehensive Plan
Look at History of the areas Zoning Plan
Rational Basis Test à Look at the decision to rezone and say “Is there a Rational Basis for this?” Is there a Rational Basis to Rezone?
Hard Test – Maybe there was a mistake with the original ordinance or that circumstances changed requiring a change in ordinance à Burden on Local Government
Various Factors – Who Benefits? (Helps private interest or general community?)
Sovereignty
All of the powers of government culminating at its peak and emanating downwards
Every State has their own sovereign rights
Difference between delegation of Sovereignty and Delegation of Powers
Delegation of Sovereignty à Federal government is limited only by the Constitution
Have the power to do anything other than what is limited by the constitution
Delegation of Power – When a governmental entity has the sovereignty/power to pass laws against local government (created by the legislatures of the respected states and have the powers only delegated from those State legislatures, nothing more à Dillion’s Law – no universal police power of the local gov’t, only have the power delegated to them à Narrowly construed)
In this particular area you may only govern to the extent of your delegation
How does Local gov’t exercise their delegated powers?
Ordinances
Interpreting an Ordinance – To be interpreted most broadly in favor of property owners’ rights
Levels of Government – Federal, State, Local
Executive
Administrative
Judiciary
Very distinct at the state level, and same capacity at local level but the same people where different hats
Class #2 – 8/25/16
Village of Euclid, Ohio (D) v. Ambler Realty Co. (P)
Ambler realty said if you look at the ordinance generally it is unconstitutional and not authorized by the police power à Facial Challenge (Ordinance is invalid on its face despite any facts of the case). Not authorized by the police power (government regulation for safety, health and welfare
As-Applied Challenge – Even if the ordinance is valid, if it is applied to my particular piece of property it is invalid. à Not argued here but 1 of the 2 types of challenges against ordinances.
Zoning is Authorized by Government and Government’s claim that zoning was under/acceptable form of their police power was:
Nuisance – Government can stop a Nuisance
Also to stop things that are near Nuisances
Apartments were an example by the Village of a near Nuisance – Too many people living too close together, parasidic, too high of density
They tied apartments to fires, traffic accidents, etc.
Cumulative Zoning
Higher up from U-2 to U-6, U-2 is very specifically zoned and U-4 and U-6 is zoned for everything under it (U-2 and U-4) and zoned for its purpose as well
Historical Context
Justice Sutherland – New Deal Court invalidating social Legislation, most frequent judge to have his ruling overturned.
Given this historic why did the Court accept the legality of Zoning.
Justices lived in single-family residences and going against having zoning would negatively effect their lives personally.
Nectow v. City of Cambridge
Nectow owned land for industrial purpose and then Cambridge’s Zoning came in and zoned for residential use limiting Nectow’s property. Also made residential smaller by expanding Brookline Street
Nectow goes to building inspector and seeks a permit to use all property for industrial use, but was denied
As-Applied-Challenge
Before the ordinance was passed Nectow signed contract to use land for Industrial use
Permit would allow him to make a constitutional challenge as applied to him for 14th amendment Due Process taking of property.
Nectow wins but Court’s opinion is muddy.
Court says extend the industrial use all the way to Brookline Street, but court didn’t have the means to enforce that so they appointed a Master, legal land use scholar with no interest in the case who makes a recommendation.
Master says that the Zoning ordinance did not enhance the safety and public welfare and therefore was a Due Process taking.
What argument did Nectow make?
A taking argument
Why did Cambridge zone the property that way?
Didn’t want anyone to build there and created a buffer between the industrial zoned property and the residential zoned property knowing that nobody would build there.
Elements incorporated in where to plan land
o sell furniture, such as Hernandez’s store
Facial Challenge brought by Hernandez’s against the ordinance
State says purpose of the ordinance was to regulate economic competition à it is invalid to regulate competition through ordinances.
But State gets around this by saying that their real goal was to protect the downtown area and not have small stores that could ruin plan for downtown area à Zoning for City planning is valid.
Hernandez’s also make equal protection claim against small stores à that argument looses because it wasn’t a racial/ethnic equal protection challenge, therefore gov’t only had to prove a rational basis for the ordinance and did indeed pass it.
How to make districts more flexible à Change Ordinance
Who can change Ordinance à Local legislative Body (City Council, etc.)
Spot Zoning:
What is wrong with Spot Zoning? Legal Arguments?
Comprehensive Plan à Spot Zoning like this is not in accordance with Comprehensive Plan
No Rational basis, violates Substantive Due Process
Plain Grains Limited Partnership v. Board of County Commissioners of Cascade County
Spot Zoning Case
Montana Agricultural Area à County Level Legislation (County Commissioner)
Area is zoned to be agricultural and legislation re-zones very small area for industrial use of Coal-Fire Plant.
Plains Grains opposes this because they process grain in the area and they think that the coal-fire plant will contaminate the grains.
Court applies 3-factor Little Test (Don’t to prove all) to determine if this re-zoning is a Spot Zoning.
Elements of the 3-part Little Test
(1) Does proposed use (Industrial) differ from the prevailing (Agricultural) use of the area?
Yes
(2) Is the Area being re-zoned rather Small?
Yes, 668 acres in Montana is rather Small
(3) Who Benefits? How many Landowners will benefit?
Only 1, the coal-fire plant owners
Despite the presumption of validity that the Ordinance gets, the local government looses. Test is a way to prove if there is a Rational Basis.
General Notes:
Municipalities Planning Code is the delegation of powers to lower legislations à Meets definition of Dillion’s Rule.
Can’t ignore the people’s wants for the purposes of Land Planning
Much easier to challenge an ordinance than to challenge a use.
Challenges of use are viewed most broadly for the property owner
“Anyone of the following uses are permitted” à Must choose one use per lot
